AFSPA Act 1958: An Analysis
1.INTRODUCTION
1.1 HISTORICAL BACKGROUND
At the beginning of the century, the inhabitants of
the Naga Hills, which extend across the Indo-Burmese border, came together
under the single banner of NNC[1], aspiring for
a common homeland and self-governance. The Naga leaders were adamantly against
Indian rule over their people once the British pulled out of the region. Under
the Hydari Agreement signed between NNC and British administration, Nagaland was
granted protected status for ten years, after which theNagas would decide
whether they should stay in the Union or not. However, shortly after the
British withdrew, independent India proclaimed the Naga Territory as part and
parcel of the new Republic.
The NNC proclaimed Nagaland's independence. In
retaliation, Indian authorities arrested the Naga leaders. An armed struggle
ensued and there were large casualties on either side. The Armed Forces Special
Powers Act is the product of this tension. Similarly in the state of Jammu and
Kashmir, the flawed elections of 1987,in which the leaders of MUF[2]had to face a
fabricated defeat at the hands of mainstream political parties, resulted in
violent means of struggle for secession from India. The massive militant uprising
coupled with large scale infiltration of cross border militants turned the
situation volatile. In order to suppress the movement, the central government introduced
AFSPA in 1990.[i]
Now we will proceed towards the essence of AFSPA.
We will deal with the meaning of AFSPA.
1.2 MEANING OF AFSPA
The Armed Forces Special Powers Act (AFSPA) is an
act empowering armed forces to deal effectively in disturbed areas. Any area
which is declared ‘’disturbed’’ under disturbed areas act enables armed forces
to resort to the provisions of AFSPA. ‘The choice of declaring any area as
‘disturbed’ vests both with state and central government. After an area comes
under the ambit of AFSPA, any commissioned officer, warrant officer,
non-commissioned officer or another person of equivalent rank can use force for
a variety of reasons while still being immune to the prosecution. The act was
passed on 11 September 1958 by the parliament of India to provide special legal
security to the armed forces carrying out operations in the troubled areas of
Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland, Tripura[3].However, in
1990 the act was extended to the state of Jammu and Kashmir to confront the
rising insurgency in the area. In Manipur, despite opposition from the Central
government, state government withdrew the Act in some parts in August, 2004.’[1]
After the implementation of AFSPA, there was a
continuous debate whether it is needed by the Indian Army or not. Although
it was withdrew in Manipur, but some people were in favour of the act. Now we
will consider with the necessity of AFSPA for the armed forces.
1.3 NEED OF AFSPA FOR THE ARMED FORCES
There is no gainsaying the fact that political
necessity drives deployment of the security forces for internal security
duties. The forces are aware that they cannot afford to fail when called upon
to safeguard the country’s integrity. Hence, they require the minimum
legislation that is essential to ensure efficient utilization of combat
capability. This includes safeguards from legal harassment and empowerment of
its officers to decide on employment of the minimum force that they consider
essential.
The absence of such a legal statue would adversely
effect the organizational flexibility of the security of state. This would
render the security forces incapable of fulfilling there role. In short, it
would imply that a soldier cannot fire upon a terrorist, cant take necessary
action to destroy a hideout and cant arrest anyone he suspects to be nations
threat.
Consequentially, the security forces have a right
to seek legal provisions to undertake operations for three fundamental reasons.
One, a soldier unlike a policeman is not empowered by the law to use force.
Next, while operating in far flung areas, it is simply not possible to
requisition the support of magistrates every now and then. Lastly, their
employment is an instrument of `last resort` when all other options have been
exhausted.
As we have already seen the usefulness of AFSPA for
the Indian soldiers, we can now easily relate to the consequences of what will
happen if AFSPA is diluted.
1.4 WHAT IF AFSPA IS DILUTED?
There has been a constant demand from all civil
organisations that some of the provisions of AFSPA must be diluted to make it
more humane and accountable act. But the army believes the annulment of act
could prove disastrous at the central and the state government levels because
of following reasons:
‘Firstly, it would dilute the capacity of an
important instrument of the state – the armed forces - to tackle the security
challenges faced by the country.
Secondly, it would motivate the insurgent
leadership, field cadres and their over ground supporters to engage in reckless
damage to public life and property. It may well result in a security situation
which slides beyond redemption, necessitating major political compromise.
Thirdly, the annulment of the law and the resultant
lack of security cover would adversely affect the governance and development
capacities in the insurgency affected states, and the eventual redress of local
grievances’ [2].
These three major outcome of if AFSPA is diluted
were quite foreseeable so government of India decided to make a commission to
look into the issue. This commission was known as JEEVAN REDDY
COMMISSION.
1.5 JEEVAN REDDY COMMISSION AND ITS
RECOMMENDATIONS.
In 2004, in the wake of intense agitation that was
launched by several civil society groups following the death of Manoram Devi,
while in the custody of the Assam Rifles and the indefinite fast undertaken by
IromChanuSharmila, the central government accordingly set up a five-member
committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of
the Supreme Court.The 147-page report recommends, "The Armed
Forces (Special Powers) Act, 1958, should be repealed." During
the course of its work, the committee members met several individuals,
organisations, parties, institutions and NGOs, which resulted in the report
stating that "the Act, for whatever reason, has become a symbol of
oppression, an object of hate and an instrument of discrimination and high
handedness." The report clearly stated that "It is highly desirable
and advisable to repeal the Act altogether, without of course, losing sight of
the overwhelming desire of an overwhelming majority of the [North East] region
that the Army should remain (though the Act should go)."But activists say
the Reddy panel despite its recommendation for the 'repeal of the Act' has
nothing substantial for the people. The report recommends the incorporation of
AFSPA in the Unlawful Activities (Prevention) Act, 1967, which will be operable
all over India .The panel gave its report in June 2005 but the Manmohan Singh
government has neither officially accepted nor rejected its findings. Reasons
for this are many. With rapid rise in terrorism throughout the country in the
past couple of months coupled with terrorist violence in many places,
especially in the Northeast, the government of India cannot take a hasty
decision on the removal of this Act, as it could spell several dangers to the
strategic security and territorial integrity of the country [3].
After all the debates over the issue of AFSPA
and its use in society we can analyse its position and role of importance
in society.
1.6 IS AFSPA A BLOT ON THE DEMOCRATIC FABRIC OF
INDIA?
