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Armed Forces (Special Powers) Act 1958 Revisited

T he Armed Forces (Special Powers) Act 1958 (AFSPA), which has been in operation for decades, exclusively in the northeastern States of the country, barring Sikkim, and for some years in  Jammu & Kashmir, but out of bound for all the so– called mainstream States of the Indian Republic, has become a subject of severe criticism, once again, for its draconian, arbitrary, anti– democratic, anti– civilian and pro– military character. It has been alleged, not without reasons, that, the Special Powers given to the “armed forces”– the military forces and the air forces operating as land forces, which includes other armed forces of the Union so operating, in a disturbed area, has brutalized the military, resulting in gross ‘human rights violations’ in the northeast and Jammu & Kashmir. Under section 3 of the act, any area of a State or the whole of a State or a Union Territory (UT) can be declared as a ‘disturbed area’ if the Governor of that State or the administrator of the UT or the Central government, in either case, is of the opinion that, it is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary. The Governor or the administrator of a UT or the Central Government, may, by notification in the Official Gazette, declare such part or area of a State or UT or the entire State / UT as a disturbed area. On such a declaration being made in the Official Gazette, any Commissioned Officer, Warrant Officer, non– commissioned officer or any other person of equivalent rank in the armed forces may exercise, in the disturbed area, the powers conferred by section 4 and 5 of the Act.

The AFSPA 1958 (28 of 1958) was in replacement of the Armed forces (Assam & Manipur) Special Powers Ordinance promulgated by the President on 22nd May 1958, for containing violence in the north–eastern States of India, as “violence became a way of life” there and the “State administration became incapable to maintain its internal disturbance”. In order to contain the “violence” obviously committed by armed militant or insurgent outfits, across the north–eastern States, disturbed areas were notified, which continue till date, excepting some areas of some States, giving therein wide, unlimited powers to the armed forces of the Union of India, under Section 4 (a) of the Act, right down to a non– commissioned officer (NCO) like a Havalder, whose equivalent in district police force, is that of an Assistant sub– Inspector. If such an authorized officer is “of the opinion that, it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, 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 for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire– arms, ammunition or explosive substances.”

Apart from destroying any arms dump or suspected dumps, training centres, hide–outs, camps, shelter etc. under section 4 (b), a NCO can also arrest without warrant, any person, who has committed or suspected to have committed or is about to commit a cognizable offence, and use such force, as may be necessary, to effect the arrest. Under Section 4 (d) such an officer is empowered to enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may use such force as may be necessary. Thus, it is clear that, mere suspicion of a Havaldar of the ‘armed forces’ is justified as good grounds for killing a person, raiding one’s premises during any time of the day or night, conduct search operation without ‘warrant’ issued by the court of law or to cause arrest of any person or group of persons and to use any kind of force to cause such arrest, which may even extend to death, on the plea of trying to escape arrest.

There have been hundreds of allegations / cases of misuse and arbitrary exercise of powers under Section 4 of the AFSPA, in all the insurgent– affected states, mostly in Manipur, Assam and Nagaland, and in recent times in the Jammu & Kashmir. Apart from numerous cases of killing of innocent persons through fake encounters, as often reported by the local media, there are cases / strong allegations of youths being picked up by the army from villages, on mere suspicion as militants or sympathizers / linkmen and then declared killed in encounters, the latest being that of one Lalit Moran of Tinsukia district of Assam. Innumerable number of women and girls were reportedly abused during past decades of the AFSPA regime by the ‘armed forces’ of the Union of India, whose lawful duties are to defend and protect the rights of the citizens, more particularly the women, the old and the disabled. In an article “Abused women of North–east” [Assam Tribune, January 30, 2013], R.N. Ravi, a former Special director of the Intelligence Bureau, has strongly deprecated the brutalization of the women, by the ‘armed forces’ taking advantage of the region being treated as a “war zone”, through ‘reckless invocation of the AFSPA, that gives the military unbridled powers and further shield them from scrutiny of their acts’. He has re– exposed the brutality of the assailants of 17 Assam Rifles, who had kidnapped, gang– raped, killed and even most barbarously mutilated the genitals of Thangjam Manorama of Manipur, through multiple gun– shots. That is the bravado of Indian army, whose duty is to defend the country and its citizens, from external aggression, and internal ‘marauders’ wherever they are called in to ‘aid civil power’ in the event of major disturbance. The 12– year long fast of iron lady Irom sharmila against the AFSP Act has had no takers with New Delhi. In the eighties of the last century, Indian army personnel committed ‘gang rape’ of dozens of women in Nalbari district of Assam, in the name of searching for insurgents, and no one of the rapists was brought to justice.

