India has the longest constitution in the world. This should also mean that our constitution is well analysed and our ancestors tried to include all our fundamental rights in it. Protection of Life And Personal Liberty is one such right guaranteed to all citizens under Article 21 of the Indian Constitution which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. But can procedures established by the law allow the state to kill somebody? Can a citizen be stripped off their basic human rights by using this exception? The procedure laid down by the law cannot be used as an excuse by the state to violate human rights.
It is essential to know the historical background of the legislation before talking about how the enactment of this act led to human rights violations. The Armed Forces (Special Powers) Act,1958 (henceforth, AFSPA or “the Act”) was enacted in the state of Manipur and Assam in 1958, first as an ordinance and then as an official Act. The Nagas who lived in Naga Hills that spread across Manipur and Assam, never felt like they were part of India. They had a different culture and spoke a different language. In the year 1951, they held a referendum for a separate Naga nation which was successful and was approved by 99% of Nagas. In the year 1952, they boycotted the elections. The state government gave special powers to the police force and the Assam rifles to suppress the movement by Nagas. When both forces failed, the state government took the help of the central government which resulted in the enactment of the Armed Forces (Special Powers) Act, 1958.
The concept of AFSPA was taken from the British Government. The British government had enacted the act to suppress the Quit India movement and the war for independence. While the war against the British government was to attain freedom, the war by the Nagas was to restore their identity. Sadly, in the battle to regain their identity, the Nagas started losing their basic human rights.
The Act under Section 4, allows any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces to arrest any person without a warrant. Additionally, if he feels that an absconder is hiding somewhere, he can destroy any structure without verification and use force even to kill. Under Section 6 of the Act, an armed personnel cannot be challenged in the court of law for all these acts. Armed Forces have misused this section on various occasions.
Mohd Azad, a 12-year-old boy, was reading the newspaper with his friend Kiyam Anand Singh when some Manipur police commandos rushed into Azad’s house. He then was brutally beaten by the commandos. They showed Kiyam a revolver, quizzed him and told him that Azad was an underground activist. Azad was dragged by the commandos and shot dead in broad daylight in front of his family and neighbours. According to Azad’s school, he was an innocent peace-loving minor boy, and he had no criminal antecedents whatsoever. The villagers and social activists formed a joint action committee to get justice. The Manipur Chief Minister gave ₹2 lakh to the joint action committee and requested them to take the body from the mortuary. LM Khaute, the Inspector General of Police, was appointed by the Manipur governor to inquire into the matter, but a report was never submitted. Azad’s mother was threatened to withdraw her case, and the family is still waiting for justice.
In a similar case like Azad’s, a 20-year-old man Oinam Papak was abducted by seven to eight commandos of the Assam rifles. When the family was not informed about his location, they complained about this incident to the local MLA, who promised to take action. After a month, the family got news through the radio that the army had killed seven men in an encounter, Oinam Papak being one of these seven men. ₹1 lakh was given as compensation to the family by the Chief Minister. While by granting compensation, the government accepted its mistake, the compensation cannot bring back somebody’s life.
According to Article 14 of the Indian Constitution, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. To have laws is one thing and to implement them is another. If this fundamental right exists, then why couldn’t the rights of a 12-year-old boy be protected? AFSPA came under the ambit of procedure established by the law, but it also took away the family’s right to seek justice. Why is the country treating some of its citizens different from the others? The Act does not allow people from the disturbed areas to take help from the court of law if they feel that their rights are violated, making them feel alienated from the country.
There have been various committees to review the AFSPA. The central government formed a five-member committee headed by Justice Jeevan Reddy in 2004. This committee was established to review the provisions of AFSPA and advise the Government of India to replace the Act with a more humane act. The committee submitted its report in 2005, and the government headed by then Prime Minister Manmohan Singh promised to replace it.
India is a signatory to various treaties which talk about stopping human rights violation. One such treaty is the Geneva Convention which has the following significant provisions:
- Outlawing violation of the right to life
- Prohibiting cruel treatment and torture
- Protecting the personal dignity
- Providing for treatment of the wounded and sick
- Prohibiting discrimination on the basis of race, colour, religion, nationality.
The issues addressed in additional Protocol II are:
- Fundamental guarantee to all persons not directly involved in the hostilities
- Special provisions in respect of persons where liberty is restricted
- General protection of the civilian population
- Prohibition of forced movement and starvation as a method of combat
- Prohibition of taking of hostages and outraging of personal dignity and
- Prohibition of violence of life and persons, in particular murder, mutilation, cruel treatment and torture.
Mohd Azad’s killing violated all the provisions mentioned above. The aim of this treaty was to stop violence against humanity and protect the rights of the people who are not directly involved in the hostilities. If international treaties don’t have any value why are they signed? Are they just to gain international popularity and show that India is a peace loving nation?
The AFSPA was enacted to control the militant groups in Assam, Jammu and Kashmir, Nagaland, Manipur and some parts of Arunachal Pradesh and Meghalaya. Frequent raids, fake encounters, demolition of private property and torture by the armed force made the lives of people living in the disturbed areas vulnerable. The residents of these states feel like they are not a part of India. So, the question that needs to be answered is, whether India is doing enough to make them feel like they are part of this country.
According to the Multidimensional Index of Backwardness published by the Reserve Bank of India, Arunachal Pradesh, Assam, Jammu Kashmir, Nagaland and Meghalaya are amongst the least developed states of the country. The Government of India should handle this situation with development and not with violence because this act is not helping the people of the “disturbed areas” believe that they are part of India.
According to Pradip Phanjoubam, “Hegemony-counter hegemony, violence-counter violence- the oppressive cycle of the oppression phenomenon can go on and on. The coercion of the AFSPA hence has served to feed the counter coercive reactions of the insurgents and vice versa. Small wonder then that even after 50 years, the situation in the Northeast is still ‘extraordinary’ enough to ‘deserve’ the AFSPA.”
The Armed Forces Special Powers Act was enacted to control militancy or rebellion against the nation. The armed forces started misusing the act and used violence against the citizens who were not militants as seen in the case of Mohd Azad and Oinam Papak. The case of Mohd and Oinam are just two examples, but fundamental human rights are violated every day in the disturbed areas. The AFSPA should be amended to ensure that the armed forces do not kill innocent people, without providing due justification.