'India today stands at very crucial point to decide
whether it will embrace fully the spirit of accountability and transparency to
progress towards a functional democracy or slide towards a rigid militaristic
state with impunity as a banner, negating its pious stance of upholding the
Gandhian philosophy of non-violence and Ahimsa. Human rights are
universal and the Indian Constitution enshrined the fundamental rights and
directive principles to nurture the core values of humane aspiration on which
the Indian independence was fought for against the external colonizers. However
even after more than 60 years of its liberation from the clutches of colonial
imperialist powers, India has failed to germinate
the basic fundamental human rights such as the `right to life’ for all its
citizens as guaranteed under Article 21 of its Constitution, creating a serious
democratic deficit especially in its governance in the Northeast and other
indigenous/ tribal peoples areas and minority nationalities/communities under
its dominion. India as a member of UN Human Rights Council must make its position
clear by demonstrating its sincere commitment to the various international
obligations it has been bound with due to its commitment to uphold human rights
principles, as ratified previously to bolster its democratic image. However,
impunity, rape, wanton violence, environmental destruction, cultural genocide,
developmental aggression, forceful resource exploitation, systematic planned
transfer of populations to drown or marginalize indigenous peoples to alienate
their land and territories, distortion of history and disempowerment through
alien legal system, forced labour, torture, criminalizing indigenous
institutions, militarization, racism, stigmatization, socio-economic
deprivation, etc will be perpetuated again if the relationship between Indian
state(s) and the indigenous peoples or submerged minority nationalities, are
shaped by distrust and fear instead of trust, well being and hope. Shall we
allow the future to be dominated by violent paradigm such as the continuing use
of AFSPA? It is time India gives space for Democracy and its cherished
values to reemerge instead of suppressing the genuine democratic voice of “We
the people” which continues to remain excluded under the tyrannous rule. India
must today prove that it seriously subscribe to the democratic ideals and
upholds universal human rights principles and practices. `India shining’ will
emerge when India authentically makes its bold move to fully embrace democracy
and dismantle the violent structures on which it has relied to govern the ungovernable
zones and to promote abnormal dispensation as normal credence of democracy.
Indian state needs to be more accommodative and understanding in this new
century where its prestige as a major international player does not succumb to
its own dubious play of trampling over the rights of its citizens.The political
problems must be dealt politically without bringing army in direct
confrontation with the civilian population. Unless india realises the urge to
solve the issues of north eastern states an the much vexed Kashmir problem,
these types of violations will continue and the much controversial Indian army
will have to face the criticism.’[ii]
Now as we have discussed the literal meaning of
AFSPA, we are hence in full condition to understand the legal provisions of
this act and analyse its legal importance in the society.
2. LEGAL ANALYSIS
In this topic we will be aiming to provide local,
National and International Human Rights defenders and decision makers with a
comprehensive analysis of the Act’s compatibility with India’s domestic and
International human rights obligations.
The human rights obligations analysed in the present
report concern, first of all, those flowing from the Constitution of India, and
international law sources, with particular emphasis on the International
Covenant on Civil and Political Rights (hereinafter “the Covenant” or “ICCPR”).
The Covenant, to which India acceded in 1979, recognises a number of
fundamental human rights, including the right to life, the right not to be
tortured or ill-treated, the right to liberty and security, fair-trial rights,
the right to privacy, and the right to freedom of assembly[4].
AFSPA goes against both Indian and International
Law Standards. This was illustrated only when India presented its second
periodic report to the United Nations Human Rights Committee in 1991. When the
Attorney General of India was questioned by the members of UNHRC (United
Nations Human Rights Council) on how AFSPA could not be Deemed Constitutional
under the Indian Law and how it could be justified in light of article 4 of the
ICCPR. He said that the secession in the Northeast had to be responded on a “war
footing” relying on the only argument that the AFSPA is a necessary measure to
prevent the secession of the North-eastern states and argued that the Indian
Constitution in article 355, made it the duty of the central government to
protect the states from internal disturbance and that there is no duty under
international law to allow secession.
This reasoning instituted in the northeast due to
the AFSPA gave more reasons to the north-eastern people to want to withdraw
from the state of India[5].
2.1 In accordance to INDIAN LAW
On 27 November 1997 the Supreme Court of India
rendered its judgment in Naga People’s Movement for Human Rights v. Union of
India[6].
In this case the validity of the Act was challenged by means of a writ petition
before the Supreme Court of India.
The petitioner alleged that the Act had violated
constitutional provisions that govern the procedure for issuing proclamations
of emergency, and upset the balance between the military and civilian and the
union and state authorities. The court rejected those contentions. It found
that the parliament had been competent to enact the Act and ruled that its
various sections were compatible with the pertinent provisions of the Indian
constitution. In particular, the court held that the application of the Act
should not be equated with the proclamation of a state of emergency, which led
to it finding that the constitutional provisions governing such proclamations
had not been breached. The court further emphasised that the military forces
had been deployed in the disturbed areas to assist the civilian authorities. As
these authorities continued to function even after the military’s deployment,
the court held that the constitutional balance between the competencies of the
military and the civilian authorities had not been upset. Equally, the court found
no violation of the constitutional balance of competencies of the union and
state authorities. What the court did not address was the compatibility of the
Act with India’s obligations under the ICCPR or other international
obligations. This is notwithstanding the general rule of Indian constitutional
law, confirmed by the Supreme Court in another case decided in 1997, that the
courts must have regard to international conventions and norms when
interpreting domestic statutes[7].
Many cases challenging the constituency of the
AFSPA are still pending before the Supreme Court. The only way to repeal this
act is if the Supreme Court declares AFSPA unconstitutional but surprisingly
the Delhi high court found the AFSPA conditional hence allowing to take effect.
The judiciary should repeal the AFSPA as it is unconditional and end army
rule in the northeast[8].
2.1.1 The Right to life
Article 21 of the Indian Constitution states that
“No person shall be deprived of his life or her personal liberty except
according to procedure established by law[9]."
Section 4(a) of the AFSPA which grants armed personnel to shoot and kill. This
is clearly violating article 21 of our Constitution.
2.1.2 Protection against arrest and detention
Article 22 of our Constitution states:
1.
“No
person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult, and to be defended by, a legal practitioner of his choice.
2.
Every
person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the
court of the magistrate and no such person shall be detained in custody beyond
the said period without the authority of a magistrate."[10]
These two sections of article 22 of the IC can be
used to safeguard the people arrested under the AFSPA.
2.1.3 Military’s immunity/lack of remedies
Members of the armed forces in the state of India
are protected from arrest for anything done within the line of official duty by
section 45 of the CrPc (The Indian Criminal Procedure Code)[11]. Section 6 of the AFSPA provides then
with absolute immunity for all atrocities committed under the AFSPA[12]. The armed forces personnel conduct
themselves as being above the Law. When they are tried in army courts, the
people are not informed about the proceedings. The results of many trials such
as in the case where BSF and armed forces in Jammu and Kashmir were punished
for the abuses was not published stating that is would endanger the lives of
the soldiers by the NHRC.
2.1.4 The Army Act
The 1950 act was a revision of the 1911 Indian army
act. The revision of this act was to bridge the gap between the army and civil
Laws as far as possible in the matter of punishments of offences. Chapter
5 of the army act grants armed personnel privileges including immunity
from attachments and arrest for debt. Which gives the armed personnel
even more freedom and makes them to be irresponsible for their actions[13].
