By Sonakshi Gupta*

 Having refused food and water for over 500 weeks now, Irom C. Sharmila is currently under trial for attempt to suicide.  Being tried for a crime that was never committed, even though every fiber of Sharmila’s being is proclaiming “I want a life of reason and dignity”. While the Iron Lady of Manipur is being forcefully fed using nasogastric intubation (just to keep her alive while under arrest), the Armed Forces (Special Powers) Act continues to daunt the residents of these ‘disturbed areas’. Irom Sharmila’s battle against AFSPA started on the 2nd of November 2000, when in Malom, Manipur, ten innocent civilians were shot to death by the Assam Rifles (one of the paramilitary forces operating in the state), while waiting at the bus stop. Among the deceased were a 62 year old woman, Leisangbam Ibetomi, and 18-year old Sinam Chandramani, a 1988 National Child Bravery Award winner, who in no way could have been potential threats to the state.  The aberrance of the Government is even more bizarre: how in the land of Gandhi, the Government has managed to overlook a non violent protest. It has been complacently ignoring the 13 year long peaceful struggle of the Iron lady of Manipur and I, for one have started questioning my faith in democracy. Sharmila’s method of agitation, her ‘satyagraha’ has illegitimately been termed ‘suicide’. It is high time her silence be heard.

Background:

 Violence had become the modus operandi in the North Eastern States of India. During 1947-49, Manipur had the status of a constitutional monarchy. But later Manipur was unified with the rest of the nation. In 1956, it was given the status of a Union Territory. Finally, in the year 1972, it was recognised as a full-fledged state within the Republic of India. The rampant violence due to the history of insurgency in the North-Eastern States and the self-determination activities of the Naga tribes could not be tackled. Neither the police nor the State administration was able to contain the internal disturbance. Thus the Armed Forces (Special Powers) Act was passed by both the Houses of the Parliament and it received Presidential assent on September 11, 1958. One of the shortest yet most draconian laws ever passed by the Indian legislative body, AFSPA gave extraordinary power to the Armed Forces to arbitrarily detain or even shoot a person, use lethal force, enter and search any premises without a warrant. And despite this underlying risk of abuse in such broad powers, neither the Act has provided adequate safeguards to protect rights of the common man nor has the Government endeavoured to do so. The vague language used in the formulation of the Act has given many accused the benefit of doubt. Impunity is the reason why citizens are losing faith in their so called ‘noble defenders’. The motto of the Armed Forces of India is to selflessly place the safety, honour and welfare of the nation before their lives. But what would disgrace shame itself is how under the legal cover of AFSPA, these ‘selfless’ defenders dastardly target the marginalised communities, ripping off their basic rights to existence. People have been forced to live a ‘life of despair’ under AFSPA with little or no redress to seek protection of their fundamental rights.

Provisions of AFSPA: A closer look

PROVISIONS EXPLANATION REMARKS
Section 2, AFSPA (1958 version) defines the ‘armed forces’ as  “military forces and the air forces operating as land forces”.   This clearly ruled out the use  of aerial bombardment in case of any conflict. However during the March, 1966 Mizo National Front uprising, the Indian Air Force did carry out airstrikes in Aizwal to suppress the revolt. The armed forces compelled people to leave their homes and dumped them on the road side to set up new villages. By far, this has been the only instance of India carrying out an airstrike on its own civilian territory. AFSPA was later amended in 1972, defining Armed Forces as “the military and the Air Force of the Union so operating”.

Section 3, AFSPAIt delineates a “disturbed area”. It grants the power to declare an area disturbed to the Central Government and the Governor of the State. However, it does not describe the circumstances under which the authority would be warranted in making such a declaration. Instead, the AFSPA only requires that such authority 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.” Thus the declaration depends on the satisfaction of the Government official, the declaration is therefore not subject to judicial review let alone being challenged by the public. So in practice, it is only the government’s understanding which classifies an area as disturbed.

