AFSPA in Northeast and J&K
•Kakali Das
How would you feel if a relative of yours is eliminated on suspicion, and the perpetrator is not put on trial? When an elephant died in Kerala, calls for justice erupted on Twitter, and it broke many hearts. Noida’s news channels left no stone unturned in covering politically motivated clash after Bengal election. However, when 14 civilians died in Nagaland by army operation, why were we so silent? People, here, say that Kashmir and Northeast are theirs but do they also care about the rights of people living here? Anchors are, in fact, more interested in the daily activities of Taimur Ali Khan, than covering the news on the life and death of the civilians.
The news that 14 civilians died in the Mon district of Nagaland was a mere headline for us! We read and we forgot! But it was absolutely tragic for the families of the victims. Can they ever forget the open fire on suspicion that they were insurgents?
After the botched up operation of the security forces in Nagaland, demand to repeal AFSPA in northeast gained momentum. This is not the first time such demand has been made. But this time Nagaland assembly passed formal resolution demanding repeal of AFSPA. Similar demand made in Kashmir as well. Ex-CM Mehbooba Mufti, and other leaders have sought removal of AFSPA from J&K.
Why Is AFSPA problematic an act so far?
There is a problem in the definition of the first section itself. The first section of the Armed Forces Special Powers Act (AFSPA), 1958 confers special powers upon members of armed force in disturbed areas. Firstly, these aren’t only ‘special powers’, but also unlimited or unbridled powers. The section 4 reads that Armed forces can open fire after giving warming if considered necessary to maintain public order. It, in fact, allows to fire or use force even to the causing of death against any person, innocent or criminal in suspicion. Not only that, they can enter and search without warrant any premises and may use force as may be necessary.
Generally, trial and justice are governed by evidence, but this law is based on reasonable suspicion. Section 6 of this Act is even bitter than Section 4. According to Section 6, no prosecution, suit or legal proceedings shall be instituted, except with sanction of central government. (The sanction which never arrives).
Current Situation In North-East
The jurisdiction of AFSPA is in the entire north-east, but it is implemented in the disturbed areas of north-east – in Nagaland, Assam, Manipur and Arunachal Pradesh. In fact, AFSPA in Arunachal Pradesh was restricted in 2018, and now imposed in a few tensed areas like Arunachal-Assam border. In 2015, Tripura withdrew AFSPA and in 2018 revoked in Meghalaya. On 26th December, 2021, the Narendra Modi government set up a panel to look into withdrawal of AFSPA in Nagaland. That would, indeed, be a big masterstroke if it happens (miraculously though).
MHA data shows that insurgency related incidents dipped by 80% in north-east last year. The few remaining insurgents can be effortlessly handled by police anyway.
AFSPA is a very powerful last resort to tackle insurgency. But, by naming one area disturbed for decades, is government hiding its own shortcomings? Failure of Congress’ northeast policy has caused erosion of Congress party in northeast. Let’s see what BJP does now.
Current Situation In Kashmir
Another version of AFSPA is active in Jammu and Kashmir. The sections are similar, named Armed Forces (J&K) Special Powers Act (AFSPA) enacted in 1919. In 2019, after the abrogation of article 370 in J&K, people were confident that the Centre would be able to stop militancy, and work without any interruption since then. But AFSPA strongly held its grasp there.
Until 2018, Mehbooba Mufti state government in J&K had sent 50 cases for prosecution sanction against AFSPA, but Centre denied permission in all cases. Since repeal of 370, no case involving the army for sanction of prosecution has been sent. Basically, all is well in J&K, isn’t it? (pun intended)
Now, should AFSPSA be done away with? If not, its misuse must be stopped at least. This law was never made to sustain for such long years; it was only made to deal with emergency situations. AFSPA was rightly used in Punjab, 1980s to control insurgents. After insurgency ended, it was withdrawn from Punjab.
Objections Against AFSPA
The objection against AFSPA is that it is a draconian law that grants unlimited powers to armed forces. In November 2000, Assam Rifles terminated 10 civilians in near Tulihal Airport in Imphal, Manipur. It was named as “Malom Massacre”. After this tragedy, Irom Sharmila called for an indefinite hunger strike demanding to repeal AFSPA in northeast. This hunger strike lasted for 16 years, ended in 2016.
Manipur has seen many more unfortunate extra judicial killings related to AFSPA. The worst being, in 2004, there was a huge backlash when Manorama Devi’s bullet-shredded body was recovered from a village in the East district in Imphal. The allegation was that a few soldiers of the Assam Rifles raped and killed her by firing bullets on her.
On 15th July, 2004, thirty Manipur women protested against the army by being naked, and a few days later, 5 Manipuri students attempted to self-immolate to protest AFSPA in front of the CM’s office. As a result, that year itself, AFSPA was withdrawn from parts of Manipur.
In July 2020, after the infamous Shopian encounter in Kashmir, the army admitted that its troops exceeded powers during the encounter and killed 3 civilians in it. The families of the victims, however, alleged that it was staged.
Like northeast, J&K has also demanded to repeal AFSPA after such incidents. In 2005, Justice Sanjiv Reddy committee sent report to central government recommending complete repeal of AFSPA, a symbol of oppression. In 2007, Second Administrative Reforms Commission supported the report. But Home Ministry has rejected suggestions to repeal AFSPA. Moreover, in 2016, the Supreme Court of India ordered judicial probe on 1528 extra judicial killings (encounters) between 2000-2012.
International committee has also criticised AFSPA. In 1991, United Nations Human Rights Committee asked, “How could it be justified under International Agreement on Civil and Political Rights?” In 2009, UN Commissioner of Human Rights termed AFSPA “outdated colonial-era law” that breaches contemporary international human rights standards. In 2012, UN asked India to revoke the act saying it had no place in democracy.
So, why does AFSPA continue to prevail? Rational Behind AFSPA
Constitution gives power to central government to protect states from internal disturbances. Supporters argue that if armed forces don’t have control in disturbed areas then it would lower their morale.
In 1958, during parliamentary discussion, the then Home Minister, G.B. Pant said that the law was needed as it was not feasible “over such a vast area to depute civil magistrates to accompany the armed forces whenever there may be trouble, because it happens unexpectedly”.
The then Prime Minister, Nehru too defended the law saying, “No infirm government can function anywhere. Where there is violence it has to be dealt with by government, whatever the reason for it may be; because otherwise you drift; the country drifts into.”
Current defence minister Rajnath Singh told the parliament in 2019: 334 soldiers died in areas where AFSPA is in force in between the year 2016 and 2019. And the same PM Modi said that removing AFSPA in Kashmir is like sending soldiers to the gallows. There were talks to repeal AFSPA during the UPA government; but it couldn’t be materialised. Now, Modi government has a chance to repeal AFSPA in the northeast at least.
Not only AFSPA, there are many other laws that smells similar to the Rowlatt Act – MISA, POTA, UAPA, SEDITION, DEFAMATION etc. Anyone can be jailed under UAPA too without evidence or bail. Civilians might die and not get justice under AFSPA.
In a democratic country, such laws should only be used in emergency situations, and not for decades. Today, the governments are hiding their shortcomings by using these laws. Apart from a few disturbed areas, our CRPC, police force, law and order machinery are quite capable of handling the situations.
The question then is, will government repeal AFSPA or keep it in the coming years?