2.2 In accordance to International Law:
The AFSPA is not justified under any relevant
International human rights and humanitarian law standards. The AFSPA also
violates the Universal Declaration of Human Rights (the "UDHR"), the
International Covenant on Civil and Political Rights (the "ICCPR"),
the Convention Against Torture, the UN Code of Conduct for Law Enforcement
Officials, the UN Body of Principles for Protection of All Persons Under any
form of Detention, and the UN Principles on Effective Prevention and
Investigation of Extra- legal and summary executions[14].
2.2.1 International covenant on civil and political
rights(ICCPR):
India signed the ICCPR in the year 1978. In time of
public emergency, the ICCPR foresees that some rights may have to be
suspended.
In an operation Bluebird, the militants also forced
the villagers of Oinam to work them and provided them with no compensation.
They were forced to carry the army’s rations and heavy artilleries.
Thisviolates article 8 (3) of the ICCPR which prohibits forced labour[15].
2.2.2 International customary law:
the Un code of conduct for law enforcement
officials, the UN Body of principles for protection of all persons under any
form of detention and the UN principles on effective prevention and
Investigation of Extra-legal and summary executions all form part of
international customary law because they were passed by UN General Assembly
resolutions. They lend further strength to the conclusion that the AFSPA
violates basic human rights standards.[16]
2.2.3 International humanitarian law:
The four Geneva Conventions of 1949 along with the
two optional protocols, constitute the body of international humanitarian law.
These provisions are suited to human rights protection in times of armed
conflict. Under these conventions the International Committee of the Red Cross
(ICRC) is given access to all international conflicts. In non-international
armed conflicts, the ICRC can only offer its services[17].
The ICRC's mandate in the context of
non-international armed struggle is based on Protocol II to the Geneva
Conventions. However, India has not signed either protocol to the Geneva
Conventions. Nevertheless, the ICRC can offer its services in such a conflict
based on Article 3, paragraph 2, common to the four Geneva Conventions of 1949
("an impartial humanitarian body, such as the International Committee of
the Red Cross, may offer its services to the Parties to the conflict").
When the ICRC offers its services in such a situation, a state does not have to
accept them, or consider it an interference in its internal affairs. However,
"in situations of internal disturbance, the rules of international
humanitarian law can only be invoked by analogy[18]."
3. AFSPA IN NORTH-EAST INDIA
The Armed Forces (Special Powers) Act of 1958
(AFSPA) is one of the more cruel legislations that the Indian Parliament has
passed in its 45 years of Parliamentary history. Under this Act, all security
forces are given unrestricted and unaccounted power to carry out their
operations, once an area is declared disturbed. Even a non-commissioned officer
is granted the right to shoot to kill based on mere suspicion that it is
necessary to do so in order to "maintain the public order". The AFSPA
gives the armed forces wide powers to shoot, arrest and search, all in the name
of "aiding civil power." It was first applied to the North Eastern
states of Assam and Manipur and was amended in 1972 to extend to all the seven
states in the north- eastern region of India. The enforcement of the AFSPA has
resulted in innumerable incidents of arbitrary detention, torture, rape, and
looting by security personnel. This legislation is sought to be justified by
the Government of India, on the plea that it is required to
stop the North East states from seceding from the Indian Union. There is a
strong movement for self-determination which precedes the formation of the
Indian Union.
3.1 AFSPA in Manipur:
In Manipur, the Act has been a heart concern about
human right violation in the region. Its continued application has lead to
numerous protests, notably the longstanding hunger strike by Ms. IromChanuSharmila.
The “AFSP Act” focuses on Manipur since this is one of the states of north-
eastern India with the longest history of military abusing its power under the
Act and with a vibrant civil society indefatigably denouncing those violations.
The judgement against the controversial Armed
Forces Special Act, the Guwahati High Court on Aug 31st this
year has authorised the state of Manipur to act on the report of the one man
commission in the alleged rape and killing of Manorama Devi by the Armed Force
in 2004. Sixed years after Manipur erupted with the defining image of anger
against killing and resistance to the armed force Act this judgement should be
crucial in understanding this act is meant to aid civil power and not to
substitute it.
The AFSP Act grants extra ordinary powers to the
military, including the power to detain persons, used of lethal force[19] and enter and search premises without warrant. The
Act grants the following power to[20] military officers, including any commissioned
office and other of equivalent in the military forces.
The provision of the Act have been reportedly
continued to be routinely applied in practice. The overall practical effect of
the Act has been the Defacto militarisation of Manipur. Even the proponents of
the Act have acknowledged the general administration in Manipur is wholly
dependent on the security forces[21].
Action taken pursuant to the Act reportedly led to
260 killings in 2009 alone.[22] The military
also widely used its power to detain persons. As held in the number of
judgement, those arrested pursuant to the Act remained in the military custody without
being brought before judge for a prolonged period of time.[23] Several cases
court found that person who has been arrested by military under the Act
disappeared subsequently,[24] which
suggest that they have become victims of enforced disappearances.[25]
3.2 AFSPA in Nagaland
The inhabitants of the Naga Hills, which extended
across the Indo-Burmese border, came together under the single banner of Naga
National Council (NNC), aspiring for common homeland and self-governance. In
1929, the NNC petition the Simon Commission, the Nagas Leaders were against the
Indian rule over the people since India got independence. Mahatma Gandhi
publicly announced that the Nagas have right to be independent as he believe in
non-violence.
Under the Hydari Agreement signed between NNC and
British Administration, Nagaland was granted protection status for ten years,
after which Nagas would decide whether they should stay Union or not. However
shortly after the British withdrew, independent India proclaimed the Naga
territory as part of India Republic.
The NNC proclaimed Nagaland’s independence. In
relation, Indian authorities arrested the Nagas Leaders. An armed struggled
ensued and there were large causalities on the other side. The Armed Force
Special Power Act is the product of this tension.
In 1975, some Nagas leaders held talk with the
Goverment of India which result in what is known as the Shillong Accord. The
Nagas Leaders who did not agree with the Shillong Accord formed the National
Socialist Council of Nagaland (NSCN) and continued to fight for what they call
“naga sovereignty.”
3.3 AFSPA in Mizoram
In the Lushai hills in early sixties a famine broke
out .A relief team cried out for help from the Goverment of India. The relief
team organised themselves into Mizo National Front (MNF) and called for armed
struggled “to liberate Mizoram from Colonialism.”In Feb. 1996 armed militant
group captured the town of Aizawl and took possession on all Goverment Offices.
It took about one week to recapture the town. The Army responded viciously with
air raids. This is the only place where the Indian Security Force bombed its
owned civilians.
The Armed Forces compelled people to leave their
homes and dumped them on the road sides to set up new villages, so that the
armed forces could be able to control them better. In 1986, the Mizo Accord was
signed between the MNF and the Goverment of India. The MNF agreed to work with
the Indian Constitution and to renounce violence.
