Special Powers of the Armed Forces v. Human Rights of Civilians


The article is an insight into the gruesome human rights violations taking place in the North-East India and Jammu and Kashmir owing to the imposition of a draconian law by the name of Armed Forces (Special Powers) Act by the Government of India. The provisions of AFSPA is in direct contravention to the Constitution of India and a number of human rights treatises, yet, the Government and the Army have stood firm in its continuance citing counter-insurgency as the reason.

The role of a State

There are several theories on the evolution of a State like The Divine Theory (where State is considered to be the creation of God and King, being the messenger of God has a divine mission to rule the people),The Social Contract Theory (originally propounded by the Sophists in Greece; this theory states that State is a deliberate and voluntary creation of man to control anarchy; this is more like a contract between the people and the person whom they select to govern them), The Evolutionary/Historical Theory (state is the product of a gradual process of social development), The Force Theory (state is the product of human aggression i.e. warfare between various political communities) etc.

A State has four elements: the population, the government, territory and the sovereign. State, today, is the custodian of the people and their property. It is no longer an abstract notion. It is the fundamental duty of the State to secure the welfare of its people and their property and give them a sense of security. In olden times, if a member of a family was killed, vengeance was sought by the other family members and it was purely a personal affair. State had no role in delivering justice to the victims. With the advent of the State, things have changed over the course of several centuries. There are States that have played this role incredibly well and there are States that have gone against their own population and ushered in endless suffering for them.

The Government, being an essential element of the State, is actually the entity that enforces the policy of the State, makes all the decisions on behalf of the State and represents the State in the international platform. In common parlance, the State is equated to its Government. Thus, the mandate lies on the Government to secure the welfare of its citizens. Sometimes when a Government functions against the wishes of its people, there is retaliation on the part of the population, another crucial element of the State resulting in anarchy. Thus, for a State to be in harmony, it is required that its four components must exist in harmony.

India qualifies to be called a State because we have a legitimate Government elected as per the consent of the people (which in political terms is called as the "general will" of the people), a fixed territory, people who reside in this territory and a sovereign i.e. the Parliament. Thus, it is the duty of the State of India (or the Government) to look after its people.

India is an extremely diversified country on the lines of religion, ethnicity, linguistics etc. No country has such diversity as India and thus our country is also called a "Salad Bowl", a term used to reflect its diversity. However, the co-existence of such a diversified group of people is not easy and differences are bound to be there. There are groups demanding secession like the Khalistan Movement (demanding a separate State of Punjab, which was mainly active in the 1980s and is almost dead now), United Liberation Front in Assam's (ULFA) demand for a separate country for the Assamese people, demands for Nagalim (a separate country for the people of Nagaland) etc.

However, these movements only reflect the will of a faction of the population they represent and not the wish of the entire community. These separatist movements have caused decades of unresolved conflict and discord between the people they claim to represent and the Indian Government. To control the intensity of such conflicts, the Government of India has resorted to steps that have been heavily criticized by the international community for the apathy shown towards the people concerned. Most of the measures are coercive and violates the basic human rights of the people involved thus exposing the failure of the State in its primary duty of protecting its civilians.

The Armed Forces (Special Powers) Act, 1958 and violation of human rights


Draconian, a stain on democracy, a tool of abuse, howsoever one may describe it, one of India's oldest and most-controversial Act continues to persist despite protests by civilians and NGOs and opposition and criticism for the very nature of the Act by United Nations, Amnesty International, Human Rights Watch and numerous other human rights bodies. AFSPA: an acronym familiar to all Indians and definitely all North-Easterners and Kashmiris.

The Armed Forces (Special Powers) Act (AFSPA) was enacted on August 18, 1958 and passed by the Parliament of India on September 11, 1958. Under AFSPA, armed forces are granted special powers to rule in 'disturbed areas' of the North-East and Jammu and Kashmir under which they are subjected to immunity. This is one of the major factors behind the gross human rights violations in these areas in the form of rape, torture, extra judicial killings, arbitrary detention etc. by the armed forces. Moreover, for prosecution, permission from the Central government is a requirement which is rarely granted.

In the North-East
The passage of the 1958- Act has a lot to do with the historical background of this region often secluded by the Centre. Firstly, the longest separatist struggle of India has its origin in this region due to the ethnic and cultural diversity. Secondly, the step-motherly treatment meted out to this region by the mainland Indians has instilled seeds of the need for 'self-governance' in these regions. The territorial disputes due to border issues are another source of disturbance in this region. Most importantly, these regions were made a part of India by the signing of various agreements to cede them with Indian Republic forcefully in view of their strategic significance; which has sown the seeds of discontentment.

