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AFSPA and Rule of Law

Armed Forces (Special Powers) Act (AFSPA), 1958 is an act of the Parliament of India that grant Special Powers to the Indian Armed Forces, the power to maintain public order in “disturbed areas”. According to the Disturbed Areas (Special Courts) Act, 1976, once declared “disturbed”, the area has to maintain status quo for a minimum of three months. One such Act passed on 11th September 1958 was applicable to the Naga Hills, then part of Assam. In the following decades it spread one by one, to the other seven sisters states in India’s north east. At present it is in force in Assam, Nagaland and Manipur(excludingImphal Municipal council area),Changlang, Longding and Tirap districts of Arunachal Pradesh. Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An Act passed in 1990 was applied to Jamu and Kashmir and has been in force since. Maharashtra Control of Organized Crime Act 1999(MCOCA), the provisions of which are more draconian than AFSPA (according to legal experts), though stillalive, seems to be like an extinct volcano.
      The AFSPA, have received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened. National politicians like P.Chidambaram and SaifuddinSoz of Congress have advocated revocation of AFSPA, while some like Amarinder Singh are against its revocation. The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15th August 1942 to suppress the Quit India Movement. Modeled on these lines four Ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance, were invoked by the Central Government to deal with the internal security situation in the country in 1947, which emerged due to the partition of India. The article 355 of the Indian Constitution, confers power to the Central Government to protect every state from internal disturbances. In 1951, the Naga National Council Nation was formed and there was a boycott of the first general election of 1952 which later extended to a boycott of government schools and officials. In order to deal with the situation, the Assam Government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels. When the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, providing legal framework for the paramilitary forces and the armed state police to combat insurgency in the region. But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga National Council (NNC) formed a parallel government “The Federal Government of Nagaland” on 23rd march 1956. The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President DrRajendra Prasad on 22nd May 1958. It was replaced by the Armed Forces (Assam and Manipur) Special Powers Act 1958 on 11th September 1958. This Act was invoked in Manipur for suppressing separatistinsurgencies in Manipur who demanded independence from India as Manipur was an independent Kingdom and forced to merge to India. However in the Naxalite hit mainland India, the problem is much more serious than what is here in Manipur & North-East region but no any stringent Act or Ordinance is enacted in these area. The question is, why and what is the logic behind it?
    The Armed Forces (Assam and Manipur) Special Powers Act, 1958empowered only the Governors of the state and Administrators of the Union Territories to declare areas in the concerned state or the Union Territory as disturbed. The reason for conferring such a power as per “objects and Reasons” appended to the Bill was that “Keeping in view the duty of the Union under article 355 of the Constitution, Interalia, to protect every state against internal disturbances. It is considered desirable that the Central Government should also have power to declare areas as “disturbed “to enable its armed forces to exercise the special powers. The territorial scope of Act also expanded to all the states of the North-East: Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram. In addition the words “The Armed Forces( Assam and Manipur) Special Powers  Act 1958” were substituted by Armed Forces (Special Powers ) Act 1958" getting the acronym of AFSPA,1958. Recently the Tripura State Government has decided to withdraw the controversial Act, citing significant reduction in the extent of terrorist activities in the state.  The three districts of Arunachal Pradesh— Tirap,Chanlang and Longdinghave been declared as” disturbed area” under section 3 of AFSPA. In these districts Naga underground factions including NSCN (IM) and NSCN (K) are involved in extortion, recruitment of locals and rivalry.
