For Northeast India's Safety Arm Forces Special Power Act (AFSPA) Should Stay

By: Dr Suvrokamal Dutta
Submitted: 2007-01-17 16:25:26
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While the campaign against the Arm Forces Special Power Act (AFSPA) in Manipur and elsewhere in the North East has been going on for many years, it was the arrest and custodial killing — including the alleged rape or sexual molestation — of a young Manipuri woman named Manorama Devi in 2004 that sparked off a more intense movement. Since that incident Manipur and other areas of the Northeast has been simmering. Prime Minister Manmohan Singh promised later that year that he would set up a committee to make recommendations for a more humane law.

The 147-page report of the Justice B.P. Jeevan Reddy Committee which was set up by the Prime Minister says that it had been guided by three basic conditions while devising a solution. First, "the security of the nation, which is of paramount importance". Second, "it is equally the duty of the Union and the States to not only respect the fundamental rights conferred upon the citizens of India by ... the Constitution, they are also under an obligation to ensure the conditions wherein the citizens can enjoy and avail [their] ... fundamental rights." Third, the "armed forces of the Union are meant to ensure the defense of the Union and all its parts."

Deployment of the armed forces at times may be unavoidable, the report however stresses that "too frequent a deployment, and too for long periods of time, carries with it the danger of such forces losing their moorings and becoming, in effect, another police force, a prey to all the temptations and weaknesses such exposures involve." Such exposures, it notes, "may well lead to the brutalisation of such forces — which is a danger to be particularly guarded against."

After the alleged extrajudicial execution of 32-year-old, Ms Thangjam Manorama Devi Manipur faced unprecedented civil disobedience over the demand for removal of the Armed Forces Special Powers Act (AFSPA), 1958. Modeled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”. This act empowers non-commissioned officers to search without warrant, arrest without warrant and shoot even causing of death. The security forces enjoy virtual impunity for any excesses while exercising these unrestrained powers as no one can be prosecuted without the permission of the Central government.

Under the AFSPA, the authorities only need to be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary."

The Disturbed Areas (Special Courts) Act, 1976, can declare an area disturbed when "a State Government is satisfied that (I) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area."

However the 1972 amendments to the AFSPA took away the power from the State government and its legislative Assembly and handed it over to an appointee of the Central Government. This is despite the fact that President can proclaim emergency under Article 356 of the Constitution of India.

India is party to the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides under what circumstances state of emergency can be declared. It states, “ In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin”.

The United Nations Human Rights Committee while examining the third periodic report of India in 1997 held that India is in violation of Article 4.3 of the ICCPR. In its Concluding Observations after examination of India’s third periodic report, Human Rights Committee regretted that “some parts of India have remained subject to declaration as disturbed areas over many years - for example the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer - and that, in these areas, the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant”.

Union Home Minister Shivraj Patil has declined to make public the report of Justice B.P. Jeevan Reddy Committee. He had good reasons to do so. The report has unambiguously recommended the repeal of the controversial law in Manipur and in the Northeast.

“The Armed Forces (Special Powers) Act, 1958, should be repealed .The Act is too sketchy, too bald and quite inadequate in several particulars. The Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness." Says the report

Acknowledging that the Supreme Court had upheld the constitutional validity of the Act, the Committee said that judgment "is not an endorsement of the desirability or advisability of the Act. The Court does not — it is not supposed to — pronounce upon the wisdom or the necessity of such an enactment."

The other members of the Committee — set up by the Prime Minister in November 2004 — are Lt. Gen. (Retd.) V.R. Raghavan, P.P. Shrivastava, a former special secretary in the Union Home Ministry, Dr. S.B. Nakade, a former Vice-Chancellor of the Marathwada University, and senior journalist Sanjoy Hazarika.

The panel gave its report in June 2005 but the Manmohan Singh Government has neither officially accepted or rejected its findings. Reasons for this are many. With rapid rise in terrorism through out the country in the past couple of months coupled with terrorist violence in many places specially in the Northeast the government of India cannot take a hasty decision on the removable of this act as it could spell several dangers to the strategic security and territorial integrity of the country

The committee has also recommended amending of the Unlawful Activities (Preventation) Act, 1967 so that wherever there is violation of Human Rights by the armed forces they can be taken into task by the law. "While providing protection against civil or criminal proceedings in respect of the acts and deeds done by [the armed] forces while carrying out the duties entrusted to them, it is equally necessary to ensure that where they knowingly abuse or misuse their powers, they must be held accountable therefore and must be dealt with according to the law applicable to them."

The recommendations done by the panel has many worthy suggestions but its suggestion of scrapping away AFSPA is not justified its true there has been many instances where the army and the para military forces have violated the basic human rights of the ordinary citizens taking recourse into this law but to scrap it all together is not justified. There are many areas in the Northeast which have parallel governments run by the militant outfits such as in many remote areas on Nagaland , Manipur ,Assam and Tripura to deal with such areas and to bring them under the control of the government of India such strong terror laws are required.

When the whole country is suffering from terrible form of terrorism to scrap in such laws would be harmful to the basic foundation of the country and its unity in the long run. Northeast being in a very remote corner of India with its only connection with the rest of India by a 33 sqkms of area in the Bengal Duars called the chicken neck to allow further consolidation of the terrorist outfits in that part of the country would mean ultimately handing over this part of India to the militant groups.

Northeast India is strategically very important for India as it is surrounded by different countries from all sides some of which are hostile to India to allow such laws to go would give in a free hand to all those militant outfits which operate from across the border from those hostile countries in this part of India.

The requirement is safe guards within AFSPA so that the law becomes more humane to ordinary citizens and more stringent towards the militant outfits . The Indian government should initiate more interaction between the Indian armed forces and the local population in the Northeast so that a friendly atmosphere is created which will help in the normalization of situation and those soldiers found guilty of human rights such as Rapes, Molestation etc should be tried by the court of law and severe punishment should be given to the culprits.

Article source: Expert Articles