AFSPA must go: Use of armed forces against civilian population goes against basic tenets of the Constitution
The revocation of the AFSPA piecemeal from some states is not enough. It is time to repeal the AFSPA laws in totality as they have no place in a democratic and civilised society
The killing of 14 civilians in Mon, Nagaland by a special force of the Assam Rifles has brought into sharp relief the Armed Forces (Special Powers) Act (AFSPA), a lawless law that enables the security forces to act with impunity, which has led to atrocity after atrocity on the civilian population in the North-East. Eight young men, who were coal miners, were travelling in a van when they were ambushed by a special force, who were purportedly targeting armed insurgents. The killing of six of the miners led to protests by the local people, which resulted in eight more deaths due to firing by the armed forces.
The Mon atrocity is not an isolated incident. Time and again, under the cover of the AFSPA, massacres of civilians have taken place with security forces claiming every time that they were opening fire against armed militants. The AFSPA has been in operation in the North-East since 1958.
The AFSPA can be imposed by the Centre on a state, or, a part of it after it is declared a disturbed area under section 3 of the Act. The Centre can invoke the AFSPA without the consent of the state government concerned. Under the law, the armed forces are given unlimited powers to open fire and kill any person contravening the law, or carrying arms and ammunition; they have powers to arrest any person and search any premise without warrants.
The AFSPA was extended to Jammu and Kashmir by an Act in 1990 and it remains in force there still. The AFSPA, along with the Public Safety Act and other draconian measures have created a regime of impunity and brutal excesses on the civilian population of J&K in the past three decades.
Under AFSPA, to prosecute any security personnel for a crime committed requires sanction from the central government. This is practically impossible as the experience of Jammu and Kashmir shows. Till July 2018, successive state governments had sent 50 cases for sanction of prosecution against armed forces personnel under the AFSPA. However, the union government denied permission to prosecute in all these cases.
In the infamous Pathribal incident, five civilians were killed in a fake encounter by some army personnel claiming they were foreign militants. Though the CBI investigated the case and charged some of the army men for the crime, eventually the case went to an army court-martial where all the accused were acquitted on the grounds that the evidence did not establish any prima facie case against the accused.
There has been a constant demand to repeal the AFSPA. Irom Sharmila conducted a hunger strike demanding the abolition of AFSPA which stretched to sixteen long years. In 2004, the UPA government set-up a committee headed by Justice Jeevan Reddy to look into the working of the AFSPA and the committee in its report in 2005 recommended the repeal of the law. But all efforts to amend the law, or, withdraw it from certain states were blocked due to the opposition from the Army and the Defence Ministry.
In Manipur, after the brutal rape and murder of an alleged militant, Tangjam Manorama, by some security personnel in 2004, there was a big movement for the revocation of AFSPA. It resulted in only the Imphal municipal area being removed from the jurisdiction of the Act.
In Jammu and Kashmir, during the second term of the UPA government, the Omar Abdullah government, the Left parties and other democratic organisations demanded that the disturbed area proclamation and the operation of AFSPA be withdrawn from all the urban and other areas of J&K, except the border region since militancy and violence had come down to very low levels. Despite the then home minister also subscribing to this view, the government did not comply with this demand due to the open resistance of the army chief and the defence establishment.
The use of the armed forces against the civilian population goes against the basic tenets of the Constitution. It is highly regrettable that the higher judiciary has not struck down this law as ultra-vires of the constitution in all these years.
The Modi government has been utilising the arsenal of anti-democratic, draconian laws to the fullest to build a national security state, which brutally tramples upon the fundamental rights of citizens. The Unlawful Activities (Prevention) Act, the National Security Act, the sedition clause in the IPC along the AFSPA are part of the authoritarian security architecture.
The recent extension of the jurisdiction of the Border Security Force from 15 kilometres to 50 kilometres inside the international border in Punjab and West Bengal has to be seen in this light.
It is good that the chief minister of Nagaland, Neiphiu Rio, and the Meghalaya chief minister, Conrad Sangma have demanded the repeal of the AFSPA from their states and the North-East. In 2015, the Left Front government of Tripura had got the AFSPA revoked in the state by getting the “disturbed area” proclamation withdrawn.
However, the revocation of the AFSPA piecemeal from some states is not enough, it is time to repeal the AFSPA laws in totality as they have no place in a democratic and civilised society.
Views are personal)