Nagaland
The Naga insurgency, the oldest in India, as part and parcel of the new Republic is the outcome of Independent India's proclamation of the Naga territory whose residents had conducted a referendum in 1951 for an independent country of Nagaland and 99 per cent had voted in favour of separation. However, the insurgency was crushed by the Indian Army that eventually led to the imposition of AFSPA and intense counter-insurgency operations by groups like The Nationalist Socialist Council of Nagaland (NSCN).

Mizoram
Mizoram, another north-eastern state has a similar history when the Mizo National Front (MNF) was formed to tackle a famine in the region in the early 1960s where there was little response from the Indian Government to the cries of help thereby prompting them to "struggle against Indian colonialism." This resulted in the signing of the Mizo Accord between the MNF and the Government of India where the MNF agreed to renounce violence.

The fact that the Government justifies the use of this Act actually propels the demand by civilians to secede from India. But most significantly, this Act was passed with the aim of protecting civilians from militants who had formed groups close to the border areas and had flourished. But on the contrary, the 1958- Act along with the AFSPA imposed in J&K has done exactly the opposite. It has led to discontentment and fed public anger (especially the brutal acts of the armed forces). It has fuelled resentment. The people had lost faith in the Government and more than feeling secured, they are afraid of these armed forces.

Jammu and Kashmir
One of the requisite for the imposition of AFSPA in a particular territory is the fact that the area must be a "disturbed one". It is undisputed that Kashmir is a hotbed of conflicts and it is on this ground that the Government and the Army justifies the continuance of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (the 1990 Act) despite calls from some sections for its repeal on the ground that in over 25 years of its existence, the AFSPA has only proved to be counter-productive.

Issues surrounding AFSPA

Despite over six decades since independence, no political party has come forward with a credible solution for this ever-persisting problem. It is doubtful if any party ever would. For a controversial act like AFSPA cannot be repealed without bringing all concerned parties to the negotiation table. The cyclical nature of the Act is a major problem towards any solution to this problem. AFSPA breeds discontent among the people giving them stronger reason to secede from the nation and thus they associate with insurgent groups against the government who then enforces the brutal measures more stringently. But a nation cannot certainly turn a blind eye towards the sexual harassment meted out to the women and children whose family has to tolerate the atrocities on their wife and children and watch the culprits go scot-free. Torch rallies, self-immolation, nude protests are some of the forms in which civilians have displayed their anger on the continuation of this Act.

Human Rights Violations

Democracy and Rule of Law are two of our core principles of governance. The Supreme Court has recently pointed out that the provisions of AFSPA violate the principles of the Constitution and the human rights of people. The immunity granted to security personnel for their actions under section 6 of the 1958-Act and section 7 of the J&K Act are invincible and cannot be allowed in a democratic country. Under these sections, security personnel are empowered to shoot and kill on the mere suspicion of "a threat to law and order".

The Supreme Court has been hearing petitions demanding an inquiry into 1,528 deaths in counter-insurgency operations and related incidents in Manipur. The top Court has pointed out the misuse of the Act and many extra-judicial killings have indeed taken place under the garb of AFSPA. The Supreme Court has rejected the notion that every armed person in such "disturbed areas" is an "enemy" and thus it is justified to shoot him/her.

Rape, molestation and torture of women and children, enforced disappearances, arbitrary detention and executions, housebreaking and looting have become a part of everyday life in such "disturbed areas" with some of them carried out by the security forces themselves. Such brutal crimes cannot be justified on the grounds of national security.

This Act is in complete contravention of Articles 14, 21 and 22 of the Constitution of India. AFSPA is also in violation of the Universal Declaration of Human Rights (the "UDHR"), the International Covenant on Civil and Political Rights (the "ICCPR"), the Convention Against Torture, etc.

The stand of the Government

The government however stands firm on its view. If AFSPA is repealed, insurgency would be on the rise (but human rights violations are on the rise too, who has a solution to that?). Although, it was passed as a short-term measure, but AFSPA has already completed 58 years which of course is way too long! The Jeevan Reddy Commission set up in the aftermath of the death of one Thangjam Manorama while in the custody of Assam Rifles had played a commendable role in ensuring the Act was more "humane" and amendments made in that regard cannot be ignored. It suggested amending the Unlawful Activities (Prevention) Act, 1967 (UAPA) to address the gaps that the repeal of AFSPA may create.

It is disturbing to note that not a single personnel of the Army has been tried in a civilian court for their abuses under the guise of action taken for national security with adequate immunity granted by AFSPA despite having a heinous record of abuses of human rights.

Often police even refuse to register cases rendering the civilians helpless.

