The Union Home Ministry (MHA) has extended the Armed Forces (Special Powers) Act (AFSPA) in Nagaland for another six months, officials said here on Thursday. It is a news that might not gain much importance in the national media or might be valid for many in the name of national security and maintenance of law and order. Another related new related to AFSPA in recent times is the custodial death of a 23-year-old man named Jayanta Bora of Assam, who was alleged by the police of being associated with armed organisations that demand sovereignty. The family of the man even did not even receive his dead body.
An Introduction to AFSPA
In simple terms, AFSPA gives armed forces the power to maintain public order in disturbed areas. This act which has a root in the colonial times was brought up by the then Prime Minister Jawaharlal Nehru almost 6 decades ago. The Act came into force in the context of increasing violence in the North-eastern States almost six decades ago, which the State governments found difficult to control. The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958.
It is said that a few years into Indian Independence, Jawaharlal Nehru, the first Prime Minister had to face the first insurgency in the Naga districts of then Assam along the Burmese border. Indian Union responded back by sending in thousands of Indian army soldiers and paramilitary men from the Assam Rifles to crush the rebellion. Rousseau’s principal contribution to legal theory is his idea that in existing societies, rule of law and rule by law does not occupy a single continuum and do not present mutually exclusive options. Probably, Nehru did validate what Rousseau had argued and passed the Armed Forces Special Powers Act (1958) in the Indian Parliament. One of the few members who spoke against the law in the Parliament was Surendra Mohanty from Odisha. He quoted “We want a free India. But, we do not want a free India with barbed wires and concentration camps, where havaldar’s (sergeants) can shoot at sight any man,”. This statement probably denies the essence of the law with the impunity given to the armed forces, where a civil aspiration is blown off by Military force. Today AFSPA covers a major portion of the North East.
This draconian law has its root in colonial times. This law symbolizes the colonial power structure and the mechanism in which colonialism is being carried on. On August 15, 1942 Lord Linlingthow, the Viceroy of India, promulgated the Armed Forces Special Powers (Ordinance) to suppress the Quit India Movement by Mahatma Gandhi. During this, police stations were burned down as well as railway and telegraph lines which the British vision as designed to hamper their war effort against an impending Japanese invasion on the Burmese front. The AFPSA provides impunity such as – Section 4, allows any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces to arrest any person without a warrant. Additionally, if he feels that an absconder is hiding somewhere, he can destroy any structure without verification and use force even to kill. Under Section 6 of the Act, armed personnel cannot be challenged in the court of law for all these acts. Armed Forces have misused this section on various occasions. With no doubt one can say that this act is modelled along the Armed Forces Special Powers (Ordinance of 1942). But the irony is that the 1942 version was used to carry forward colonial oppression. However, in the post-colonial era with a change in the title, mostly it is being used to carry forward the repressive legacy in the biggest democracy in the world.
Human rights violations and AFSPA
AFSPA after being enforced in 1958, due to the extreme law and order situations has been incrementally applied. It has been also applied in Jammu and Kashmir. Over the years, various atrocities of armed forces through frequent raids, fake encounters, demolition of private property etc have made lives of people in the areas labelled as disturbed areas too disturbing and vulnerable. Real freedom seems to be too far for the people from these areas. Over the last 6 decades AFSPA has remained as a telling tale of agony. India even after absorbing the ideals of a democracy through adoption of its Constitution, has made a mockery of human rights through enactment of draconian laws like AFSPA. Since the law does not clearly define what is a peaceful gathering and a wild or berserk mob, and actions can be taken on grounds of suspicion, there is every possibility that even innocent individuals could be harassed or killed under AFSPA. What is more fearful and worrisome is that if an area is declared as “Disturbed Area” it cannot be challenged in the court of law. Right to life – a fundamental right under the constitution of India is violated by section 4(a) of the AFSPA, which grants the armed forces power to shoot to kill without regard to international human rights or the law restrictions on the use of lethal force. Lethal force is broadly permitted under the AFSPA if the target is part of an assembly of five or more persons, holding weapons, or “carrying things capable of being used as weapons”. However, the terms “assembly” and “weapon” are not defined. The act also allows ground of arbitrary arrests through section 4(c).
The areas under AFSPA have experienced a widespread human rights violations and abuses. Some of the cases where human rights have been grossly violated over the years are
- Rape, Brutal and Merciless Torture- The brutal and merciless torture that Thongjam Manoroma suffered at the hands of Assam Rifles came into the picture through the Judicial Inquiry commission report (after 10 years of her death. Manorama was found dead with a multiple gun shot injuries on her private parts after being picked up by “a strong- armed troops of 17th Assam Rifles” in the night between July 10-11, 2004 from her home in Imphal East District.
In Meghalaya Armed Forces have reportedly committed numerous atrocities against civilians in under the auspices of AFSPA. During Operation Birdie it is reported that many Khasi tribal women were reportedly raped. There were also reports of usage of women human shields by the Assam Riffles
An woman named Lianthangvuanga from Mizoram was reportedly raped by five soldiers. While she escaped from it, she had to bear the trauma of her father being tortured by the army who died later due to the injuries.
- Sexual Violence against children: A 12-year-old girl was raped by a member of the Assam Rifles in Karbi Anglong on February 7, 2005. Medical tests confirmed that the abuse was sustained after the child was sedated with sleeping tablets. Fearing a backlash against the military and the AFSPA similar to that which followed the death of Manorama Devi in Manipur, police arrested the accused and his accomplices.
- Tire bursting lead to death of civilians- In 1995 in Kohima city Indian soldiers began shooting civilians after mistaking the sound of tire bursting for a bomb attack. During this episode of shooting seven civilians which included girls age three and eight were killed
AFSPA has been a tool of arbitrary detention, torture and the killing of peaceful critics. With the rights to remedy also been violated under AFPSA, a shield is being provided to the armed force personnels who are implicated in serious abuses. This really makes one to think- “Will Jayanta Bora get Justice”. AFSPA has been facilitating violation of the right to be free of torture, cruel or degrading treatment. Even the ill treatment of the armed forces during the interrogation in army barracks cannot be questioned.
The author has studied MA in Social Work in Tata Institute of Social Sciences, Mumbai and presently working with Public Health Resource Society, Odisha. Views expressed are personal.