The Working Group on Human Rights in India and the United Nations (WGHR) on Sunday called for the repeal of the Armed Forces (Special Protection) Act (AFSPA), 1958 in the aftermath of the December 4 incident where the army shot 11 coal miners in a case of "mistaken identity" leading to violence in the state.
At least three others died in the ensuing clashes, whereas Nagaland's apex tribal body claim six more.
Days after the army shot 11 civilians in a case of 'mistaken identity', chief ministers from the country's north-eastern states called upon the Centre to repeal AFSPA with Nagaland CM Neiphiu Rio observing that the "law has blackened the image of the country".
The human rights body pointed out that this was not the "first time that gross human rights violations" have been committed under the AFSPA, which grants legal immunity for all acts to armed forces when enforced. "As long as impunity prevails over justice, this, tragically, may not be the last time," the statement issued on Sunday read.
The debate seeking a repeal of the "draconian" act gains importance when incidents of civilian casualties come to the fore. Over the years, incidents like the 1991 Kunan Poshpora incident where the armed forces allegedly committed mass rape against women in the twin villages of Jammu and Kashmir's Kupwara district; Manipur fake encounter cases; the 2000 Manipur Malom Massacre incident—which prompted Irom Sharmila's epic 16-year protest fast—in which 10 people waiting at a bus stop were gunned down; the case of 32-year-old Thangjam Manorama who was allegedly raped and her bullet-ridden and mutilated body was found three kilometres from her house have triggered calls for AFSPA's repeal.
BOOM looks at the controversy surrounding this act.
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What is AFSPA?
AFSPA gives armed forces special powers to maintain public order in designated "disturbed areas". AFSPA comes into force only after a government order declares an area as a "disturbed area" under section 3 of the Act, where "the use of armed forces in aid of the civil power is necessary".
The Centre, state's governor, or the administrator of a union territory can declare a part, or the whole state/union territory as a disturbed area through a notification made in the Official Gazette.
Under AFSPA, the armed forces have been empowered to use force, even open fire at people perceived to be a threat; enter and search private areas without warrant; and arrest any person without a warrant if "reasonable suspicion exists".
The special powers outlined under section 4 of the act are as follows:
(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons etc are in force in the disturbed area;
(b) Power to destroy structures used as hide-outs, training camps or as a place from which attacks are or likely to be launched etc;
(c) Power to arrest without warrant and to use force for the purpose;
(d) Power to enter and search premises without warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
The armed forces also have immunity from prosecution.
Once AFSPA comes in effect, under this act, "no prosecution… shall be instituted except with the previous sanction of the central government, in respect of anything done or purported to be done".
Currently, AFSPA is in force in Assam, Nagaland, Manipur (excluding Imphal Municipal area), and three districts of Arunachal Pradesh and areas falling within the jurisdiction of four police stations in the state bordering Assam. The union territory of Jammu and Kashmir has a law— the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, which is in force.
The law is repealed once the Centre believes that the threat perception because of insurgencies in a particular area has subsided. In 1983, AFSPA was enforced in the state of Punjab and the union territory of Chandigarh. However, the same was withdrawn 14 years later. In 2015, AFSPA was withdrawn from Tripura and three years later Meghalaya was taken of the list as well.
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History of AFSPA
AFSPA was originally promulgated on August 15, 1942 by India's Viceroy John Linlithgow to suppress the Quit India Movement launched by Mahatma Gandhi a week earlier. Linlithgow's law—he wanted to clamp down on the Indian protestors since it was perceived to hamper the ongoing war efforts, led to the deaths of 2,500, injured hundreds, and arrested tens of thousands including Mahatma Gandhi, Jawaharlal Nehru, and other leaders of the Indian National Congress. By way of this act, rebellious villages were torched and protesters flogged and tortured.
In independent India, AFSPA was borne out of the need to curb Naga insurgency. In 1954, Nagaland began an insurgency seeking independence. In response, the Centre, led by Jawaharlal Nehru sent the Assam Rifles to shut it down.
