Enacted in 1958 to deal with the Naga uprising in the then composite state of Assam, the Armed Forces (Special Powers) Act (AFSPA) was reviewed by the Justice BP Jeevan Reddy Committee in 2005, which recommended that it be scrapped.
The Reddy report remains untabled in Parliament, despite the recent outcry, triggered by the Justice Verma Committee’s view that the Act needs to be reviewed (in the light of sexual offences committed by men in uniform). Three reviews including the Reddy Committee recommended repeal. AFSPA contains six clauses; the critical ones permit security forces to open fire and even kill upon suspicion and that criminal prosecution of soldiers involved in such acts will need the Centre’s sanction. New Delhi hasn’t given a single sanction in over half a century.
In my view, it creates four degrees of difference, of separation, among all Indians, enshrining discrimination into law and the system.
First of all, it creates a category which is above the law and thus protected by AFSPA, providing nothing short of absolute immunity. These are the members of the security forces who are covered by the Act.
The second category comprises those who are vulnerable to the Act because they are completely unprotected by it and at the mercy of those who are protected by it, i.e. the ‘security forces’. Of course, ironically, because of the brutality of the experience of this particular law, ordinary people are lumped with those who are truly anti-State — insurgents, militants and armed groups.
These organisations and their members are supposed to be the principal targets of such a law. They are by no measure innocents or part of the general category of citizenship.
The third group comprises those who are completely unaffected by the Act — for example, people living in those parts of the country such as Delhi where it is not in use, i.e. outside of Assam, Manipur, Nagaland and Jammu and Kashmir. The border belts of Arunachal Pradesh and Meghalaya, as well as Tripura are where it is used although none of these states have a ‘live’ insurgency.
One of the reasons why the Marxists roared their way back to power in Tripura’s election was surely because they had resolved the insurgency situation. It is a blessing that a huge majority of the population of India is untouched by it, although Punjab had a sharp and brutal tryst with it during the pro-separatist movement of the 1980s and 1990s before the police and local politicians moved to take charge of the situation, sending the army back to the barracks — where it belongs in what finance minister P Chidambaram defined the other day as a ‘civilian government’.
There is a fourth degree of citizenship, which not many may have considered but which is increasingly becoming a reality in the states where AFSPA is in place — anchoring its arbitrariness and anti-democratic core.
The police forces, especially those in Manipur (where police commandos strike as much fear as the armed forces) behave as if they are protected by the law and enjoy immunity under it. Indeed, if there is one good reason why AFSPA should be repealed, apart from all the reasons cited by human rights campaigners, it is this: the resultant atmosphere of immeasurable impunity which comes with a sense of immunity that has transcended the law and infected the ‘civilian’ administration.
The centrality of the human rights campaign against AFSPA has been built around questioning the right and capacity of soldiers to shoot and kill suspects without being prosecuted in a civilian court of law.
Over 55 years of use and misuse in the North-east has bred such a climate of impunity that law enforcers have become the primary law breakers. That impunity appears to have infected the political and administrative structure.
The recent arrest of the scion of a powerful Manipuri politician in a case where an army colonel was arrested with a huge consignment of drugs headed for Myanmar underscores the social and political disaster overwhelming the region. The money trail leads to new oligarchies, created by the protective presence of this monstrous law.
While the Supreme Court said in 1997 that the law was ‘constitutional’ and as per due process (Justice JS Verma, whose committee has drawn such support on issues of sexual assault, was Chief Justice at the time), it does not mean that the ‘justness’ of the law was upheld. A law can be constitutional but it can also be unjust. One is a moral dimension, the other is a technicality. That is the case with AFSPA.
The current law minister Ashwani Kumar has erred by defending the Centre’s decision not to move sexual assault and rape out of the purview of the protection of AFSPA. In an interview, he said that AFSPA applied in “conflict zones and difficult circumstances where the onus and burden of proof was not easy to resolve; therefore, the opinion of the defence establishment and intelligence agencies was critical in such matters”.
Is the Government of India saying that it is necessary to protect specific acts of omission and commission by its armed forces because it cannot trust the civilian process? The Air Force correctly sends such cases to the civil courts. So why should the Army be any different?
Gopal Subramaniam, a member of the Justice Verma Committee, took a view which won widespread support, when he said that “sexual offences by armed forces and uniformed men in conflict areas should be brought under ordinary criminal law.” After all, even the Supreme Court has declared that such acts cannot be defended as being ‘in the line of duty’.
Sanjoy Hazarika is Founder-Director of the Centre for North East Studies at Jamia Millia Islamia, New Delhi. The views expressed by the author are personal.