Moderate AFSPA to Tackle Militancy

The AFSPA is a failure considering the growth of militant outfits in the Northeast ever since it was first imposed on the region. Also, the Act runs counter to democracy

Dubbed as one of the most Draconian laws, the Armed Forces (Special Powers) Act, 1958 or AFSPA has attracted the severest of criticism from people across the northeastern region, human rights organizations, women rights bodies, social and political activists, academics, jurists and other intellectuals as violative of the ‘‘right to life’’ and ‘‘right to equality’ guaranteed by the Constitution.

According to critics and those who have suffered at the hands of the armed forces due to numerous killings and inhuman torture of innocent civilians in the garb of ‘‘encounters’’, the AFSPA has given an open ‘‘licence to kill’’ to the members of the armed forces engaged in ‘‘disturbed areas’’ to quell internal disturbance or militancy. In a number of cases the Supreme Court has examined the provisions of the Act and upheld its validity, subject to observance of certain do’s and don’ts to be issued by the armed forces, handing over of the arrested persons to the nearest police station within 24 hours, periodical review on declaration of ‘‘disturbed area’’ every six months and powers of the judiciary to review denial of ‘‘sanction for prosecution’’ of a member of the armed forcers against whom complaint of violation of human rights is received.

The most dangerous and derogatory provisions of the AFSPA are contained in Section 4, which enable the armed forces to enjoy unfettered powers to play with the lives of even non-combatant, innocent civilians on the plea of fighting militants in the Northeast or elsewhere in the country where the Act is made operative. This Section confers extraordinary powers on “any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces” in a ‘‘disturbed area’’ to fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or firearms, ammunition or explosive substances. Such an action can be taken for ‘‘maintenance of public order’’, after giving ‘‘such due warning’’, if such an officer or person of equivalent rank is of opinion that the action is necessary. This provision under Section 4(a) gives the armed forces extrajudicial powers, which are usually given only at war time against enemy countries, not against a country’s own citizens in a democratic dispensation as ours.

Sub-section (b) has given powers to such an officer of the Union’s armed forces to destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or likely to be made, or any structure used as a training camp or hideout by armed gangs or absconders wanted for any offence. On the pretext of ‘‘likely to be made’’ any shelter or structure could be destroyed without going through the due process of law, as held by many legal experts. Another extraordinary power given by Section 4 (c) is the power of arrest, without warrant, of any person against whom “a reasonable suspicion exists” that he is about to commit a cognizable act. Here again, on mere suspicion, arrest of any person could be made.

There are instances galore in the northeastern States where such special powers have been misused. We recall that during Operation Bajrang and Rhino in Assam in the early 1990s, such extraordinary power was abused on a number of occasions by the Army by searching residences of some IAS and ACS officers. Army officials also stopped and searched official vehicles used by civil officers, including district magistrates, executive magistrates and superintendents of police, in due discharge of their official duties. In all these cases, not even a proper enquiry was conducted and the power-crazy Army officials went scot-free.

The Supreme Court, in a 1983 case, observed, rather surprisingly, that “conferment of power on non-commissioned officers like a Havildar cannot be said to be bad and unjustified”. In another case in 1988, the apex court, however, rightly observed: “The armed forces must act in cooperation with the district administration and not as an independent body. Armed forces could work in harmony when deployed in disturbed areas.” Unfortunately, in most cases in the Northeast, it has been observed that the Union’s armed forces prefer to act on their own without taking the district administration into confidence on the grounds of immediate and secret nature of their operation or in pursuing suspects in ‘‘hot chase’’.

It is worth noting that in the wake of brutal killing of innocent people by the security forces in Manipur in 2000, Irom Sharmila, who has now become iconic, has undertaken an indefinite fast since that year demanding repeal or scrapping of the AFSPA. Another heinous crime committed in Manipur was the torture, rape and killing of Thangjam Manorama in Imphal in 2004.

Numerous instances of atrocities and killing of innocent civilians have been reported to the Justice Jeevan Reddy Committee appointed by the Centre to examine, review and make recommendations on the AFSPA. Though the august committee submitted its report in June 2005 and recommended repeal of the Act, the Centre is yet to decide on the recommendations for reasons not far to seek.

It is clearly established by the number of insurgent or militant outfits growing in the Northeast since 1958 that the AFSPA has failed to contain militancy or terrorist/ jihadi activities in the region in spite of the sweeping powers given to the armed forces. The numerous excesses committed on non-combatant civilians by the armed forces has only alienated  them from the public. It has been reported that when the AFSPA was imposed on Manipur in 1980, there were ‘‘only four armed opposition groups’’ in the State, but today there are ‘‘over two dozens armed opposition groups”.  In Assam, when the AFSPA was imposed in 1990, there was only one major rebel group, but now there are at least a dozen, not counting the two dozen jihadi outfits.

In December 2006, responding to what he said were “legitimate grievances of the people of Manipur”, Prime Minister Manmohan Singh declared that the AFSPA would be amended in the light of the report of the Jeevan Reddy Committee. ‘‘The prolonged use of the AFSPA has made it ineffective,’’ states Meghalaya Governor RS Mooshahary. AG Noorani, a renowned constitutional expert, in a write-up titled “Armed Forces (Special Powers) Act: Urgency of Review”, has severely assailed the various provisions of the Act, terming it Draconian, and called for a drastic amendment of Section 4.

Will the learned Prime Minister and Union Home Minister P Chidambaram, a legal luminary himself, expedite the proposed review and give a humane face to the AFSPA, in tune with our best democratic traditions and the will of the people affected by it in the present form?

JP Rajkhowa

(The writer is a former Chief Secretary, Assam) THE SENTINEL