AFSPA-Armed forces special power act

/ Guest Column / Friday, 20 November 2020 19:02

By- Jayanta Sharangthem

It gives armed forces a special power to maintain public order in disturb areas…. Firstly after independence …..” It was first applied to the North Eastern states.
What is disturbed areas…???????
Disturbed areas as indicated in the bill: the govt either by state or centre considers those areas to be disturbed by reasons of differences or disputed between members of different religious, racial, languages, groups, castes or communities
HISTORY OF AFSPA
1. The AFSPA - like many other controversial laws - has a colonial origin. The AFSPA first came as an ordinance introduced by British govt , the then Viceroy Linlithgow shaken by the massive scale of violence across the country to suppress the Quit India Movement launched by Mahatma Gandhi in 1942. Because after its launch, the movement became leaderless and turned violent at many places across the country. Leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel and others had been put behind the bars
2. But after Independence, these Ordinance were decided to continue and enacted as law by the central government under PM Jawaharlal Nehru to deal with the internal security situation which emerged due to the Partition of India
Ordinances are
1. The Bengal Disturb Areas (Special Powers of Armed Forces) Ordinance;
2. The Assam Disturb Areas (Special Powers of Armed Forces) Ordinance;
3. The East Bengal Disturb Areas (Special Powers of Armed Forces) Ordinance;
4. The United provinces Disturb Areas (Special Powers of Armed Forces) Ordinavce
These were repeal in 1957 but a year later 1958 due to Naga insurgency forced the central govt to bring it back…as Armed Forces Special Powers (Assam and Manipur) Act, 1958 and gradually it further extended in NE later one after another
3. Now, Armed Forces Special Powers (Assam and Manipur) Act, 1958 was enacted in Nagaland because the Naga National Council boycott the first general election of 1952 which later extended to a boycott of government schools and officials because Nagas demanded Autonomous and Sovereignty of nagaland from India as mentioned in Simon Commsision. In order to deal with this situation, the government imposed the Assam Maintenance of Public Order Act in the Naga Hills in 1953 and intensified police action against the rebels.But the situation worsened, so the govt deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act,1955,. But the Assam Rifles and the state police could not control the Naga rebellion instead the rebel Naga Nationalist Council (NNC) formed a parallel government. So the central govt imposed The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 singed by the then President Dr. Rajendra Prasad on 22 May 1958 to suppress the uprising and violent caused due to insurgency in the NE states ….like tribals insurgency,Assam militant uprising,Separate state demand,freedom movements or so called separatist movements, Naga insurgency under phizo, ….
Provisions/powers in the Act given to Army,Paramilary and Assam rifles/state CDOs
1. Armed forces may shoot to kill or destroy on mere suspicious under Section 4 of the AFSPA Act
2. Prohibit public gathering of five or more people
3. May arrest any individual without warrant on reasonable suspicious
4. Can enter and search any home/premises without warrant
5. No prosecution or other legal proceeding shall be instituted against armed personals acting under this Act.
Who can imposed this draconian Act in the disturb areas
1. By governor
(After which centre send army for police aid …
2. By Central govt …..
Because central govt can declare a particular area as disturbed under 1972 Amendment .Over and above, the Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance
Where and when did apply
1. In disturbed areas where state govt got the power to declare any part or whole that seems against constitution or out of govt control
2. Assam disturbed areas which later become AFSPA was extended to Nagaland to suppress the Naga uprising arm group in 1955
3. Manipur ……
4. Punjab and Chandigarh in 1983 in connection with khalisthan movt.but withdrawn in 1997
5. Similarly the act was imposed in Jammu and Kashmir in 1990 to suppress the separatist
6. Tripura 1997 but withdrawn 2015 under manik Sarkar
Still visible existence
1. It is in force for almost entire Manipur since 1980 - presently in the whole state except the Imphal Municipal Council Area/constituency
2. Jammu and Kashmir
3. Some NE states including Nagaland
A) Contradict to this Act and human right:
1. Violation of the constitution and international convection due the enactment of the AFSPA
2. Sec 4(a) in which army can shoot to kill violates article 21 of our constitution which gives right to life
3. Sec 4(b) of the act where searching and arrest without warrant violates Article 21 the right to liberty of the Indian Constitution.
4. Dispersion of civil assembly by armed forces violates right to assembly of our constitution.
5. No judicial magistrate permission required while arresting violates article 22 of Indian constitution
B) AFSPA violates various international convention such as
1. Universal declaration of Human right
2. International convention of civil and political right
3. Convention against torture
4. UN code of conduct of law enforcement officials
5. UN body of principles for protection of all persons under any form of detention
Now, Feeling Among People of Manipur
1. The 1972 amendments to AFSPA extended the power to declare an area disturbed to the Central Government whereas in the 1958 version of AFSPA, only the state Governor had the power. The notification in Manipur issued in 1980 still continues even after 24 years, and thereby they feel that they have been deprived of the spirit of liberty, freedom and democracy for too long a period which are enlightened to get after independence.
2. The Act has resulted large-scale violation of the fundamental rights of the citizens under Articles 14,19,21,22 and 25 of the Constitution,Say some cases
A. …. Naga boys of Oinam village being tortured before their mothers by Assam Rifles in July 1987;
B. killing of Amine Devi and her child of Bishnupur district on April 5, 1996 by a CRPF
C. the abduction, torture and killing of 15- year-old Sanamacha of Angtha village by an Assam Rifles on 12 February 1998;
D. On 2 November 2000, in Malom Massacre, , ten civilians were shot and killed while waiting at a bus stop and comes out Sharmila fasting