The AFSPA gives protection to the perpetrators of unlawful acts or any grave offence being committed by one or more members of the “armed forces”, which is why, in spite of normalcy returned to most parts of the region, fake encounters still continue, as reported in the media. While the military does not take any action to search or raid areas suspected to be sheltering / nurturing ‘jihadi’ outfits, in the name of searching for ULFA / NDFB or other anti– talk militant groups, raids under the Act are continued, with excesses often reported, including molestation / rape of women and killing of innocents, resulting in massive protests by villagers ‘en masse’– road blocks becoming a regular feature of such protests, which practically go unheeded. Section 6 of the Act is the protective shield for the errant or desperate members of the ‘armed forces’. Under this provision “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any such person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”  It is least appreciated by the authorities, that, the affected innocent people, are totally alienated due to unfriendly ‘military excesses’ and have provided extra ‘fire power’ to the depleting force of the militant outfits, if one considers the large number of ‘pro– talk’, peace & opportu8nity – seeking militant groups / sub– groups in the region.

The Indian army has been allowed to do normal policing jobs in the northeastern India for too long, which, apart from making them unpopular, due to the excesses committed under the AFSP Act, has often shifted their prime responsibility of defending the borders of the country effectively against intrusion by enemy forces. While the State police forces have been doing a pretty good job, they are often being made redundant by over– enthusiastic military personnel, who consider them as superior to the civil forces, which is unbecoming in a democracy. Isn’t it sad that, in a so– called vibrant democracy India, a draconian law like AFSPA is allowed to continue, whereas in many lesser– known democracies, no such law exists?

Justice J. S. Verma has called for review of the AFSP Act immediately by amendment of its draconian provisions. Earlier the government– appointed Justice BP Jeevan Reddy Commission had also recommended abrogation of the Act. “There is an imminent need to review the continuance of AFSPA and AFSPA– like legal protocols in internal conflict areas, as soon as possible. This is necessary for determining the propriety of resorting to this legislation in areas concerned”, Justice Verma Committee recommended. [Assam Tribune, January 25, 2013]. Interestingly, though Maoist –extremism has gripped a number of States outside the north–east India, where hundreds of innocent civilians and also security personnel lost their lives in most brutal and barbarous attacks, the Centre has not dared to impose the AFSPA in those States, for purely political reasons. On the other hand, the intensity of militancy has been very much on the wane in the north–east, thanks to the ‘peace dialogues’– why then continue the draconian law? Isn’t it double– standard of the same Congress Regime both at the Centre and most north–east? Meghyalaya governor R. S. Moshahari has also asked publicly for an immediate review of the AFSPA, replace it by adequate amendment of the Criminal Law of India, giving due protection to both civilians as well as central armed forces personnel, while engaged in counter– terrorism operation. It’s high time; the Centre appreciates the pulse of the people on this fringe region of the country, and does away with the discriminatory, de–humanized and draconian law, well before the 2014 General Elections.

J P Rajkhowa

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Assam
 
Assam is a northeastern state of India with its capital at Dispur located in the city of Guwahati.
 
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Nagaland
 
Nagaland is a northeastern state of India with its capital at Kohima. located in the Guwahati city.
 
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Mizoram
 
Mizoram is a northeastern state of India with its capital at Aizwal. located in the Guwahati city.
 
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Meghalaya
 
Meghalaya is a northeastern state of India with its capital at Shillong. located in the Guwahati.
 
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Manipur
 
Manipur is a northeastern state of India with its capital at Imphal.
 
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Tripura
 
Tripura is a northeastern state of India with its capital at Agartala.
 
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Arunachal Pradesh
 
Arunachal Pradesh is a northeastern state of India with its capital at Itanagar.
 
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Sikkim
 
Sikkim is a northeastern state of India with its capital at Gangtok.
 
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