56 years of AFSPA: Legalising Rule O` Flaw
By Anjuman Ara Begum
`It was on the 11 September 1958 that the President of India signed the Act, and the same day 9/11 is observed as the anti-terrorism day world over, the struggle against state terrorism started on the same day for the inalienable civil, political and cultural rights of the peoples of Northeast India with the imposition of AFSPA 56 years ago…`™. this was the reaction of civil society members gathered on September 11, 2014 at Guwahati to `celebrate`™ the 56 years of Armed Forces (Special Powers) Act, 1958 (AFSPA, in short). AFSPA became law on September 11, 1958 after receiving assent of the president of India. It was promised to be a temporary measure. 56 years on, the Act is still in force despite several calls for its repeal and is still held strong by the armed forces an excuse for legalising repression and impunity calling it a `holly book`™. Participating in the same gathering renowned human rights activist of the region Babloo Loitongbam, `if this is temporary measure then what it the meaning of permanent?`™, a thought that provokes human conscience to rethink about AFSPA.
RULE OF LAW, a universally celebrated and adopted concept to counter arbitrariness and unreasonableness in law and practice. The concept dominates the law making process of today`™s civilised and democratic countries. Soon after adopting a written constitution in 1950 with implicit guarantee of RULE OF LAW, the state of India continue to resort to repressive policies as well as practices. Following the colonial footsteps, the AFSP bill was passed in the parliament in August, 1958 after a brief seven hours debate. It was in the same year of 1958, India signed Universal Declaration of Human Rights, Geneva Conventions of 1948, Convention against Racial Discrimination and several others. State of India continued to reaffirm its commitment towards the protection and promotion of international human rights standards despite resorting to repressive policies and practices like AFSPA domestically.
Soon after becoming a law, AFSPA started concretising it`™s existence. It`™s application continued to be extended as well as it`™s abuses. Needless to say that the Act has `normalised`™ routine declaration of disturbed area, encouraged the practice of extrajudicial execution and reinforced the culture of impunity. Let`™s us consider these three aspects.
Firstly, the extension `disturbed area` status for north eastern states since 1955 has now attained the status of a mere routine administrative exercise. What constitute `disturbances`™ is still not codified in legal literature. Even the judiciary ignored this aspect. In Naga People Movement for Human Rights vs. Union of India, AIR 1998 SC 431, it was simply said that the country understands what constructs a `disturbed area`™. It was further decreed that there is no requirement that the Central Government shall consult the State Government before making the declaration. In fact, there are instances where state`s resolution against such declaration has been ignored. It is reported that Nagaland state assembly passed resolutions against the extension on four occasions and each time these resolutions have been ignored by the centre government. Tripura, a state often claimed as an example of successful counter insurgency measures still remained `disturbed`™. Tripura hardly had any major armed encounter in recent years. Such back door declarations of emergency situation continued simultaneously when Government of India claimed internationally that there is no situation of armed conflict in the country.
Declaration of `disturbed area` also means additional budget allocations. In a corrupt country like India, this aspect is important in the context of recurring extension of `disturbed area`™ status. Parliament of India`™s record suggests that the Government has been providing financial assistance. During the period of the year 2011- 2012 financial assistance was provided under Security Related Expenditure (SRE) to the affected States are Assam (153.04 crore), Nagaland (83.11 crore), Manipur (28.88 crore), Tripura (39.25 crore), Arunachal Pradesh (27.82 crore), J& K (342.27 crore)
[Loksabha Unstarred question number 1195]. The financial obligation incurred
upon the declaration of ‘disturbed area’ never deter the central government to
rethink over it’s routine extension.
Secondly,
the practice of extrajudicial execution is legalised
under AFSPA. International human rights law prescribes
that extrajudicial execution is an act that arbitrarily deprives life of human
beings and violates national laws such as those prohibit murder, and/or
international standards forbidding the arbitrary deprivation of life and
protecting right to life. Amnesty International defines extrajudicial execution as unlawful, deliberate killings carried
out by the order of a government with its complicity or acquiescence while the
mandate of the UN Special Rapporteur on Extrajudicial and Summary Execution
calls it an execution carried out in the absence of a death sentence imposed by a court judgment. Section 4 of AFSPA permitted
every commissioned officer, warrant officer, non-commissioned officer or any
other person of equivalent rank in the Armed Forces may use ‘special force' to
the extent of causing death. The north eastern region has witnessed thousands
of extrajudicial executions, arbitrary detention, disappearances, custodial
deaths, custodial rapes etc under AFSPA.
Thirdly,
the culture of impunity has grappled the whole security architecture in the
region. The right to remedy is violated by
section 6 of the AFSPA which provides immunity from legal accountability. As per the national law, a FIR to the police station is the
preliminary step to seek. Section 6 of the AFSPA prohibits legal
proceedings against the armed forces without a central government’s ‘sanction’.
The incident of granting sanctions for prosecution is unheard in this region.
In other words, this provision has in effectively abused as a shield of
immunity for armed forces personnel implicated in serious human rights abuses.
Probably this is
the reason most of the reports of Commissions of Inquiry are yet to see the
light of day. It would not be wrong to presume that these reports probably
narrated the sagas of murders or the false encounter killings and hence were
kept secret. It is to be noted that the much publicised Jeevan Reddy
Committee report on the AFSPA, was leaked to the media, and has not yet
officially released.
It
is upheld by the jurists that certainty of punishment deters crimes, not
severity of punishment. The immunity provided under Section 6 of the AFSPA has
always encouraged the armed forces to commit murders in the name of encounters
as punishment is uncertain. In fact the perpetrators are immune due to the
criteria of prior sanction and instance of granting sanctions from prosecution
is unheard of in the region.
The
56 years of AFSPA has a deep impact upon the society of north east India that
has now learnt to internalise militarisation and has negotiated life of
arbitrariness under RULE O’ FLAW.
The
Hegde Commission’s investigation of six cases provides ample scope for the Apex
Court to understand two things: (i) the nature of its actual implementation and
(ii) the wide scope of abuse of power granted under the AFSPA. Accordingly, the
highest judiciary of the country, the last resort for justice, has ample scope
to declare the AFSPA unconstitutional in the days to come soon. This will be an
epoch making event in the history of the judiciary as well as in the history of
humanity.
*About the author: Anjuman
Ara Begum, LL.M, Ph.D is an independent researcher based in Guwahati and is associated with Women in Governance (WinG), India.
Opinion expressed is author’s own. She can contacted at anju.azad@gmail.com
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