The Armed Forces Special Powers Act (AFSPA) was passed by the Indian government in 1958 to effectively tackle the rising problem of insurgency in the Naga districts of Assam. AFSPA, in the Indian context, is not simply a legal framework providing impunity for the armed forces deployed in the North-East; the act enforces a state of exception that allows democracy to be indefinitely suspended. It allows the state to put the people under round the clock surveillance. The act discriminates by subjecting people in the insurgency hit areas to de facto martial law.[i] The aim of this essay is to argue that AFSPA fails not only to meet the standards of legality set by Indian constitution but also those upheld by the international community. In the course of this, the essay will try to explain how the act exactly fails and provide tentative suggestions as to what can be done.
Provisions of AFSPA:
Most people are today familiar with the historical context in which AFSPA first came about. The issue surrounding Irom Sharmila has brought the topic in considerable media limelight. It is more important to understand what AFSPA entails in practice.
AFSPA is an act to enable certain special powers to be conferred upon its members of the armed forces in ‘disturbed areas’ in the state of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Jammu and Kashmir and Tripura. It is important to note that ‘armed forces’ comprise only of the army, navy and the air force and no other force raised by the central government such as the CRPF, BSF, CISF etc. Under section 3 of AFSPA, a disturbed area is a temporary classification of any particular geographical location which at the time is considered unstable. The officers, JCO’s and the NCO’s of the armed forces are entitled to:
- Arrest, without warrant, any person who has committed a palpable offence or against whom a reasonable suspicion that he has committed or is about to commit a palpable offence and may use force to effect the arrest.
- Enter and search without warrant, any premises to make an arrest, to check any property reasonably suspected to aid terrorists also search for concealed arms and explosives which are believed to be unlawfully kept in such premises, on discovery confiscating them and use force if the need be.
- Destroy any arms dump or any fortified position from which armed attacks are made or are likely to be made, or any structure used as a training camp for armed volunteers or utilized as a hide out.
- Fire upon or use force even to the causing of death, against any person who is acting in contravention of any law after giving a due warning.[ii]
The section 6 of AFSPA states that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the central government.
Human Rights violations committed by the security forces:
The security forces have constantly been under fire for their repeated violations of human rights. The AFSPA is a direct assault on the most basic human rights and a clear violation of articles 14, 19, 21 and 22. In the name of national security the government passes laws which violates the supreme right of its citizens- the right to life. The AFSPA violates not only national law but also international law, Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights (ICCPR), The Convention Against Torture to name a few. There are numerous reports about the security forces committing arbitrary or unlawful killing- including extrajudicial killings, sexual harassment, reported looting, destruction of property, etc. in the conflict areas. The culture of AFSPA has not only militarized social relations between the communities but also created a system of lawlessness where the constitution is unable to guarantee any protection to the people whose human rights are violated under AFSPA. This act grants legal protection to the defaulters and liberates their conscience by justifying the dreadful human rights violations as the collateral damage while serving the nation.
According to the Ministry of Home Affairs 2008-2009 report, citizens filed 1185 reports of human rights violations country wide against the army and the central paramilitary personnel. During the period 2006-2010, almost 1650 civilians have been killed in the encounters between the insurgents and the security forces. These numbers regarding the civilian casualties clearly indicate the disregard the security forces have for the life of the locals.
In 2004, a woman by the name of T. Manorama was raped and murdered by a group of paramilitary soldiers who suspected her of being a part of a banned insurgent group. This incident sparked massive unrest in the North East. Following the uprising, the government appointed Jeevan Reddy commission in 2004 in order to review the legitimacy of AFSPA. The purpose was to review the provisions of the act and advice the government regarding potential amendments of certain provisions. Another concern of the commission was the question of whether to completely replace the act with an act that will be more sympathetic towards the civilians. The committee recommended the government to repel the AFSPA. The act has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.[iii]
Neglected Economic Concerns:
The government has to soon come up with a win-win solution to combat the insurgency problem. This is because the state of Manipur plays a crucial role in promoting connectivity through Myanmar due to its strong ethnic, economic and socio-cultural ties with the neighboring country. The insurrectionists create turbulences around the officially designated border trade point (Moreh) in Manipur using their perennial strategy- violence. Although the casualty rate is not that astonishing, the regular exchange of fire is severely affecting the trade and investment in the state. Myanmar traders are reluctant to engage in cross border trade with India owing to lack of infrastructure and security concerns. Without any long term solution to the insurgency problem, the much needed state revenue is jeopardized. To compound the problem, constant blockades by the National Socialist Council of Nagaland further ebb the economic prospects of the state. On an average, insurgents carry out 129 blockades and strikes every year on NH-102 and NH-37. If the current situation continues to persist in this region, there remains no rationale for continuing this otherwise problematic act. The same detrimental effects have been continued since the implementation of AFSPA; confronted by this state of affairs the domestic strategy of the Centre is really called into question.
Moving Beyond AFSPA:
Montesquieu claims, “The natural effect of commerce is to bring peace”. The dependency theory[iv] emphasizes that commerce can render manners gentle in the state.[v] As it is clear from aforementioned point, the government needs to take some drastic steps to develop infrastructure, create a peaceful order among citizens as they have come to believe the government has turned a deaf ear to their woes. This would also involve making serious attempts to fortify trade relations with India’s South East Asian neighbors by creating a Seven Sisters Corridor (SSC) which will connect all the major cities and border points of the state and provide a much improved road and tech connectivity.[vi] By doing this, it will create job opportunities for thousands of locals. Due to this, people instead of resorting to agitation will move toward newly developed sectors for employment. Moreover, such policies will be welcomed by the locals in the afflicted areas as they would provide solace to their concerns. To achieve all this, the contribution of the security forces is paramount. However, while AFSPA persists, locals will remain under the notion of forces being aggressors rather than protectors.
Instead of continuing AFSPA, the government of India should consider amending the Unlawful Activities Prevention (UAP) Act, specifically for the disturbed areas. This act was passed in 1967 and already exists for fighting terrorists/insurgents etc. Furthermore, it extends to all of the country, including the disturbed areas. What can be done is that the government can allow the security forces to have some discretion in operational matters but without keeping their activities unchecked. Security forces must be held accountable for every action if required. Passing the UAP Act will definitely reduce the feeling of discrimination and alienation among the people of the North East and Kashmir. Instead of trying to solve the insurgency related issues militarily, the government should direct its energies in tackling the root cause of the problem and winning the hearts and minds of the locals, thus creating a stable democratic environment. Constant militarization of the North East for over 50 years has evidently not generated any considerable positive results; if anything, AFSPA has caused more problem than it was expected to solve. There were only seven active armed opposition groups in 1958, whereas as of today that number is well above 70. The numbers clearly demonstrates that AFSPA has failed to control insurgency in the North East.
For decades, the locals of the North East have been victims of sponsored violence. This act has created more problems than it has solved. The people residing in disturbed areas are gradually losing faith in the constitution and the viability of democracy to solve their problems. For inhabitants who live under this act, such a reality is not only a matter of concern but also redefines their position as citizens, to the extent that they question the very foundations of effective governance, the language of rights and the unsatisfied appeals to justice. It is high time that the government realizes that order cannot be maintained by imposing brutal laws; nothing justifies the suppression and the terrorization of Indian citizens by its own government.[vii] There is a desperate need to put an end to this practice of violence, alienation and severe injustice.
[i] Duncan McDuie-Ra, ‘Fifty-year disturbance: the armed forces Special Powers Act and exceptionalism in a South Asian Periphery’, (Sept, 2009)
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