The Government of India primary interested in the
North-East was strategic and so was it response to problems. A series of
repressive laws were passed by the Goverment of India in order to deal with the
uprising.
However, the AFSP Act is essentially an emergency
legislation and therefore, by definition, its, temporal scope of application
should be limited and clearly defined. The prolonged application of emergency
legislation sustains, reinforces or even creates the exceptional state that may
justify emergencies, and has therefore become the cause rather than the effect
of the prevailing situation. Unsurprisingly, the Act, that is the most visible
legal manifestation of this undeclared state of emergency, has been repeatedly
condemned by various UN treaty bodies.
On 27 November 1997 the Supreme Court of India rendered its judgment in Naga
People’s Movement for Human Rights v. Union of India.50 In this case the
validity of the Act was challenged by means of a writ petition before the
Supreme Court of India. The petitioner alleged that the Act had violated constitutional
provisions that govern the procedure for issuing proclamations of emergency,
and upset the balance between the military and civilian and the Union and State
authorities. The Court rejected those contentions. It found that the Parliament
had been competent to enact the Act and ruled that its various sections were
compatible with the pertinent provisions of the Indian Constitution. In
particular, the Court held that the application of the Act should not be
equated with the proclamation of a state of emergency, which led to it finding
that the constitutional provisions governing such proclamations had not been
breached. The Court further emphasized that the military forces had been
deployed in the disturbed areas to assist the civilian authorities. As these
authorities continued to function even after the military deployment, the Court
held that the constitutional balance between the competencies of the military
and the civilian authorities had not been upset. Equally, the Court found no
violation of the constitutional balance of competencies of the Union and State
authorities. What the Court did not address was the compatibility of the Act
with India’s obligations under the ICCPR or other international obligations.
This is notwithstanding the general rule of Indian constitutional law,
confirmed by the Supreme Court in another case decided in 1997[26],
that the courts must have regard to international conventions and norms when
interpreting domestic statutes.
The position of the Supreme Court of India
carries immense persuasive weight while interpreting the constitutional vires of
the Act. One could argue that the main points of discussion concerning the
constitutionality of the Act in Naga People's Movement for Human Rights revolved
around the procedures followed during the enactment and the implication of the
Act in the centre-state relations.
The AFSP Act's central provisions, including the
blanket authorizations to use lethal force, arrest and enter and search without
any additional warrant or pre-condition, coupled with the all embracing
immunity provision that indiscriminately covers all military officers
effectively providing them with carte blanche to act as they see
fit, are incompatible with India's international obligations under the ICCPR,
namely its articles 2 (3), 6, 7, 9, 17, and 21. This finding is borne out by
concerns over the Act's application in Manipur and other States of
north-eastern India, which has been characterized by a number of credible
allegations of extrajudicial killings, torture, ill-treatment, enforced
disappearances and arbitrary detention in a climate of complete impunity. There
are no reported cases of any military officers involved having been held
accountable.
India has not availed itself of the right to derogate from the ICCPR pursuant
to article4 with the effect that the ICCPR is fully applicable in Manipur.
However, the AFSP Act is essentially an emergency legislation and therefore, by
definition, its temporal scope of application should be limited and clearly
defined. The prolonged application of emergency legislation sustains,
reinforces or even creates the exceptional state that may justify emergencies,
and has therefore become the cause rather than the effect of the prevailing
situation. Unsurprisingly, the Act, that is the most visible legal
manifestation of this undeclared state of emergency, has been repeatedly
condemned by various UN treaty bodies.[27]
The extraordinary legislative measures which were originally conceived of as
being of an exceptional and temporary nature but were subsequently left to
apply for an unlimited period of time not only undermine internationally
recognised human rights But also erode the mutual confidence between the
authorities and society and may contribute to the delegitimation of the state as
a whole.[28]
4. Effect and Repercussions of AFSPA in the states
of J&K and Manipur
In the Rann of Kutch, the sighting of a military jonga brings kids on the road,
waving, laughing, and chasing the vehicle. Others salute the jeep as it passes.
The same is likely to happen in Jammu. But in Kashmir and most parts of the
Northeast, young boys and girls take aim with imaginary guns, shooting as a
convoy passes it is the same army, the same soldiers, but the stark difference
in their role creates the duality. Along the western border, the Indian Army
stands guard against an external enemy. But in Kashmir and the Northeast, the
army, performing a policing role, has fallen from grace .[29]
India is popularly considered as a nation which gives due importance to the
rights and liberties of its citizens. It has absorbed the ideals of democracy
in its truest sense. The Government is indeed “by the people, to the people and
for the people”. However, it is difficult to imagine that in a country like ours,
exists a law which makes a mockery of the basic human rights. There have been
nationwide debates on the validity of the Armed Forces (Special Powers) Act,
1958, popularly known as AFSPA. First introduced in the states of
Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura,
the act was later extended to Jammu and Kashmir in July 1990. It is a draconian
law which gives unbridled powers to the armed forces. Any commissioned officer,
warrant officer, non-commissioned officer or any other person of equivalent
rank in the armed forces is granted the right to shoot to kill based on mere
suspicion that it is necessary to do so in order to “maintain the public order”
in a “disturbed area” [30].
Now first of all we must understand the meaning of the term ‘Disturbed Area’.
"Disturbed Area" means an area which is in such a disturbed and
dangerous condition that the use of armed forces in aid of the civil power is
necessary to prevent –
(a) activities involving terrorist acts directed
towards overawing the Government as by law established or striking terror in
the people or any section of the people or alienating any section of the people
or adversely affecting the harmony amongst different sections of the people;
(b) activities directed towards disclaiming,
questioning or disrupting the sovereignty and territorial integrity of India or
bringing about cession of a part of the territory of India or secession of a
part of the territory of India from the Union or causing insult to the Indian
National Flag, the Indian National Anthem and the Constitution of India .[31]
Areas declared ‘disturbed’ under the AFSPA over the past 60 years vary
significantly according to their conflict history, ethnic constituency and
levels of militancy. However, all these areas share a common experience of
widespread human rights abuses during the imposition of the AFSPA. The AFSPA
has also had the opposite effect to that intended by the Indian Government: in
each state where the AFSPA has been implemented and soldiers have been
deployed, the armed forces have become a symbol of oppression and an object of
hate .[32]
4.1 Situation in Manipur
India introduced AFSPA in 1958 to put down separatist movements in certain
parts of the country. The law was first enforced in Manipur and later enforced
in other insurgency-ridden north-eastern states. As stated earlier the Armed
Forces Special Powers Act (AFSPA) gives the security forces the powers of
search and seizure. It also protects soldiers who may kill a civilian by
mistake or in unavoidable circumstances during an operation. There have been
widespread protests regarding repeal and revocation of this Act for the past 63
years but of no avail. But one which has stood different among all and has
gained world recognition has been the fast undertaken by IromSharmilaChanu in
protest of this Act.