Nehru, once a victim of the same law, echoed Winston Churchill and Linlithgow in the Parliament where he said: "No infirm government can function anywhere. Where there is violence, it has to be dealt with by government, whatever the reason for it may be."
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Why is AFSPA controversial?
AFSPA has been criticised for allegedly being "draconian" and the almost-complete immunity the armed forces have for any atrocities they may commit. Wajahat Habibullah, a former IAS officer and ex-chairman of the National Commission on Minorities had called it "against the democracy and the Constitution" and called for plugging "loopholes" if any, after consultation with the Army.
In fact, even Herojit Singh—a whistleblower cop from Manipur who confessed to the extra-judicial killing of a 22-year-old in 2016—said the law was draconian and needed to be repealed.
A Manipuri rights activist argued that the act "encourages soldiers to kill, raid and rape," without impunity. AFSPA also enables "grave human rights violations", activists say.
According to its critics, AFSPA is an undemocratic act that has failed in its primary aim to contain terrorism and restore normalcy in disturbed areas. The critics further allege that instead of containing the threat, the number of insurgents increased after the establishment of this act. Many even held it accountable for the spiralling violence in disturbed areas.
in 1991, when India presented its second periodic report to the United Nations Human Rights Committee, the members questioned the validity of AFSPA and its justification in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR.
On March 23, 2009, the then UN Commissioner for Human Rights Navanethem Pillay had called on India to repeal AFSPA terming the law as "dated and colonial-era law that breach contemporary international human rights standards."
In November 2000, activist Irom Sharmila began her epic 16-year-long hunger strike after 10 civilians were allegedly gunned down by the 8th Assam Rifles in Manipur's Malom Makha Leikai, near Imphal's Tulihal airport. Sharmila's hunger strike became a symbol of protest against AFSPA.
Though AFSPA was withdrawn from Meghalaya in 2004, Sharmila ended her hunger strike on August 9, 2016.
"The Act is a symbol of hate, oppression and an instrument of high-handedness," the 2004 Justice Jeevan Reddy Committee had observed calling for its complete repeal. The Justice N Santosh Hegde Committee also observed that AFSPA was an impediment to achieving peace and called for the periodic review of the law.
More recently, in 2012 the UN once again asked India to repeal the law saying it had no place in Indian democracy.
Human Rights Watch, an advocacy group for human rights calls AFSPA a "tool of state abuse, oppression, and discrimination".
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What has Supreme Court said about AFSPA?
Even as the Supreme Court in its 1997 Naga People's Movement for Human Rights judgment upheld the constitutional validity of the law, it advocated "caution and use of minimum force against our own people" in AFSPA regions was followed or not. The top court also upheld the do's and don'ts formulated by the army as guidelines for operations.
In July 2017, the apex court issued a stinging rebuke to the Centre for continuing with AFSPA in the plea brought forth by the Extra Judicial Execution Victims Families Association. In its verdict, the Supreme Court directed the Central Bureau of Investigation (CBI) to probe the excessive force employed by the armed forces in the case pertaining to the 1,528 alleged fake encounters. This was the first time the army would be probed by senior police officials.
"Do you have alleged rapists in uniform?," a bench comprising of then Justices Madan B Lokur (now retired) and UU Lalit had said in the case where an army man allegedly raped a 13-year old who later died by suicide.
In 2004, the apex court constituted the Justice BP Jeevan Reddy Committee to review AFSPA following the custodial death of Thangjam Manorama Devi by the armed forces. The committee called for AFSPA's repeal and insertion of appropriate amendments in the Unlawful Activities (Prevention) Act, 1967 which would clearly spell out the powers of the armed and paramilitary forces in disturbed areas.
AFSPA has been particularly criticised for alleged instances of heinous crimes against women particularly rape and sexual assault.
The Justice Verma Committee, set up to review criminal jurisprudence in the wake of the December 2012 Delhi gang rape case, recommended the "imminent need to review the continuance of the AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible".
The committee echoed the Supreme Court's observation that the armed forces should not take cover under AFSPA in cases pertaining to rape and sexual assault.
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