INDIA: Disturbed or discriminated?
Contributors: *Ms. Anjuman Ara Begum
November 11, 2013
The extension of 'disturbed area' status for north eastern states since 1955, and thereby the activation and extension of emergency laws, has been but a routine administrative exercise for the union government. The legacy was upheld this year. The union has again extended the 'disturbed area' status of Assam for another six month period, with effect from 4 November 2013. Despite such back door declarations of emergency laws, India continues to claim internationally that there is no situation of armed conflict in the country.
The latest extension means continued application of the draconian Armed Forces (Special Powers) Act, 1958 (AFSPA) in Assam and in the 20 km area in bordering states of Arunachal Pradesh and Meghalaya. Reportedly, the decision has been taken by the Home Ministry after considering the security situation in these three states.
The practice of declaring an area as a 'disturbed area' began with Assam. Assam was declared a 'disturbed area' for the first time in 1955 under the Disturbed Areas Act, 1955 (DAA) at a time when the current Nagaland state was still a part of it. Nagaland became a separate state in 1963, and remained 'disturbed'. In November 1990, again, the entire state of Assam was declared a 'disturbed area', under AFSPA and the DAA, with the argument that the use of armed forces to aid civilian government was necessary to counter the United Liberation Front of Assam (ULFA) sponsored militancy. Assam still remains 'disturbed'. On 17 September 2001, areas in Arunachal Pradesh, Nagaland, and Meghalaya, lying in 20 km range from the Assam border were also declared 'disturbed areas'. Earlier, in 1980, the entire state of Manipur had been declared 'disturbed'. Following a public agitation in July 2004, the disturbed area tag was partially lifted from Imphal city, the state capital. And while Nagaland has remained a designated 'disturbed area' till today, 38 police stations in Tripura state and the Tirap and Changlang districts of Arunachal Pradesh have also been declared 'disturbed.'
AFSPA and the DAA empower the state and the union government to declare an area as 'disturbed'. Once the declaration is made, the armed forces, empowered with lethal powers can be deployed in the area. According to a parliamentary question answered on April 5, 2013, the Ministry of Home Affairs disclosed that the following areas in the country have been declared as disturbed[1]:
(i) Entire State of Assam & Nagaland;
(ii) Tirap, Changlang & Longding districts of Arunachal Pradesh;
(iii) 20 km wide belt bordering Assam in Arunachal Pradesh & Meghalaya;
(iv) The entire State of Manipur, excluding the Imphal Municipal Area;
(v) Parts of Tripura as notified by the State Government; and
(vi) Jammu, Kathua, Udhampur, Poonch, Rajouri, Doda, Srinagar, Budgam, Anantnag, Pulwama, Baramulla and Kupwara districts in Jammu & Kashmir.
Declaration of 'disturbed area' also means additional budget allocations. The Ministry of Home Affairs further informed the parliament that union government has been providing financial assistance in 2011- 2012 under Security Related Expenditure (SRE) to the affected states; Assam (153.04 crore), Nagaland (83.11 crore), Manipur (28.88 crore), Tripura (39.25 crore), Arunachal Pradesh (27.82 crore), and Jammu and Kashmir (342.27 crore).
The state of Meghalaya is the exception to the trend of 'disturbed area' increase and extension. The state government decided not to recommend that the union declare the Garo Hills area of the state as a 'disturbed area' on the ground that 'the situation in the region is not bad compared with other disturbed areas of the country'. The Garo Hills district of Meghalaya has been subject to active armed hostility for few years. The Garo National Liberation Army (GNLA) rebels, under the leadership of a former police officer, Mr. Champion Sangma, have carried out insurgent activities in three impoverished districts of Garo Hills and killed over 35 people, including security personnel.
There have been instances where a state's resolution against such declaration has been ignored. It is reported that the Nagaland state assembly passed resolutions against the extension on four occasions. Each time these resolutions have been ignored by a union government bent on extension. The recent declaration of Nagaland as 'disturbed area' for another year under AFSPA reinforces nothing but the union's dominance over law and order in a state, something supposed to be a state subject under schedule 7 of the constitution. Nagaland is under active ceasefire for decades now; casualties amongst the armed forces are rare. Yet, recently, on 30 June, 2013, the 'disturbed area' status has been extended to Nagaland for another year through the Gazette of India Notification No. S.O. (E) dated 30 June 2013. Immediately after the notification, there was protest against the declaration. Several citizen's groups issued their protest notes. The latest declaration completely overlooked the fact that has hardly been any army casualty in a decade.
Tripura, a state often touted as an example of successful counter insurgency measures, has also still remained 'disturbed'. Tripura has not had any major armed encounter in recent years. The only reward for this lack of conflict: in June 2013, Tripura police stations marked as 'disturbed area' have been reduced from 34 to 25.
The parameters to declare an area 'disturbed' are never clear. Initially, in 1958, only a state could declare an area a 'disturbed area'. In 1972, an amendment to AFSPA empowered the union government to also declare an area 'disturbed'. With this amendment, the power and role of state governments reduced to that of cheer leaders in a game of cricket.
To date, there is no legal definition of what constitutes a 'disturbed area', a specially designated zone where the right to life can be easily violated under AFSPA with absolute impunity. Even the judiciary has ignored this aspect. In Naga People Movement for Human Rights vs. Union of India, AIR 1998 SC 431 (NPMHR in short), it was simply said that the country understands what constitutes a disturbed area. It was further decreed in the same judgment that there is no requirement that the union government shall consult the state government before making such a declaration. The Court held that a declaration of 'disturbed area' under Section 3 of AFSPA has to be for a limited duration, subject to periodic review before the expiry of six months. The judgment stated that 'the conferment of power to make a declaration under Section 3 of AFSPA on the Central Government is not violative of the federal scheme as envisaged by the Constitution'. Further, the Court held, 'a similar conferment on the Governor of the State cannot be regarded as delegation of the power of the Central Government'. 'Although a declaration under Section 3 can be made by the Central Government suo motu without consulting the concerned State Government, it is desirable that the State Government should be consulted by the Central Government while making the declaration', held the Court.
The continuation of 'disturbed area' status has been criticised by the Human Rights Committee in its observation on India's third periodic report in 1997. The international legal standard, such as the one laid down in article 4 of International Covenant on Civil and Political Rights, 1977 (ICCPR), allows a state to undertake extra ordinary measures 'in times of emergency which threatens the life of the nation', following an official proclamation that the measures taken are 'strictly required by the exigencies of the situation', and on the condition that certain fundamental rights, including the right to life and the right not to be tortured, can never be suspended. The UN Human Rights Committee, in its General Comment on article 4 of the ICCPR, emphasised that measures taken under article 4 are carefully justified as why it is necessary and legitimate in the circumstances.
It is time for the Government of India to stop this routine practice of prolonging emergency in north east India. Being a party to the ICCPR, it must comply with article 4. Doing so will help the union overcome its 'disturbed' syndrome, and start functioning responsibly.
*About the author: Anjuman Ara Begum is Program Officer - India Desk at Asian Human Rights Commission and can be contacted at e-mail india@ahrc.asia
[1] Loksabha Question, Unstarred question number 1195, accessed through http://164.100.47.132/LssNew/psearch/QResult15.aspx?qref=135994 as of October 30, 2013
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