In one instance, five soldiers were tried by court martial and sentenced to life imprisonment for a fake encounter conducted in J & K in 2010, known as the Machil case, which was a rare exception.

Reaction of the International Community

International voices against the AFSPA have not been given a proper hearing or attention by the former UPA Government. Over more than 10 years ago, in 1997, the United Nations Human Rights Committee expressed concern over the "climate of impunity" provided by the Act. Also, the Committee on the Elimination of Discrimination against Women (2007) and the Committee on the Elimination of Racial Discrimination (2007) have all called for an end to the AFSPA.

As stated by Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions, India also should ratify a number of international treaties, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture) and the International Convention for the Protection of All persons from Enforced Disappearance, 2010.

The internal community is also of the opinion that military courts should not conduct trials because they are structurally flawed and mired with impartiality and incompetence.

Recent Developments

The ongoing crisis in Jammu and Kashmir has brought the issue of AFSPA to the fore again. Owing to the ongoing crisis, Mehbooba Mufti, the current Chief Minister of Jammu and Kashmir had suggested the revocation of the Act from Kashmir on a "trial basis".

However, the matter comes under the Home Ministry that needs to take a call urgently if the incumbent Government is indeed serious about human rights being violated on a daily basis.

Conclusion

It is without a doubt that the worst sufferers in this battle are the common people who have to constantly live under the shadows of this draconian law and a constant fear of their lives. For these people, it would not be wrong to say that the State has failed them. It is an anti-insurgency law, but under it, insurgency has multiplied manifold.

The lack of accountability of the security personnel must be done away with and they must be subjected to investigation. As a matter of fact, AFSPA, as a whole, must be repealed.

Irom Sharmila, the Iron Lady of Manipur who resorted to an indefinite fast against AFSPA in 2000 has continued it for about 16 years now and has successfully managed to draw the attention of many ordinary people, academics, human rights activists, feminists from across the country. Amnesty International has sought the removal of all "requirements of sanction or prior permission" to prosecute security force personnel.

It is high time the Government comes up with a peaceful solution sans AFSPA and acts as the true custodian of the rights of its people.


Comments

Author: K Mohan06 Aug 2016 Member Level: Platinum   Points : 3

I do understand the gravity of the situation being highlighted by the author but please note that in some states, the police is helpless to counter the overtures of the trouble makers as the police force is not equipped with the right arms and powers. So the government has to give that rights to armed forces with special powers to tame the insurgencies and other anti activities. In the melee the armed forces might have gone out of box and created havoc by punishing the locals for no fault of them. Please remember the military people are trained to punish or bash those regardless. There cannot be selective punishment as done by the police. So there is always a benefit of doubt cast on the armed forces in controlling law in those troubled areas. Nevertheless the human rights violation of armed forces excesses are being closely monitored and reported to the higher authorities for redress. But the army has there own version of defending them and the set backs from their side are always protected.

Author: Partha Kansabanik06 Aug 2016 Member Level: Diamond   Points : 4

This article is unfortunately a part of the series of vilification campaign initiated by the author against Indian Armed forces. The author has painstakingly consolidated acts of excesses committed by individual member(s) of Armed Forces. These are exceptions which have been tried to be presented as regular events. The exceptions have been highlighted but the Army's role in maintaining discipline and its developmental activities are never mentioned. Now let us come to AFSPA.

In India, AFSPA has been mostly in force in North-Eastern states and in Jammu and Kashmir.
Apart from the so-called human rights issue, the critics opine that AFSPA has failed in its aim to restore normalcy in insurgency-affected areas. However, according to its supporters and retired Officers of the Army, AFSPA is essential in present Indian scenario, They point out that in a democracy, solving an insurgency is not the task of the army. What an army can do and has done in the Indian context is to keep the insurgency down to a level where the civil administration can carry out its normal functions. To achieve this purpose in future also, AFSPA is essential.

So, for the sake of the integrity of the country and keeping in view of the excellent human rights record of the Indian Army (which is one of the best in the world; many activists opposing AFSPA will be astonished to know), we must accept AFSPA as a necessary evil.

Author: Partha Kansabanik08 Aug 2016 Member Level: Diamond   Points : 2

Indian liberals are deeply influenced either by the activities of so-called liberals in the US, or by the policy propagated by the Chinese or Russian (earlier the USSR) leaders. Govt. of India should also assiduously emulate the examples of treatment of New Mexicans by the US Govt., treatment of Uighars by Chinese Govt. and treatment of Chechens by the Russian Govt. Or may be Indian Govt. should follow the example of Pakistan Govt.'s treatment of Balochis in that povince or Banglaesh Govt.'s action in Chittagong Hill Tracts (CHT).



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