    The Act has been criticized by Human Rights Watch as a “tool of the state abuse oppression and discrimination”. The South Asian Human Rights Documentation Centre argues that the Government call for increased force is part of the problem. Human rights abuse in Manipur have been an ongoing issue. The Indian security forces have committed several human rights violation in the state. A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by security forces against civilians also in Manipur since the passage of the Act. The report states that the residents believe that the provision for immunity of security forces urge them to act more brutally. The article however, goes on to say that repeal or withering away of the Act will encourage insurgency. IromChanuSharmila,also known as “Iron Ladyof Manipur” or Mengoubiis a civil right activist, political activist and poet began hunger strike on 2nd November 2000 which ended on 9th August 2016,after 16 years. On 2nd November 2000, in Malom, a small town in Imphal valley, ten civilian were shot and killed while waiting at a bus stop. The incident known as the “Malom Massacre” was allegedly committed by Assam Rifles, one of the Indian Paramilitary forces operating in the state. People’s movement to repeal the AFSPA after Manorama incident and movement of mothers (Emas) in naked in front ofKANGLA are all against the Human Rights violation under AFSPA.Ema’s movement resulted the removal of Assam Rifles from KANGLA and repealed of AFSPA from seven Assembly segment of Imphal Municipal area.Movement of ApunbaLup after khwairamband shooting incident was also a movement against the AFSPA.Not only this many Human Rights Organizations are fighting to get the justice for so call fake encounter/extra judicial killings which is also the outcome of invoking AFSPA in Manipur.  AFSPA grants the military wide powers of arrest, the right to shot to kill and to occupy or destroy property in counterinsurgency operations. Indian Officials claims that troops need such powers because the army is only deployed when national security is at risk from armed combatants. Such circumstances, theysay, call for extraordinary measures. Human Rights Organizations have also asked Indian Government to repeal the public safety Act, since, a detainee may be held in Administrative detention for a maximum of two years without Court order. The Wikileaks Diplomatic Cableshave disclosed that Indian government employees agree to acts of human rights violations on part of Indian armed forces and various paramilitary forces deployed in the north –east parts of India, especially Manipur. The violations have been carried out under the cover of this very act. Governor S.S.Sidhu admitted to the American Consul General in Kolkota, HenryJardine, that the Assam Rifles in particular are perpetrators of violation in Manipur, which the very same cables described as a state that appeared more of a colony and less of an Indian state. But the contrary to expectations, Indian general elections of 2014 and 2019, recorded more than 80% voters turn out in Manipur.
A high-power commission headed by the retired Supreme Court Judge N.SantoshHegde was constituted in January 2013 to probe six encounter deaths in Manipur. The Committee, comprising former Supreme Court Judge Santosh Hegde, ex-CEC JM Lyngdoh and a senior police officer has said in its report that the probe showed that none of the victims had any criminal records. The Judicial commission set up by the Supreme Court is trying to make the controversial Armed Forces Special Powers Act (AFSPA) more humane and the security forces more accountable. The committee has suggested fixing a time frame of three months for the Central government to decide whether to prosecute security personnel engaged in extrajudicial killing or unruly behavior in insurgency-hit regions. The commission noted that AFSPA was an impediment to achieving peace in regions such as Jamu& Kashmir and North-East states. The Commission also said the Laws needs to be reviewed every six months to see whether its implementation is actually necessary in states where it is being enforced. About section 6 of the Act which guarantees protection against prosecution to the armed forces, the report said “It is not that no action can be taken at all”. Action can be taken but with prior sanction of the Central Government. The Commission recommended to repeal AFSPA as “the Act is a symbol of hate, oppression and instrument of high handedness”. It had submitted its report on 6th June 2005. After 10 years Government of India rejected the recommendation made by Justice Jeevan Reddy Commission to repeal AFSPA. The second Administrative Reforms Commission (ARO) in its fifth report on “Public order” recommended to repeal AFSPA. It commented that its scrapping would remove sentiments of discriminations and alienation among the people of the North –East India. The Commission recommended to amend the unlawful Activities (Prevention) Act, 1967, inserting a new chapter to deploy the armed forces of the Union in the North-Eastern states. Yes ,it has been amended and passed in the Loksabha in the ongoing parliament session., but amended provisions have many apprehensions among general public.It supported a new doctrine of policing and criminal justice inherent in an inclusive approach to governance. Supreme Court said that any encounter carried out by armed forces in the grab of AFSPA should be subjected to through inquiry. In the words of Supreme Court” It does not matter whether the victim was a common person or a militant or terrorist nor does it matter whether the aggressor was a common man or the state. The Law is the same for both and is equally applicable to both. This is the requirement of preservation of the Rule of Law and preservation of individual liberties.

Sanjenbam Jugeshwor Singh

Sanjenbam Jugeshwor Singh is a regular contributor of Imphal Times. Presently, he is teaching Mathematics at NIELIT. Jugeshwor can be reached at: [email protected] Or WhatsApp’s No: 9612891339.

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