The people of Manipur has done everything humanely conceivable to register
their protest against the AFSPA -- naked protest by mothers, self immolation by
student leader, mass demonstrations, petition to the Supreme Court, complaints
to the United Nations are to name a few. Similar is the case with other
citizens in rest of the Northeastern states. Civil society groups including the
media, political parties, jurists, expert groups appointed by the government
and the United Nations have constantly called upon the government to withdraw
AFSPA from Manipur and have held that the withdrawal of AFSPA is an essential
requirement to end the culture of violence in Manipur. However the government
has failed to pay heed to these considered opinions .[33]
Ms Sharmila's fast began on November 3, 2000, a day
after security personnel shot down 10 people at a bus stand just outside
Imphal. Within days, she was detained by the police. Since then, she has been
nasally force-fed a liquid concoction of nutrients in a hospital, which serves
as her prison. After every year in detention, she is released for a day and
rearrested for attempting to commit suicide — because she refuses to call off
her fast until the government repeals the legislation. Hers may be the longest
hunger strike in recorded history but it has generated little or no interest
outside Manipur. In recent days, the attention Ms Sharmila has received in the
wake of Anna Hazare's anti-corruption hunger strike has served to highlight her
personal life. She comes out as a resolute but lonely woman, caught between her
iconic importance to the struggle against AFSPA and her own only-too-human
desire to lead a normal life .[34]
Sharmila's unique protest follows Mahatma Gandhi's principle of non-violence.
It has withstood the test of time, and exemplifies the triumph of human spirit
over the unbridled power of the state machinery. During the past 10 years, the
state as well as the central government has tried everything at their disposal
to force Sharmila to stop the fast. When these attempts failed, the government
placed Sharmila in detention, keeping her in house arrest or confined to a
small hospital room in Imphal, on the excuse that an attempt to commit suicide
is a crime in the Indian Penal Code, 1860. At the moment Sharmila is detained
in a room in the security ward of the Jawaharlal Nehru Hospital in Imphal. The
state government has continuously denied her permission to freely meet visitors
. [35]
Another infamous happening which rocked the state of Manipur related to AFSPA
was the death of a 32 year old lady called ThanjamManorama who was a member of
Manipur’s banned People Liberation Army (PLA). She was allegedly killed after
being taken into custody of the paramilitary Assam Rifles. Attempts to identify
and punish those responsible for her death were stalled by the army, which has
received protection under the immunity provisions of AFSPA .[36]
Five days later in a state seething with over four decades of secessionist
discontent, an extraordinary protest brought Manipur’s outrage to the nation’s
attention — on July 15, 2004, around 30 women, aged between 45 and 73, walked
naked through Imphal to the Assam Rifles bastion at Kangla Fort. “Indian Army,
rape us too,” they screamed at the astounded guards at the gates. “We are all
Manorama’s mothers.” These were ordinary women — few had had much political
involvement before Manorama’s murder; most led sparse lives held together by
hard work; all had husbands, children, some even grandchildren. But that July
day, nothing mattered to these women but fury. Women across Manipur’s deep
ethnic divisions — Kukis, Meiteis, Nagas — were moved to solidarity with the
protestors in the weeks of unrest that followed across the state .[37]
But is
IromSharmila being held hostage by the anti-AFSPA campaign? For their part,
other leaders of the movement, who have long been depending on one woman's
hunger strike to keep it going, are dismayed at the attention to her private
life and suspect it might be a plot to break her and the campaign. If Ms
Sharmila wishes to opt out of her chosen form of protest and return to normal
life, others in the movement should allow her to do so with the dignity and
solidarity she deserves. That will in no way be construed as a victory for the
AFSPA. Ms Sharmila's peerless sacrifice, and the sacrifices of other
Manipuri’s, in particular the women who resorted to a naked protest to draw
attention to the brutality of the security forces, are a big enough blot on the
Indian state — one that can be washed away only by getting rid of the AFSPA .[38]
4.2 Situation in J&K
AFSPA, after its enactment in 1958 in north-eastern states was later extended
to the state of Jammu and Kashmir in 1990.
As already mentioned under AFSPA, security forces are given unrestricted
powers, once an area is declared disturbed, to carry out their operations;
shoot, arrest and search in the name of ‘aiding civil power’ and ‘maintain
civil order’. These powers also provide unaccountability, since the security
personnel are protected from prosecution and legal proceedings for their
actions until the Central Government sanctions its approval .[39]
This legal immunity provided to these security personnel has had an opposite
effect on the common population of the state. The present Kashmir crisis is not
between militants and the forces, but has escalated to the present stage
because of unarmed civilians being hit by state-controlled bullets. The state
police have also been engaged in these moves, which has led the death toll in
the Valley cross 100 last summers. One has no objection to AFSPA, granted that
it is adhered to strictly, is not abused and is not used by those not linked
with army to target civilians needlessly. Here, it may be pointed out that the
army and police fall under two different departments. So it needs to be
scrutinized carefully, whether some communication error has also led the
J&K police assume that they also have the authority under AFSPA to shoot as
and when they sense a risk. Are they also guaranteed legal immunity? Besides,
one may draw attention to it be clearly laid out that the army officers are
granted legal immunity if and when they take action in keeping with the AFSPA
dictates. In other words, they are not above legal immunity if they abuse
and/or violate AFSPA by taking action not permitted by it .[40]
The atrocities towards the common people, particularly against women by the
army personnel started soon after the AFSPA Act of 1990. I would like to quote
an instance of the early 90’s. In 1991, a remote village called KunanPashpora
in Kashmir witnessed an all night terror raid on women, where some 30 women of
the village were raped. KunanPashpora has come to symbolize sexual violence
against Kashmiri women and therefore caught the attention of National and
International media. A two member women’s team including Amiya Rao, a senior
and well respected civil rights activist, visited Kashmir and demanded an
enquiry into the rapes at KunanPashpora. The Press Council of India sent an
enquiry team, headed by a respected male journalist B.G Verghese who had a good
record of supporting civil rights. Alas, when the report was made public he
exonerated the army, arguing that the allegations were fabricated and motivated
in order to ‘defame’ the army. The nation and the army became synonymous- the
version of the army was the version of the press and the sexual violence
against women counted for little .[41]
Going further, one has no objection to AFSPA being strictly adhered to during
encounters with militants, any person or group being engaged in any action that
is considered as contravention of law and/or dangerous to the security of the
region. At this point, one is forced to recall the instance of TufailMattoo ,
the young student who was killed on June 11. He was killed by a bullet from
police. What was his fault? Now, would it be fair to assume that police
responsible for his death should be guaranteed legal immunity? Even if his
death had occurred from an army officer’s fire, from what angle would the army
officer have been allowed legal immunity for this action? Tufail was not
engaged in any activity that may be considered as violation of the national
law. Neither any army officer nor police officer can be given legal immunity in
case of Tufail’s death strictly in keeping with dictates laid out by AFSPA.
