AFSPA: A law that defies democracy
Ranen
Kumar Goswami
Right,
Left or left-of-the-centre, whatever be the political colour of a government,
the draconian Armed Forces Special Powers Act (AFSPA) is their favourite weapon
for taming militancy. Originally, a brainchild of the British called the Armed
Forces Special Powers Ordinance, who had promulgated it on August 15, 1942, to
suppress the Quit India Movement, their desi inheritors modeled their own
version on it in 1958. On May 22 that year, the Union Government issued it as
an Ordinance, which was later introduced and passed in both Houses of
Parliament in September.
Section 3 of the Act says that a State
or any part of it or a Union Territory can be declared a disturbed area if the
Governor of the State or the Administrator or the Central Government is of the
opinion that it is in such a disturbed or dangerous condition that the use of
armed forces in aid of civil powers is necessary. Pay a look at Section 4; the
tone of all its Sub-Sections is that even a non-commissioned officer is free to
arrest any person without any warrant, or fire upon, even to the causing of
death, any person, or enter and search any premises if he or she is satisfied
just with the suspicion that the person is acting in contravention of any law
or there are arms in the premises. But the really frightening is Section 6,
which says: “No prosecution, suit or other legal proceeding shall be
instituted, except with the previous sanction of the Central Government,
against any person in respect of anything done or purported to be done in
exercise of the powers conferred by this Act.” In other words, it's a license
for the wrongdoers in armed forces to do anything they want without any fear of
accountability; what they need is just a
suspicion.
On November 2, 2000, in Malom, a town
in Manipur, ten civilians waiting at a bus stop were shot dead by jawans of
Assam Rifles. The AFSPA was in force in the State. From that very day, Irom
Sharmila Chanu, the iron lady of Manipur, undertook a fast demanding repeal of
the Act. Her fast is still going on even after 13 years. Three days later, she
was arrested under Section 309 of the Indian Penal Code for what the
authorities chose to call an attempt to suicide. Then followed another incident
in the early hours of July 11, 2004, when 17 Assam Rifles picked up Thangjam
Manorama, 32, from her village in Bamon Kampu, Imphal East district and killed
her allegedly after sexually assaulting her. The entire State of Manipur rose
in protest that compelled the Union Home Minister and the Prime Minister to
visit the State in succession. Several organisations met them and demanded
repeal of the Act.
Bowing to popular pressure, the Centre
on November 19, 2004 set up a five-member committee under the chairmanship of
former Supreme Court judge, Justice B. P. Jeevan Reddy to review the Act. In
terms of reference, the Centre asked the Committee to advise it whether to
amend the provisions of the Act or “to replace the Act by a more human Act.”
The Committee submitted its report on June 6, 2005. It says it has kept three
basic conditions while devising a solution to the problem. First, armed forces
can be deployed in the interest of security of the nation which is of paramount
importance. Second, it is equally the duty of the Union and the States to
protect the fundamental and other rights of the citizens. And third, the
deployment of armed forces to protect a State from internal disturbance ought
to be an exception and not the rule.
The most important and significant
suggestion the Committee has made in its list of recommendations at the end of
the report is at number 5 which says: “The Armed Forces (Special Powers) Act,
1958 should be repealed. Therefore, recommending the continuation of the
present Act, with or without amendments, does not arise.” But it is not enough,
because even if the AFSPA meets with its death, its provisions will still
remain alive in the Unlawful Activities Prevention Act(ULP Act), 1967. For
example, Section 49 of the Act says no suit, prosecution or other legal
proceedings shall lie against any serving or retired member of the armed forces
in respect of any action taken or purported to be taken by him in good faith in
the course of any operation towards combating terrorism. There's nothing in ULP
Act to make erring armed forces personnel accountable. It recommends
amendments, which in its opinion, should be incorporated as Chapter VI A of the
Act.
In another recommendation, it suggests
setting up of grievances cells in each district where armed forces are deployed
in order to instill confidence among the citizenry that the State has also
taken steps to guard against their excesses. And no prize for guessing that
these recommendations are in cold storage since last eight years. Even the
Justice
J. S. Verma Committee suggests an amendment in Section 6 of the AFSPA, removing
the requirement of prior sanction where the person has been accused of sexual
assault. All this has fallen on deaf ears. To top it all, the Centre extended
the cover of AFSPA in Assam and border areas of Arunachal Pradesh and
Meghalaya for a period of six more month with
effect from November 4, 2013. The Act has been in force in Assam since 1990.
The Manipur Government extended its cover in the State for another year with
effect from December 1, 2013. Not to be left behind, the Left Government of
Tripura on December 14, 2013 decided to extend its cover in the State for
another six months from January 1, 2014.
Meanwhile, Irom Sharmila still remains
a prisoner. On March 4, 2013, in reply to the charge of attempted suicide, she
told the Patiala House Court, New Delhi, “I love life. I do not want to take my
life, but I want peace and justice.” The Supreme Court in its widely-hailed
intervention following eviction of a fasting Baba Ramdev from Ram Lila Maidan,
Delhi on June 5, 2011, recognised that “hunger strike is a form of protest
which has been accepted, both legally and historically in our constitutional
jurisprudence.” Yes, it's true. Right from Gandhiji in the freedom struggle to
Potti Sreeramalu in the movement for a separate Andhra Pradesh, to Anna Hazare
for an anti-graft law, all have been using hunger strike as a non-violent
weapon. It is beyond our understanding why the same judicial yardstick has not
been applied in Irom Sharmila's case. Or should we conclude that when found
inconvenient even democratic rights are outlawed? (The Assam Tribune, January
10, 2014, Friday)
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