Understanding the AFSPA – India”s War on its Own People

Posted on January 5, 2012 in Specials

By Shagun Gupta:

For several months now, Omar Abdullah, the chief minister of Jammu and Kashmir, has been campaigning to have the Armed Forces Special Powers Act (or AFSPA) withdrawn from the state. For eleven years now, Irom Sharmila Chanu, social activist from Manipur, has been fasting without fail to have the AFSPA removed from the North-East. An act that was only brought to maintain first and foremost peace in the so-called “disturbed areas” of the North East and J&K has a long history of dissent, continued violence and lost voices.

The AFSPA arrived into this world swaddled in acrimony and bitterness, and it has failed to divest itself of those qualities ever since. Indians, under the colonial rule of the British were themselves subject to scores of draconian and brutal laws. Interestingly, the origin of the Act in question is in these very same British colonial laws, as Delhi University’s Political Analyst Dr. A. S. Ojha points out, “The AFSPA was borrowed heavily from laws passed during the British colonial era and is a dark legacy”. The parliamentarians took just three hours in the Lok Sabha and four in the Rajya Sabha to approve this hideous Act. Yet, in the 50 years of legislative history, AFSPA is an example of patriarchal violence getting State’s legitimacy. Blanket powers are conferred to the Armed Forces and this has ostensibly resulted in innumerable incidents of arbitrary detentions, torture, rape, and lootings.

Under this Act, security forces have at their hands a dangerous mix of carte blanche powers with absolutely no accountability in carrying out their operations once an area is declared as “disturbed”. All the arbitrary and unconstitutional powers conferred to military personnel originate from section 4 of AFSPA. Under section 4(a), even a mere suspicion allows a non-commissioned officer (havaldar) the power to shoot-to-kill any person. He can use force against people who are not presenting any force. He can destroy any property, under section 4(b), if it is suspected of being used as a fortified position. Under section 4(c), anyone can be arrested without warrant if it is suspected that he has committed a cognizable offence. Under section 4(d), force can be used to enter and search any house on suspicion of it being used as a hide out.

Section 6 establishes that no legal proceeding can be initiated against any member of the military for their abuses. This section provides legal immunity and leaves the victims of the armed forces with no legal remedy.

These unreasonable powers and the ensuing violence have had terrible repercussions on people of these affected areas. Disenchantment among youths has led them to abandon their dreams and embrace guns, drugs, alcohol and prostitution. When innocent pedestrians are abducted during crackdowns and killed by security forces for promotions or shot in the streets in the name of law enforcement, it is the women who bare the brunt in reconstructing their lives and nurturing their families.

The 2005 Jeevan Reddy Report recommended the repeal of the controversial law. “The Armed Forces (Special Powers) Act, 1958, should be repealed,” it noted in its recommendations. “The Act is too sketchy, too bald and quite inadequate in several particulars”. The report further added that the perception gathered by its members during the course of its findings is that “the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”. But the government has remained silent for over five years now despite these recommendations.

However, it is not just the Jeevan Reddy Report but also all the International Court of Justice, Amnesty International, and Asia Watch that have implored the Government of India, time and again, to scrap this draconian law.

The level of violations has not only been more severe in the North-East owing to the fact that the act has been present in that area longer than it has in J&K, however human rights violations in Kashmir itself have been gross since 1990. The graphic and animate writing of Barbara Crossett in New York Times (India Moves Against Kashmir Rebels, April 7, 1991) is just one instance in this regard. She wrote a heart wrenching recitation regarding how on February 23rd, 1991, over 100 women in Kunan Poshpora, Kupwara were raped by soldiers of 4th Rajputana Rifles from 11 in the night till 9 am of the next day.

The movement against AFSPA has been burning since 1958 itself. There have been numerous student protests, appeals, strikes and mindless violence by agitated youth. And contrary to the popular belief that the act has been able to bring down violence, the extent of violence in the North East and Kashmir has in fact grown since the act has been put in place.

The only way to guarantee that the human rights abuses perpetrated by the armed forces in the North East cease is to both repeal the AFSPA and remove the military from playing a civil role in the area. Indeed with 50% of the military forces in India acting in a domestic role, through internal security duties, there is a serious question as to whether the civil authority’s role is being usurped. As long as the local police are not relied on they will not be able to assume their proper role in law enforcement. The continued presence of the military forces prevents the police force from carrying out its functions. This also perpetuates the justification for the AFSPA.

Moreover, the definition of key phrases, especially “disturbed area” must be clarified. The declaration that an area is disturbed should not be left to the subjective opinion of the Central or State Government. It should have an objective standard which is judicially reviewable. Moreover, the declaration that an area is disturbed should be for a specified amount of time, no longer than six months. Such a declaration should not persist without legislative review.

At a time when the majority is clearly looking for a move to end the AFSPA, few voices linger on supporting the act by means of amendment instead of complete repeal. “Today’s terrorist does not allow you the luxury of a magistrate’s presence”, notes Major General Rajendra Prakash (retd), arguing why AFPSA is necessary. The question is — How does a civilian differentiate between a soldier of the Army and a terrorist in the case of the AFPSA?

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