Tufail is not the only Kashmiri civilian who has fallen victim to
state-controlled bullets in recent weeks for no fault of his and for reasons
that do not suggest violation of the national law. Should this be allowed to
continue? Against this backdrop, Kashmiris’ anger seems fairly justified.
Scores of deaths have taken place when mourners were taking dead bodies for
funeral services on different occasions. The pent-up anger and agitation was
displayed by these mourners, at times, by shouting slogans. But give a thought,
those were not staged funeral ceremonies. Think of the grievance of people participating
in the same, reflecting on what were they heading for and angry at an innocent
youth being targeted needlessly. Should they have stayed back and not performed
the funeral services? Risking bullets and their lives, they were only playing a
socially responsible role. Perhaps, it is essential for the concerned
authorities to clarify whether such funeral services are viewed as violation of
law and can army/police officers shoot at the mourners in keeping with AFSPA .[42]
The presence of conflict enterprise in Kashmir is an old story. All the actors
have developed a deep vested interest in the continuation of the ugly conflict.
While everybody involved wants to have his pound of flesh, the common man
suffers endlessly. The diplomatic cables of American diplomats leaked by
Wikileaks have fully exposed the antics of all those involved in the messy
situation of Kashmir; hardly anybody has been left unscathed. Some security
officials seek repeated postings in the valley, what is there so lucrative in
conflict-ridden Kashmir? WikiLeaks solves the puzzle. “Security officers bribe
their way into Kashmir assignments that give access to lucrative civil affairs
and logistics contracts.” Earlier, the forces were involved in organizing
‘Bharat Darshan’ for students and supplying commuters and furniture to the
schools. From this year onwards, the army has started organizing cricket
tournaments in a big way. No harm if through Sadbhavana operations it can win
the hearts and minds of the local people. However, wining hearts and minds
amidst continued human rights violations is impossible. Sadbhavana operations
in theory might be a commendable thought; in practice it has proved to be a
goldmine of corruption. Nowadays, the army is busy in ‘AwamiMulaqat’. Senior
commanders, like politicians, address public gatherings with the civilian
bureaucracy in tow. This not only impinges upon the role of the civilian government,
through these shortcuts everlasting peace can never prevail. What prevails is
an eerie calm, described as ‘armed peace’ in Kashmir .[43]
4.3 Importance of AFSPA
AFSPA, however draconian it may sound has been of great help in certain
aspects. We should not forget that it is because of the efforts of army and
armed forces that terrorism and insurgency related activities in Jammu and Kashmir
and North Eastern states has been reduced considerably. It has helped the army
to eliminate those dreaded terrorists who used to operate within the masses
through the help of their trusted ‘informers’.
If we take the Kashmir situation Indian Army has been guarding the LoC and
preventing any alteration of its alignment either way. It seems thousands of
its casualties seem to have been forgotten. Or being overlooked or disregarded?
If Chief Minister of J&K Mr. Omar Abdullah thinks that there is such a
level of improvement in the Valley’s security that AFSPA and DAA(Disturbed
Areas Act) can be lifted from some parts, he must remember that it has been
possible mainly because of the Army being there effectively. If it was the best
tourist season in 25 years and an incident-free annual Amarnath pilgrimage
after a long time, it was due to role of the army. If the separatists’
oft-parroted demand of removing AFSPA and ‘demilitarizing’ J&K is ever
implemented, there should be no doubt that Pak Army/ISI/Jihadis will try to
complete what was attempted in 1947. While MHA’s assessment till 2010 is quite
obvious, the latest inputs covering 2011 so far are: there are 42 terrorist
training camps in Pakistan-occupied Kashmir (PoK), of which 34 are active and 8
are dormant; about 2,500 terrorists are being trained in the latest commando
techniques and use of hi-tech weapons and equipment; there are approximately 50
launch pads, with 750-800 terrorists poised for infiltration, for which dumping
of arms, ammunition and equipment is in progress; there have been 35 attempts
of infiltration across the LoC involving approximately 224 terrorists, out of
which 54 succeeded, 32 were killed and one-Nissar Ahmed was apprehended
recently; 19 Pakistani terrorists tried to enter India from other borders,
mainly Nepal; in operations by Army and security forces so far this year, 116
terrorists were killed, 40 were apprehended and eight surrendered; in 66
terrorist attacks in the Valley this year, 30 innocent civilians and 27 security
personnel were killed .[44]
Here I would
like to quote one of the incidents once witnessed by an
officer highlighting the grey areas in which they have to
work.
"A foreign terrorist, an explosives expert,
crossed into India with the help of a local shepherd. Food, women and supplies
were brought to his hideout by an overground worker. The worker took him to his
target spot, showed the routes and informed about the local security set-up.
The worker, shepherd and the women were all aware of the terrorist's presence.
Indirectly or directly, they are all involved in an illegal act. After the
blast, we got a tip that on the night of the blast a group of 10 men threw a
party in a village close to the blast site. We cordoned the house and arrested
the men. Nine of them turned out to be innocent, but the 10th spilled the beans
on the hideout. We work based on local intelligence in a time-sensitive
environment. We need special powers to operate effectively .[45]
We must realize that the army and paramilitary forces today are already
overstretched and overworked as a result of being constantly engaged in
anti-militancy operations. For months and years, they live away from the
comfort of home in bunkers or makeshift tenements under constant fear of being
sniped at or blown up by landmines or grenades. Upon this, the Government has
given a long rope to the so called human rights leaders who find army a
convenient tool to forward their perverted activism as a consequence of which
many a brilliant army officer are subjected to senseless interrogations. The
mushrooming of private T V channels has further worsened the situation with
media turning insensitive to an army person’s hurt pride and instead preferring
to sensationalize the “grief” or “loss” of a slain militant .[46]
Every Act which the parliament or any other legislative body enacts has its pros
and cons and same goes for AFSPA also. For most of the population this Act is
and will always remain a draconian one while for few particularly those not
under the ambit of this Act it has helped in removing terrorism and insurgency
from the war- torn states. I think that instead of triggering debates and
deliberations over whether AFSPA should be withdrawn from Jammu and Kashmir and
other North Eastern States, we must look deep and see whether this Act has been
strictly adhered to by the army personnel and their officers or not. Strict
action must be taken by the state agencies regarding any violation or abuse of
AFSPA Enquiries should be conducted against any of the personnel who indulges
in unjustified ‘excesses’ or violates the Act. I also suggest that some of the
harsh provisions enshrined in this Act must be amended. These suggestions if
implemented and recognized can be of great help for both the army and the
masses in the longer run.
