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Why Temperance Will Not Work With AFSPA

There are only two ways to proceed with the controversial Armed Forces (Special Powers) Act, says Supreme Court lawyer Rakesh Shukla: retain it or scrap it. Tempering it with pleas to refrain from ‘˜excessive use of force’ etc will simply not work with an army trained to inflict maximum damage

Withdrawal of the Armed Forces (Special Powers) Act (AFSPA) has become a key issue in discussions on resolving the Kashmir situation. Innumerable dharnas and protests in New Delhi and the northeast, including the nude protest by women in Manipur on July 15, 2004, in front of the Assam Rifles headquarters at Kangla Fort, Imphal, have focused on a repeal of AFSPA. The protest, with a banner reading ‘˜Indian Army Rape Us’, followed the brutal torture, rape and killing of 32-year-old Manorama on July 11, 2004. AFSPA has been in force for the past 60 years in the northeast, and, in the ’90s, was a comparatively new entrant to Kashmir.

In line with the colonial policies followed by the government of independent India in tackling a wide range of social movements, the ancestry of AFSPA lies in the Armed Forces (Special Powers) Ordinance, 1942 brought in by the British to tackle the Quit India Movement. The Armed Forces (Assam and Manipur) Special Powers Act, 1958, conferring special powers on members of the armed forces, was initially brought into the state of Assam and the then union territory of Manipur, in 1958, to tackle the Naga insurgency. Subsequent amendments have seen the Act made applicable to Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram. Militancy in Punjab saw the enactment of the Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983. According to the Statement of Objects and Reasons, giving the rationale for enacting the legislation, the Act was brought in with a view to enabling the police to deal with the extraordinary situation that had arisen in Punjab and Chandigarh as a result of terrorist activities by extremists and secessionist elements in the state.

In a similar pattern, the peak of the armed phase of the movement in Kashmir saw the enactment of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 conferring special powers on the armed forces in disturbed areas of the state of Jammu and Kashmir.

It is not commonly known that the AFSP Act would fit into a single foolscap page and has one substantive provision which is the core of the legislation. The section giving powers to the army to use force or fire to the extent of causing death, to arrest without warrant, enter and search a disturbed area is the controversial provision. Section 4 of the AFSPA reads as follows:

Section 4:  Special power of the armed forces. Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,

a)      If he is of 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 firearms, ammunition or explosive substances;

b)      If he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or likely to be made or are attempted to be made, of any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;

c)       Arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

d)      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 for that purpose use such force as may be necessary, and seize any such property, arms ammunition or explosive substances;

e)      Stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any person who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.

The spectacle of parliamentary committees and review committees headed by retired judges, like the Jeevan Reddy Committee, debating and pondering the legislation defies comprehension. After the killing of Manorama and the subsequent agitation for the repeal of AFSPA in 2004, Prime Minister Manmohan Singh formed a committee headed by retired Supreme Court judge Jeevan Reddy to review the law. The Jeevan Reddy Committee submitted a report in 2006 recommending the repeal of AFSPA, but the government has chosen not to officially make the report public.

AFSPA is not a complicated law with numerous sections and provisos requiring deliberation. Perhaps the general perception that the government forms committees as a safety valve when things are at a boil is justified.

The two options available are: either the section stays or it goes. The road of ‘dilution’ of the provision and the Act was taken by the Supreme Court when it adjudicated upon the constitutional validity of AFSPA and pronounced judgment in 1997. The Naga Peoples’ Movement for Human Rights challenged the validity of the legislation in 1982. The Supreme Court chose to keep the case pending for 15 long years during which atrocities mounted and people living in the northeast were effectively deprived of their fundamental rights.

In 1997, the court incorporated in the judgment, titled Naga Peoples’ Movement for Human Rights versus Union of India, certain do’s and don’ts which were part of instructions issued by the army and made them binding on the armed forces. These were in the nature of moral norms like ‘do not use excessive force,’ ‘do not ill-treat anyone, in particular women and children,’ and ‘do not torture’. In addition, the judgment directed that the armed forces use minimal force required, hand over arrested people at the nearest police station without delay, and conduct search and seize operations according to the provisions of the Criminal Procedure Code. But it upheld AFSPA as constitutional and valid.

The judgment of the Supreme Court seems to have made little difference to the ground realities. This is instructive and a pointer to certain dimensions that may help in forming a perspective on AFSPA. The Constitution of India does not contain any provision for martial law. Giving independent powers to the armed forces results in the army supplanting, rather than supplementing, civil power. The dangers of not confining the army to barracks and involving them in civil administration are clear from the course of events in Pakistan.

AFSPA is the only law in the country that confers independent powers directly on the army to shoot to kill, to mortar-shell places, arrest and search civilian citizens in areas declared ‘disturbed’ under the Act. Section 3 of the Act specifies that the armed forces are to be used to aid civil power. However, the impact of the use of phrases like ‘in aid of civil power’ has to be looked at in the context of the chain-of-command psychology integral to the functioning of the army, which makes it unsuited to taking orders from ‘mere civilians’. The consensus among all democratic governments not to use the army against its own citizens has a sound basis in the evolution of forms of government.

