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Mainstream, VOL LIII No 40, New Delhi, September 26, 2015

Militancy in the North-East and Armed Forces Special Powers Act

Monday 28 September 2015

by Siddhartha Guha Ray

The ambush of an Army convoy by insurgents in Manipur killed 18 soldiers of 6 Dogra unit on June 4. It was undoubtedly a dastardly act of violence, rightly condemned by the people of several walks of life. In a quick response to the action, Indian Para Commandos smashed two insurgent camps inside Mynmar territory and brutally killed about 50 Manipuri militants. The Indian politicians felt elated at the ‘heroic deed’ of the Indian Army. It is learnt from the news-papers that the plan of action was taken in a meeting attended by the Union Home Minister Rajnath Singh, Defence Minister Mahohar Parrikkar, National Security Adviser Ajit Doval and Army Chief Dalbir Singh Suhag. The plan received final approval from Narendra Modi on the night of June 7.1 The toughness of the Indian state is reminiscent of US activities against so-called terror threats outside its own territory.

The essay is neither a justification of the strike, nor it raises the question whether the Army action was made in flagrant violation of international norms and ethics. But can such action bring about permanent peace in the disturbed areas of the North-East? In fact, the crux of the problem lies elsewhere and so long the Armed Forces Special Powers Act (AFSPA) remains in operation, peace in the North-East is far away. This essay tries to narrate several features of the AFSPA, which is detrimental to the fundamental rights of the citizens.

The Constituent Assembly, which was entrusted with the task of drafting the Constitution of India, resolved: “When a situation of public disorder aggravates into an internal disturbance that would call for deployment of armed forces of the Union in aid for the civil power in the state.”2 Just two days after the infamous Jallianwalabagh massacre (April 15, 1919), Martial Law was imposed by the British Government in large parts of Punjab, which made the lives of the Indians miserable. Unfortunately not a single member of the Constituent Assembly made any reference to this episode in the debates of the Constituent Assembly. The members took it for granted that Army action was an essential precondition for suppressing any voice of protest in independent India.

After independence Indian democracy faced a serious challenge from the secessionist threats, mostly from its North-Eastern frontiers. Several ethnic groups, particularly the Nagas, demanded the right to secede and form independent nation-states based on their ethnicity. Areas inhabited by the Nagas saw a total boycott of the first general elections of India in 1952. In the wake of repressive measures by the Government of India, the secessionist movement of the Nagas was turned into a violent insurgency.3 The Indian state resorted to its military might for suppressing the widespread insurrection. The Naga Hills were declared a ‘disturbed area’ and the Assam Maintenance of Public Order (Autonomous District) Regulation Act, 1953 was promulgated. The Assam police was replaced by the Indian Army.4

In 1958, the Union Home Minister, G.B. Pant, piloted the Armed Forces (Special Powers) Bill in the Lok Sabha with the objective of conferring upon the armed forces the powers to arrest, interrogate, confine and even shoot to kill any person in such areas which were to be declared ‘disturbed’ by the notification issued by the competent authority. The Act first came into force in the form of an ordinance on May 22, 1958, 12 days after the Budget session of Parliament was over. It was introduced in the monsoon session of Parliament for ratification. Several Members of Parliament opposed it on the grounds that blanket powers being conferred on the Army by this Act would violate the fundamental rights of the people and it would undermine the Constitution by effectively imposing an Emergency without declaring it. Furthermore, it would abrogate the civil powers in favour of the armed forces.5 In spite of such prophetic voices of dissent, the AFSPA was passed for suppressing the revolt of the Nagas.

