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'AFSPA no blanket immunity to army'

Sentinel Digital DeskBy : Sentinel Digital Desk

  |  10 July 2016 12:00 AM GMT


D. N. Bezboruah

The Armed Forces (Special Powers) Act (AFSPA) is a very special piece of legislation that one does not encounter in any other democratic country. It is a law specially ected for the armed forces (more specifically for the army) that empowers the armed forces to shoot and kill any individual suspected of being engaged in antitiol activities. In actual practice, the army has been known to pick any person carrying a weapon or behaving in a furtive manner (quite often out of fear of what could happen to him with armed soldiers around). Under these circumstances it would indeed be very risky for someone even carrying a licensed weapon to get it repaired. But in States like Manipur and Assam or Jammu & Kashmir where the AFSPA is in force, the army has generally found easier ways to enforce the black law. All that a soldier of the rank of an NCO has to do is to shoot down anyone and place a weapon as well as some incrimiting documents on the dead body of the killed person in order to establish that he was indeed an antitiol individual planning to use the weapon for antitiol activities. I wonder if even the army has kept count of the number of persons killed under the provisions of the AFSPA.

There are two other aspects of the AFSPA that must not be lost sight of. One is that the law was ected only for the disturbed areas of the country. The Centre has sought to perpetuate the myth that India has no other disturbed areas beyond Jammu & Kashmir and some States of the Northeast. We would like to know why the AFSPA is not extended to other States where the Maoists have massacred policemen and jawans of the security forces in large numbers. Have these States and regions too not become ‘disturbed areas’ according to the mysterious definition of the Centre about what constitutes a disturbed area? And since Kashmir’s Hizbul Mujahideen ‘commander’ Burhan Wani was killed in an encounter in Antg on Wednesday, and since Kashmir can now expect a major backlash as a consequence, is it likely that the AFSPA may be amended to make the law even more Draconian for Jammu & Kashmir? Or are the Centre’s measures in such exigencies going to remain only reactive instead of becoming proactive? The other important aspect is that there are few democracies in the world that do not have ‘disturbed areas’ or areas that experience disturbances at times. How many of these democratic countries have a law like the Armed Forces (Special Powers) Act in order to empower the armed forces to gun down urmed civilians merely to make things easier for the armed forces? Is it not strange that the world’s largest democracy alone should have such a Draconian law that makes mere living a hazardous task for citizens wherever the army is present? Compare what keeps happening in India to what is beginning to happen in countries like the United States as a consequence of the country’s arms laws ebling any citizen to buy even automatic weapons as easily as one buys a pair of shoes. In my humble opinion, the arms laws of the United States are harmful for the country and hazardous for its citizens as many mass killings in university and college campuses have proved. And what is now happening in Dallas as a consequence of the controversial police shootings in Minnesota and Louisia is horrifying to say the least. A sniper who said he wanted to shoot White policemen killed five officers and wounded seven others before he was killed by the police. Is the United States Administration about to ect a law like our AFSPA because the country now has ‘disturbed areas’? This is most unlikely. In fact, the US is unlikely even to bring about any legal modifications to make licences to buy arms mandatory—something they should have done about a century ago to prevent the numerous acts of casual genocide by trigger-happy perverts.

I have always said that when all the other wings of democracy fail us in India, it is the judiciary alone that thinks about the people. This was proved to the hilt once again when on Friday the Supreme Court ruled that the army had “no blanket immunity” to shoot or use excessive force against suspected enemies of the country under the controversial Armed Forces (Special Powers) Act. Obviously, the operative word in the ruling was ‘suspected’. The two-judge bench of the apex court ruled on Friday that even if someone is seen carrying weapons in a “disturbed area”, it does not automatically give the security forces the right to shoot them. Significantly, the judges added that ordiry crimil courts, and not just army courts martial, had the jurisdiction to deal with alleged extra-judicial killings by the army. The learned judges also decided to examine whether the tiol Human Rights Commission was a mere recommendatory body and a “toothless tiger” or whether its mandate was binding on all authorities in the country. The bench comprising Justices Madan B. Lokur and U. U. Lalit, who were dealing with public interest petitions, rejected as “a play on words” the Centre’s claim that a warlike situation prevailed in Manipur where the Act is in force. However the judges acknowledged that the State was witnessing ”interl disturbances”. The court refrained from deciding immediately whether to order a probe into the 1,528 purportedly extra-judicial killings that the petitioners had accused the army and police of having carried out in Manipur. Instead, it granted four weeks’time to the amicus curiae (a court appointed legal expert to advise on the case), Maneka Guruswamy, to submit details of a select 62 among the 1,528 cases after consulting the petitioners, that include an association of the families of the victims. The court is expected to pass its orders on a possible probe by the CBI or a special investigation team after receiving Guruswamy’s findings. The bench also said that the army was free to conduct its own inquiry. Writing the judgement, Justice Lokur said, “merely because a person is carrying arms in a disturbed area, he does not ipso facto become an enemy... That a person is not a mere lawbreaker but an enemy can be determined only by a thorough inquiry as postulated by (a 1997 Constitution bench ruling in a case relating to the) ga People’s Movement of Human Rights.” Under guidelines set by that judgement, the security forces have to follow a series of steps after encountering such a suspect, starting with “due warning”. The court was of the view that “a thorough inquiry” was needed before shooting in such instances because “the alleged ‘enemy’ in this case was a citizen of our country, entitled to all fundamental rights including those under Article 21 of the Constitution. In a significant observation, the court added, “It has yet to be determined whether the deaths (in Manipur) were in fake encounters as alleged or whether the deaths were in genuine encounters in counter-insurgency operations... It has also to be determined whether the use of force was disproportiote or retaliatory... If any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offence.”

The following part of the judgement is particularly relevant for a democracy: “Each instance of an alleged extra-judicial killing of even such a person (an enemy of the country) would have to be examined or thoroughly inquired into... It might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for the inquiry would still remain whether excessive retaliatory force was used to kill the enemy.”

So far, the typical stance of Indian courts has been to leave things as they are largely because of the army’s strong opposition to any attempt to scrap the AFSPA. I have had very senior army officers (including a former army chief) tell me that the army cannot function without the AFSPA. I am uble to accept this because India is not the only democracy in the world. And other democracies of the world do not have anything even remotely resembling the AFSPA. The latest stance of the Supreme Court is fair to the armed forces as well as to the citizens of India. What is gratifying is the Supreme Court’s positive reaction to the ubiquitous rejection of the AFSPA as a black law. Apart from sounding the necessary words of caution to the armed forces, it has sought details of 62 out of the 1,528 cases before it, and one cannot rule out the chances of the AFSPA getting scrapped as constituting a violation of the Indian Constitution. It will be a red-letter day for the Judiciary and the people of India if the AFSPA eventually gets struck down by the Supreme Court.

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