5. Present Scenario of AFSPA
AFSPA which is in force since a long time now, is
on its peak in present scenario in regards to controversies. As it can not be
ignored that this act brought peace in many areas and was very helpful for a
long time in all these disturbed areas of North-East as well as Jammu and
Kashmir and maybe it will be of same help in future but right now the
conditions are a lot in bad condition and as the public living there and
suffering can only tell how their life has gone miserable by this act we can
not ignore those facts as well. Public is totally against this act as it is
interfering in their lives and not only that there are many comments of AFSPA
being in action because of political reasons and some are saying that politic
parties want threat and fear in minds of people so that they can rule for
longer period and for that military is the biggest help to them. In North-East
India as well as Jammu and Kashmir where AFSPA are mainly in action and
regulations there are a number of deaths, encounters, suicides and other harms
to the public against which the public is revolting and that we can study in
the following research.
5.1 Public Crisis and Response:
The public in the areas where AFSPA is in action are criticizing it and are
totally against the regulation. The main reason for such a criticism is their
sufferings. If seen from inside the area one can easily see how badly the
civilians are being treated and not only this but the worse thing is that they
are in such a miserable condition not because of some terrorist activities or
foreign invasion but by the army of their own country. And another thing is
that their complaints and cries are not being heard over and no one is really
caring about that and the reasons for such a dealing are political as well as
authoritical as government itself do not want to end the powers given to the
military in these areas as the military is saying that ending this power will
halt their try to keep piece in the area.
The army once again made it clear on Thursday November 3, 2011 that removal of
the Armed Forces Special Powers Act (AFSPA) “will make it difficult for
security forces to operate ” and expressed fear that “the Act’s absence may
allow inimical elements to exploit the situation” Kashmir. “The fact is that
partial revocation (of the AFSPA) from the areas may be seen as a genuine thing
because there seems to be peace here. But peace is very fragile,” said General
Officer Commanding in Chief for Northern Command Lt Gen K T Parnaik on the
sidelines of a function held at Teetwal, Kupwara, 200 kms from Srinagar.[47]
The crisis in Kashmir has yet again turned the
spotlight on the Armed Forces Special Powers Act (AFSPA). The act has elicited
much public criticism in the states where it has been invoked and employed.[48]
The public outcry against the AFSPA is fuelled by
instances where the armed forces have misused the powers granted to them:
custodial deaths and fake encounter killings, for instance. There are good
reasons to believe that in the prevailing situation the act does provide the
requisite latitude for such transgressions to occur.[49]
Seeing all this outcry by the public and in response to this in June 2010
the SHRC (State Human Rights Commission) asked the State Government to take up
the matter with the Central Government, stating that some officers and troopers
with vested interests were misusing AFSPA (the Armed Forces Special Powers Act)
for rewards and promotions. Chairperson of SHRC, Justice (Retd) Bashir-ud-Din
remarked “In the garb of AFSPA, instances of killing civilians in fake encounters
and dubbing them as militants have come to fore in the past also. This is a
dangerous pattern which can have serious consequences besides intensifying
alienation among the common people against the political dispensation”[50]
Now some activists are trying to work and make the conditions better although
trying it to experiment first by removing the act but not confirming its total
removal. Chief Minister Omar Abdullah on October 21,2011 announced lifting of
AFSPA on experimental basis from areas where peace has returned in the state.
However, Abdullah, in an interview to a New Delhi-based news channel on
Wednesday night, clarified that “it was not a decision but intent which was
announced”. “The Act is not something that cannot be reimposed in an area. The
way AFSPA is being rolled back can be again introduced if the experiment
fails,” said Omar.[51]
Public has suffered a lot more than they benefitted of this act till now
although the future might be some changed as protests and movements are being
run. But in public also the major section that suffered the most was women and
children, mainly female children. The sufferings of women as well as their
protests and the movements by them are discussed as follows.
5.2 Women Sufferings and Reactions:
AFSPA an act implemented for the welfare of public, for the safety of citizens
of our country and for the protection of our women and young generation turned
itself got twisted and changed itself completely with time, interference,
political reasons, privileges, evil of human mind and most importantly because
of the tremendous power given to military of which wrong use was taken up. Here
also not forgetting the real protection of women this act provided in troubled
times we can not also go blind to the negative face of this power given to
military. Women have faced troubles and not only this many lost their lives by
encounters and many committed suicides after being brutally tortured and raped
by these military men.
In response to all these tortures the women of
these areas when interviewed by the media revealed this publically. ‘The act
was supposed to deal with the “disturbed areas”. It was supposed to combat
‘militancy’…’terrorism’. However, it’s AFSPA which is, in reality, the sole
cause of terrorism. The AFSPA has led to extra-judicial killings, illegal
detentions, fake encounters, rapes and torture of the civilian population.
According to official records, since 1980, more than 25,000 civilians have been
killed. The condition of women, as always, has been worse. “I was half conscious
most of the time but whenever I regained consciousness, the commandoes were
molesting me…but, I am grateful to them for giving me the chance to narrate my
agony by sparing my life at least”, revealed one amongst thousands of victims.
In 2004, there was a nude protest by Manipuri women. They held placards reading
“Indian army raped us”’.[52]
In response to all these sufferings women made some
organizations and protested against it. Their protests brought some fruit as
About 100 women from different organizations formed a human chain at Ambari
here to express solidarity with Sharmila. "Our message is very clear and
resolute. We want AFPSA to be repealed. Today, Sharmila has completed 11 years
of her fast in protest against AFPSA. We back Sharmila's struggle," said
SumitraHazarika, the secretary of SadouAsomPragatiNariSanstha secretary, one of
the three women organisations which formed a human chain here. The other social
bodies were NirjatanBirudhiEkyaManch and NariMuktiSangramSamiti.[53]
Similar protests have been taking place since a long time now. The government
had reacted to these protests and IromSharmila’s heroic struggle by ignoring
these pleas and by suppressing the “Iron Lady”. The Government had been
forcefully feeding IromSharmila through nasogastric incubation to keep her alive.
She was also re-arrested and released every year. The Government argued that
AFSPA is a necessary evil in the “disturbed areas”. People wondered what is
disturbing the state more… militancy or the army rule. The Manipur militancy
revolves largely around development. ‘The aaminsaan doesn’t want a different
state, a different administrative unit. They do not understand these
things…they only want bread, land and peace’[54].
The HRW report mentions how tribal women in Tripura
are molested and raped by military personnel. Tripura, which is rarely in the
news, has witnessed gross violations of human rights due to the AFSPA. Anthony
Debbarma, human rights activist from Tripura says, “On February 16, 1997, 37
police station jurisdiction areas inhabited by the indigenous tribal population
were declared ‘disturbed’. The army personnel occupied schools and children
were denied a proper ambience for education. The tribal women feel threatened
by the army camps in the heart of the villages.”[55]
All these sufferings because of the military who is given extra power and to
the people of their own country to which they took the oath to serve. The
question arises why not repeal the act when such disasters are taking place?