The AFSPA stipulates: if any Army officer “is of the opinion that it is necessary to do so 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”. The Act empowers the Army officers to “arrest, without warrant, any person, who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest”. The Act authorised the Army to “enter and search without warrant any premises to make such arrests”.6

Experts opine that Section 6 of the Act “provided blanket immunity”. There is virtually no provision for bringing the guilty Army personnel under judicial scrutiny, as the Act says: “No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the regulation.” But experiences of Jammu-Kashmir and the North-Eastern provinces reveal that the sanction of the Central Government for prosecuting the guilty Army officers is very rarely achieved.7

The Section 5 of the AFSPA states that “any person arrested and taken into custody under this regulation shall be made over to the officer in charge of the nearest police station with least possible delay together with a report of the circumstances occasioning the arrest”. But taking advantage of the tortuous and confusing phrase ‘least possible delay’, the Army keep the suspects in their custody without handing them over to the local police and on many occasions atrocities by the Army personnel have caused death of the suspects.8

Two human rights organisations—People’s Union for Democratic Rights (PUDR) and Naga People’s Movement for Human Rights (NPMHR)—challenged the constitutional validity of the AFSPA in the court of law. The Delhi High Court, however, found the Act constitutional on the ground that “a social purpose is fulfilled by the statute”. Hence the existence of such an Act was “just, fair and reasonable”. The Supreme Court also upheld the constitutionality of the AFSPA. But the verdict of the Guwahati High Court in 1991 was somehow different. The verdict said that so long as the Act would remain in operation in a particular area, the government should take a decision through a ‘review system’ every month as to whether the tenure of the Act should be extended. The Court further said that the Army had no right to keep an innocent person in its custody. Explaining the ambiguous phrase ‘least possible delay’, the Court ruled that the arrested suspect should be presented before a Magistrate within a period of 24 hours. The Guwahati High Court finally admitted that the existence of such a law destroyed the “quality of life” of the people of North-East India.9

For last fifty years or more the Indian armed forces have relentlessly abused or misused their power taking advantage of the Act. In November 1995, the para-military officials even dared tapping the telephone of the Governor of Manipur.10 In 2009 the Prime Minister of India, Dr Manmohan Singh, admitted that some provisions of the AFSPA are amenable to changes, which might give the Act a ‘human face’. From this remark of our former Prime Minister it is evident that the AFSPA lacks a human face.

The Indian rulers must rethink over the issue whether the existence of the AFSPA is at all compatible with the maintenance of peace and harmony in the North-East or elsewhere in India. On the occasion of our independence in 1947 the Indian rulers had pledged that they would stand for the achievement of a society which “would ensure individual liberty, equality of opportunity and the fullest scope for every citizen for the development of his personality”.11

The Indian rulers should not ignore the demands of the civil rights activists or the fasting of Irom Sharmila for repealling the AFSPA. They should give up the policy of seeing the people’s protest in the North-East as a mere law and order problem instigated by a few militants and alight from the high pedestal of military might to recognise the popular will of the region.

Endnotes

1. The Statesman, June 11, 2015

2. Report of the Sarkaria Commission, Vol VII, p. 191

3. Sajal Nag, ‘Small States in Large Democracy : Ethnic Minorities in a Majoritarian Indian Polity’, in Sudha Pai (ed.), Hand book of Politics in Indian States, Oxford, 2013. p. 306.

4. Peoples Union For Democratic Rights (PUDR) Report, ‘Endless War’ in A.R, Desai (ed.), Violation of Democratic Rights in India, Vol. I, Bombay, 1986, p. 611.

5. Ibid.

6. Gobinda Mukhoty, ‘The Indian Constitution and Civil Liberties’ in A.R. Desai (ed.), Violation of Democratic Rights in India, Vol. I, Bombay, 1986, p. 82.

7. Gautam Navlakha, ‘Internal Militarisation: Blood on the Tracks’. Economic and Political Weekly, February 8-14, 1997, pp. 302-303.

8. Sajal Nag in Sudha Pai (ed.), Hanbdbook of Politics in Indian States, Oxford, 2013, p. 308.

9. National Campaign Committee against Militarisation, Where Peacekeepers have Declared War: Report on Violation of Democratic Rights by Security Forces and the Impact of Armed Forces Special Powers Act on Civilian Lives, New Delhi, 1997.

10. The Statesman, November 8, 1995.

11. The Statesman, August 15, 1947.

Dr Siddhartha Guha Ray is an Associate Professor, History, Vivekananda College, Kolkata.