 

The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case (AIR 1983 Del 513). The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. And since the declaration depends on the satisfaction of the Government official, it is not subject to judicial review.

The Disturbed Areas (Special Courts) Act, 1976, however, provides a clear definition. Under the Disturbed Areas (Special Courts) Act of 1976, an area may be declared 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.” The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA. So we see that the delineation of a disturbed area under AFSPA does not comply with what we have under the disturbed areas (Special courts) Act of 1976.

 Section 4 defines the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer, only a jawan (private) does not have these powers.

PROVISIONS EXPLANATION REMARKS
Section 4(a), AFSPA The army can shoot to kill the commission or suspicion of the commission of the following offenses: acting in contravention of any law or order for the time being in force in the disturbed area, prohibiting the assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. To justify the invocation of this provision, the officer need only be “of the opinion that it is necessary to do so for the maintenance of public order” and only give “such due warning as he may consider necessary”. Immense and unfettered power to the armed forces has given rise to a plethora of Acts of horror, like the thousands of murders, rapes, custodial deaths, disappearances, tortures, combing operations and genocide. An endless number of such incidents bear chilling testimony to these hard realities of everyday life in Kashmir and the Northeast.

Section 4(b), AFSPA, The army can destroy property if it is an arms dump, a fortified position or shelter from where armed attacks are made or are suspected of being made, if the structure is used as a training camp or as a hide-out by armed gangs or absconders.The sad part regarding the property or the arms, ammunition etc., seized during the course of search conducted, is that there is no accountability of such property or arms being handed over to officer in charge of the nearest police station. There are refutations of circumstances under which the arrested persons die as contradictory reports always come from the family members and the security forces. Large sums of money and huge cache of arms go missing unreported if the claims of the insurgent groups are to be counted. Use of such unaccounted arms in extrajudicial killings cannot be ruled out as many family members report about arrest made from the premises of their houses and security forces claim encounter death somewhere else wearing combat fatigue and recovery of such and such arms.

Section 4(c) The army can arrest anyone without a warrant, anyone who has committed, is suspected of having committed or of being about to commit, a cognisable offense and use any amount of force “necessary to effect the arrest”.The AFSPA Violates Indian Criminal Procedure Code (CrPC) of Use of Minimum Force. The Criminal Procedure Code lays out the procedures that police is to follow for carrying out arrests and searches. CrPC also advocates use of minimum force for dispersing an unlawful assembly. No such provisions exist in any sections of Armed Forces Special Powers Act. Misrepresentation and misuse of the provisions of the Act rather than the Act itself is our major concern.

Section 4(d):Under this section, the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises.

The underlying risk of misuse has not been negated by an adequate safeguard.Section 5, AFSPA makes it mandatory for the Army to hand a person arrested under the Act to the nearest police station with the least possible delay. Handing over the arrested person to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest magistrate within 24 hours of such arrest sounds good but is rarely implemented. Most of the time the arrested persons face summary or extrajudicial executions in the hands of the State or Central or combined armed forces personnel.

Section 6, AFSPA, It lays down that prosecution; suit or other legal proceedings can be instituted against a person acting under the Act only after getting previous sanctions of the central government.This section violates the Right of Equality before Law (Article 14 of the Constitution ensures equality before law). People residing in areas declared as disturbed have been denied this right because of Section 6 of AFSPA which prevent the citizens from filing a suit against any person of armed forces without prior sanction of Central Government. Let us take an example: Thangjam Manoram case in 2004. Over 100 Manipuri women protested naked in front of Kangla Fort Assam Rifle camp. Thereafter, the Central Government of India granted permission to prosecute the army personnel involved in raping her and killed brutally. There is not even a single case where prosecution granted against any armed forces personnel under AFSPA without public outcry.

 

If the AFSPA is repealed, Asian Centre for Human Rights makes the following recommendations:

First, the state governments must have the sole right to declare certain areas or the whole of State as “disturbed” subject to the approval by the State legislative assembly. Therefore, Section 3 of the AFSPA should be amended.