The ruthless training necessary to transform a man into a person who shoots to annihilate the perceived ‘˜enemy other’ has to be taken on board. Niceties like warning, using as little force as necessary, first firing in the air, then shooting below the waist, which are to be observed by the police in dealing with citizens have no place when nations wage war. The ability to use maximum force to cause the utmost damage and destroy the enemy at first strike is the sine qua non of a battle-ready army.

Awareness of fundamental rights, application of mind, and the gradual escalation of the quantum of force to be used according to the needs of a changing situation are against the very objective and training of the army and will affect its battle-preparedness. The inevitable consequence of giving independent powers to the army being large-scale violations of human rights, our Constitution permits the army only to aid civil power.

In the constitutional scheme of things, the armed forces come under defense and can communicate their views to the ministry. The consequences of increasing the use of the armed forces to tackle ‘internal disturbances’ can be seen by recent statements to the media by Air Chief Marshal Naik, chairman of the Chiefs of Staff Committee, that ‘If a soldier is to be potent and effective in a counter-insurgency theatre, he must have all the legal protection he can get’.

This brings us to one of the areas of deepest resentment against the armed forces in ‘disturbed areas’ where they have been deployed. In cases of offences committed against civilian citizens by members of the armed forces, the army has consistently resisted the jurisdiction of the ordinary criminal courts of the country. Similarly, the central government has refused to grant necessary sanction to prosecute, in the criminal courts, army personnel accused of heinous crimes like rape. The commission of rape can by no stretch of the imagination be included in acts done in the line of duty, requiring legal protection.

The refusal of the army to submit to the jurisdiction, and the denial of permission by the central government to prosecute army personnel in the criminal courts remains true from the killing and rape of Manorama in 2004 to the killing this summer of three Kashmiri youth — Mohammad Shafi, Shehzad Ahmed, and Riyaz Ahmed, all residents of Nadihal in Baramulla district — who were lured into army custody with an offer of jobs and then killed in a fake encounter. According to the police investigation, Colonel D K Pathania and Major Upinder Singh of the 4th Rajput Regiment were the perpetrators of the killings. However, they have not been taken into custody or produced before a criminal court. It is the same story every time: for example, in the 2000 case in Pathribal, the Central Bureau of Investigation filed murder charges against five army officers — Brig Ajay Saxena, Lt Col Brajendra Pratap Singh, Maj Saurabh Sinha, Maj Amit Saxena, and Subedar Idrees Khan — for their role in abducting and killing five villagers in a staged armed encounter. Court proceedings in the case drag on; none of the accused have been taken into custody or brought before a judge. According to certain media accounts, some of the accused have continued to serve in the army and were even promoted. Similarly, in 2007, five alleged militants killed in a joint operation in Gandherbal by the police and the army, later proved to be civilians who had been abducted and murdered. Although charges were filed against the police officers involved, the army officers implicated were not handed over to the police for arrest and prosecution.

Even in cases where the criminal court has seized jurisdiction, and chargesheets have been filed detailing evidence, the army insists on court martial as an alternative. The Army Act under which court martial proceedings are instituted is primarily for offences like disobedience in front of a superior officer and violations of good order and discipline. The perspective of justice from the point of view of the civilian victim/survivor has no place in court martial proceedings. In fact, the proceedings are conducted within army premises and presided over by army officers. The atmosphere is a far cry from a space where a civilian witness can depose free from fear.

On April 3, 1995, the Nagaland government constituted a commission of inquiry headed by Justice D M Sen, retired judge of the Guwahati High Court, to look into incidents of shootings, arson and rape in Akhulato, Kohima and Mokokchung, between December 1994 and March 1995. In the Kohima incident, on March 5, 1995, a tire of a truck that was part of a convoy of 16 Rashtriya Rifles burst while passing through the capital of Nagaland. Rashtriya Rifles personnel mortar-shelled the town of Kohima, dragged people out of their houses, and killed them, claiming that the convoy had been attacked. The chilling findings of the Justice Sen Commission of Inquiry, that the paramilitary forces committed cold-blooded murder, arson and rape in the three incidents investigated, cannot be dismissed as baseless allegations by human rights groups.

The consequences of the conferment of independent powers on the armed forces, the lack of redress for offences committed, the army’s chain-of-command philosophy, the training of a psyche tuned to killing the ‘˜enemy’ are factors that need to inform our thinking on the continuance of the Armed Forces (Special Powers) Act.

*The paper is written by Rakesh Shukla.

*The author is a Supreme Court lawyer.

*The article was earlier published October 2010.

(Courtesy: InfoChange News & Features)

*You may read the article at http://infochangeindia.org/201010288578/Human-Rights/Analysis/Why-temperance-will-not-work-with-the-AFSPA.html

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