E. On July 11, 2004, the alleged rape and killing of Thanjam Manorama, suspected to be a cadre of the People’s Liberation Army (PLA), sparked agitations throughout Manipur for the withdrawal of the AFSP Act from Manipur
In case any woman is to be arrested, then it should be done with the help of a lady police/ force personnel, who should also remain present during interrogation, which was not done in this case.. Apunba Lup, is spearheading the current stir, even met the Prime Minister in New Delhi .
Conclusion and argument
For the largest democratic country like India, Is the citizen of these disturbed areas get real freedom even after India got independence from the British. now…..it is slightly different from conventional martial law where army takes over like military junta in Myanmar and Kim Jong in north Korea or Hitler killed Jews in Germany But still the philosophy or idea is similar somehow to over control
1. Its sometimes called necessary evil and dark side of our democracy for a short period and need to be repeal and should not be kept for so long .
2. This act become an legal immune to armed forces from inquiry in a court of law or no prosecution from any wrong done under AFSPA
3. This act comes to forces only when the situations are out of control/loose control temporarily for the prime motive of restore normalcy in the situation for a quick fix, not imposed permanently, if implemented for a prolong period, it become a draconian act.
4. Army is opposing the withdrawing of the said act because they argue that removing the act will lead to demoralising the armed forces and see militants motivating locals to file lawsuits against the army.
5. Politician begins to use for personal gain/or so called political blame game
6. It creates fake encounter at the largest. Nearly 1,528 innocent people die in extra judicial killing carried out by the army.
7. Not listening to the cry of the social activists,NGOs and victims families by the govt but democracy says it is for the people ,by the people and to the people like it says in the papers only.
8. No steps were taken even after reviewing of AFSPA by Jeevan Reddy Committee, Santosh Hegde commission and supreme court …
9. Not following the court order means paving the people elected govt dominated democracy over judiciary and executive which is against the principles of Democracy

Solution of the act as suggested by intellectuals and experts
1. Senior officers or trained responsible Officers along with high intelligent wing officers with prior information to the local authority should lead the armed party instead of non-commissioned officers because guilty case of the army only close the case by dismissing the jawans /armed personals

2. It is high time to rethink for the state and central govt in a democratic country like India that what is the duty of state police forces whose duty is to maintain internal security or civilian law and army whose duty is to defend aggression from external attack, so, which the army does not fall conventionally in this AFSPA ‘s scope of work and duty.

3. A grievance cell should be opened at Sector Headquarters/ Battalion Headquarters so that the civilians can lodge complaints against the force personnel if they so desire and the commander should take necessary action as deemed fit.

4. Another way is inclusion in govt administration , so Mizoram is an existing example, Here, Raldenga who is the leader of Rebel militants of Mizo national front(MNF) The greatest success lay in the central leadership under Rajiv Gandhi offering to make Laldenga the chief minister and succeeded also.So involving insurgents leaders in electoral politics can be an effective ways to deal with AFSPA sometimes as well. Another exampke is NSCN leader general joto of Nagaland who later join BSF as commandant and run a battalion in Naganad with his large militant group.

5. Next is development(in the sense that political development and economic development)
Political development cover the forming of political party by irom chanu Sharmila because according to south Asia Terrorism portal,the number of civilian death in Manipur has continuous decline since 2007 and was lowest in 2016
Now Economic development in the sense that increasing border trade like in Moreh,introducing smart city project, giving livelihoods, jobs and entrepreneurship programmes and so on….

6. Should have political will and people faith in democracy. State govt can also suggest whether the act is required to be enforced or not.

For example.....in Tripura, govt under Manic Sarkar CPI ,…..state recorded 84% in 2014 lok sabha election.Tripura showed the way by withdrawing AFSPA from the state after 18 years showing state govt great role in removing

7. Next is the Co-existence which is much more importance specially to Manipur.People of Manipur like meitei,Nagas,Kukis,Tangkuls,Muslims or any groups living should realise that the land belongs to them all as a whole.The political dialogue should revolve around how to work together rather than how to guard one from another.Otherwise AFPSA will eat them one by one.There should come up with a thought that there should be NO Naga land,NO kuki land,NO Meitei,NO Muslims or NO separate homeland claim otherwise they will take advantage just like family fighting of ourselves and we will be loser at the end and lose of generation of our small communities or groups

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