Second, the Supreme Court in its judgement stated that the AFSPA “does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power”. If that is followed in practice, the armed forces must operate under civil power. Therefore, provisions giving special powers to the armed forces pertaining for search and seizure under section 4(d), arrest under section 4(c), destroying hideouts of the “absconders wanted for any offence” under section 4(b) and the power to use force including “the right to fire upon or otherwise use force, even to the causing of death” under section 4(a) are inconsistent with the intent and be amended to comply with normal Criminal Procedure Code or Indian Penal Code. In fact, Section 5 of the AFSPA provides that “any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest”. If such a procedure could be laid down with regard to the arrest, there is no reason as to why similar procedure cannot laid down with respect to other provisions. The problem is such a procedure is seldom respected by the armed forces. Therefore, there is a need to incorporate necessary clauses both to ensure that the procedures are followed and punishment be awarded for the failure to respect the procedures laid down in the Act.

Third, Section 6 of the AFSPA has been overtaken section 197 of the Criminal Procedure Code. Since its amendment in 1991, permission from the concerned State or Central Government for prosecution is mandatory. If the Centre were to give permission under section 197, there is no reason as to why the same will not be accorded under AFSPA.

The basic question we face is why have the North- Eastern states become the Centre for insurgent activities? Why have the seven sisters become a breeding ground for seditionists? There is no time for alibi hunting! The fault lies with all of us:

  • The people residing in the main landmass of the nation have been treating residents from north eastern as foreigners since the beginning of time (most of us can’t tell an Assamese from a Meghalayee!). And certainly, they feel they don’t belong here. What needs to change is the mindset of people. Implementation of laws rather than legislation need to be strengthened.
  • Failure on our part to understand the rich, exuberant culture of their states. Instead of alienating the seven sisters, efforts must be made to encourage and develop the tourism industry in these states. This might be one of the few steps to develop a cordial link with the states.
  • Insufficient representation of the North-Eastern states in the Central Government.
  • Inadequate connectivity of the North-Eastern landmass to the nation’s mainland. The challenging terrain of the North-East has posed as a natural drawback. However, efforts can still be made to improve the connectivity.
  • Inability on our part to recognise the true potential of the North-Eastern states. What has been observed is that there immense potential in fields of music, sports, culture-tourism, eco-tourism in these states that if harnessed (and not exploited!) properly could be used for the betterment of the people in North-Eastern states.

We need to address the root cause first than jumping to amend the Act .However, we see that legal immunity and extraordinary power in the hands of any agency and in the hands of the ‘ARMED’ forces particularly are detrimental to human rights and civil liberties. Enforcement of AFSPA has made this conspicuous. Nonetheless, the other important fact that cannot be ignored is related to the internal security of the nation, this issue becomes further complex when insurgents and terrorists are sponsored by foreign countries. We cannot keep mum and let innocent citizens be denuded off their fundamental rights. Neither can we revoke the AFSPA completely. We have to take pragmatic stand on the situation. In order to deal with the situation effectively, the basic step should be to define the key phrases like ‘disturbed area’, ‘such due warning as he may consider necessary’ and ‘of the opinion’ more clearly. Crucial phrases (which are subject to personal interpretation) must not be left to the arbitrary subjective opinions of the state and central governments. It should be an objective criterion which is judicially reviewable. Armed forces should not be allowed to carry out any procedure on suspicion alone. Their operations should have an objective premise and they should be judicially reviewable. The use of the military in aid of the civil power is an option that no government, howsoever liberal, will discard especially since it has constitutional sanction. And this is not feasible too, because repealing AFSPA and withdrawing the army from such areas is sure to create safe havens and breeding grounds for militants. A deceptively simple law on paper, AFSPA needs to be needs to be given a serious thought and should be amended if not repealed altogether.

* The Author is Intern at CPPR

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