Why is the government doing nothing for betterment of life of the people in
these areas? Why such a delay in reacting? The first answer that comes to the
mind of a critical citizen is that politics is interfering in all these things.
Political parties do not want to repeal this act or to react in any way because
of many political reasons and more over somehow to protect and save their power
even at the cost of life of the people. There is a lot of political motive in
keeping this act in force which can be seen as further.
5.3 Politics, Military and AFSPA
On their part, government has often defended the act in that “AFSPA is needed
‘to counter terrorism and maintain law and order’” but in reality the law has
not been itself sufficiently provided with checks and balances or any mechanism
to ensure justice is delivered for human rights violations by the armed forces.
In such a scenario the civil populations in AFSPA areas are often the ones at
the receiving end with no hopes of justice. Even the implementation of the said
act under same circumstances in different areas has not been viewed as justly
uniform. In 2010 at least 120 civilians were killed in Kashmir unrest (majority
of them kids and youngsters) when security forces fired on them, often blaming
them for stone pelting: however the refrain shown by the same security forces
in Jammu in 2008 during the Amarnath unrest was different, where angry
protestors resorted to blockade of Kashmir valley and large scale violence.
Even after the protests in Jammu had turned extremely violent resulting in the
killing of two policemen, security forces did not resort to any firing on
civilians. In Kashmir the actions of security forces is seen as a mindset of
‘us controlling them by any and all means’.[56]
In response to the recommendations by the Jeevan
Reddy Commission which was set up in 2004 after the Manorama protests, Pranab
Mukherjee, then defence minister said that it is impossible to repeal the Act
as the military cannot function without these powers. And thus we all choose to
shut our eyes to the atrocities continuing in the North-East, in a part which
does not belong to the Mainland India![57]
There were only four insurgent groups in Manipur,
today there are 25 on the government’s own watch-list. This Act has practically
given the military unprecedented powers to do their will as it prohibits any
legal or judicial proceeding against any army personnel without the previous
sanction of the Central Government. It has snatched away from the people the
right to protest, the right to legal redress against atrocities or right of any
lawful democratic activity. Ordinary innocent persons can be easily labeled as
‘terrorists’ and ‘suspects’ and taken into custody.[58]
It has effectively ensured that most of the
excesses committed under the influence of AFSPA go unpunished and in most of
the cases even after the crime may have been proven by investigating agencies,
central government sanction for prosecution has not been granted.[59]
An example of how AFSPA shields rights violators is the 25th March 2000
Pathribal (in South Kashmir) incident where officials of 7 Rashtriya Rifles
killed 5 civilians in a fake encounter whom they had earlier labeled as five
"foreign militants". Protests by civilians against the fake encounter
resulted in many more civilian deaths during police firing on these protestors
and subsequently the state government was forced to hand over the case to CBI.
The CBI conclusively proved by DNA matching that the five killed had been
innocent civilians who had been picked up from various places and killed in a
fake encounter for passing them as "foreign militants". Till date the
prosecution of such cases has been withheld by the Government of India, hence
justice remains elusive for the victims.[60]
This is how the military is acting and doing what
so ever they want to do and the government is protecting them as the armymen
give statements as they will not be able to act properly if the act is repealed
and this fears the government as any terrorist activities by foreigners and
there will be chaos in the whole country. It has now gone into a circle of
complications from which to get out is not that easy.
5.4 AFSPA no end in sight in near future
As the present condition of AFSPA is in a very bad
condition full of controversies and the movements being run against this act
and the demand of a huge number of people to repeal the act because it has made
their lives miserable and in other sense alienated them as they can not feel it
their own country as no country’s own army brutally kill the innocent or rape
the women of the country it is very difficult to say about the future of this
act but right now the end to this evil is no where to be seen mainly because of
poltical complications and other safety requirements the government need to
fulfill before repealing this act all of a sudden. The debates taking place in
the whole country regarding the demands for AFSPA considerations are showing no
fruit yet and people living in these north-eastern areas as well as Jammu and
Kashmir are still in dark and in no hope of getting their future in light as
the government by them does not seems to be their own now. Although there is
pressure being put on by UNO also for the repeal of the act and central
government is also concerned about this matter but still the implications and
complications of removing such an important act, based on the historical help
for the country, for the security of areas most prone to terrorist activities
and moreover nearer to the boarders and also the same act that helped us a lot
in earlier times to protect our country it does not seems to be quite possible
for atleast another some long years which may worsen the conditions of the
people over there and may alienate more of them which is not healthy for a
country, growing tremendously and gaining reputation in world on a large scale,
like India. All we need now is to see the welfare of the people of our country
right now and no political reasons and demand the repeal of this act. But in
the end the future is not in our hands and we can only hope for the best in
future and there is only hope right now as no surety or guarantee is being
provided by the government for the future of this act and the people.
[2] pao.net/epSubPageExtractor.asp?src=manipur.History_of_Manipur.AFSPA-A_Historical_Perspective.AFSPA-A_Historical_Perspective_1
[4] Concluding
observations of the Human Rights Committee: India, UN Doc. CCPR/C/79/Add. 81, 8
April 1997, at para. 18
[5],http://www.gomanipur.com/your-story/item/369-armed-forces-special-powers-act-1958
5 November, 2011.
[13]http://www.vijbooks.com/uploads/images/products/pdf/795532090L1Mil%20Law_Sample%20For%20Web.pdf, 5 November, 2011.
5 November, 2011.
[21] A Kamboj Manipuri and Armed Forces (Special
Power) Act 1958, in 28 strategic analysis (2004),at 618.
Bacha Bora V. State of Assam, (1991) 2GLR 49.
[26] Vishaka et al. v. State of Rajasthan., 1997 AIR 3011, Naga People's Movement case was decided by the same
court in November, both in 1997
[28] (Djema’a al SeyedSuleymane Ramadhan v. Egypt,
Working Group on Arbitrary Detention, Opinion No. 18/2008 of 8 September 2008,
UN Doc. A/HRC/13/30/Add.1 (2 March 2010), at Para. 21)
[29] Langer ,Avalok.
“To repeal or amend. What should we do with this Act?”Tehelka. 8(2001):39.
Print
[30] Kumar Aayush,
and GoyalPreeti. “ AFSPA: A Mockery of Human Rights” .Web. http://
www.mightylaws.in : Retrieved on:- 26 Oct 2011
[31] National
Legislative Bodies. “Armed Forces(Jammu and Kashmir) Special Powers Act
1990”.Web.http://www.unhcr.org/refworld/docid/3ae6b52a14.html. Retrieved on:-
27 Oct 2011
[33] Asian Legal
Resource Centre(ALRC). “India: AFSPA promotes armed insurgency in Manipur.”
Web. http:// www.alrc.net. Retrieved on:- 27 Oct 2011
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