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No longer anonymous

The AFSPA was enacted in 1958 to contain secessionist violence but now, perhaps it is perpetuating it. Repeal cannot be considered without running security risks. But a solution may lie hidden in the Act’s history. Pratik Kanjilal writes.

india Updated: Jul 02, 2010 22:11 IST

The cycle of violence and unrest continues in regions where the Armed Forces Special Powers Act (AFSPA) is applied and after so many decades, it’s become hard to tell cause from effect. The Manipur blockade finally ended in mid-June. But within a fortnight, Kashmir was under curfew after children were shot during violent protests — paradoxically, while the state was at its healthiest, under a popular government and with a growing economy. The AFSPA was enacted in 1958 to contain secessionist violence but now, perhaps it is perpetuating it. Repeal cannot be considered without running security risks. But a solution may lie hidden in the Act’s history.

It’s easy to understand why the Act poisons the air. Imagine that you are unlucky enough to live in a district where it’s in force. The law empowers soldiers to kick down your front door on suspicion and without a warrant, break open your almirahs and cabinets, ransack your home and apprehend anyone they see fit. If you resist, the law empowers them to shoot you in the head and, for good measure, flatten your home on the way out, without fear of prosecution. Even if none of these misfortunes visit you, the constant threat of violence could make you actively dislike a government that sanctions arbitrary impunity.

In response to the clamour to repeal the Act, the forces protest that they would be unable to function in counter-insurgency roles without legal immunity. This is absolutely true. An error of judgement, which causes harm to civilians might invite only censure in wartime, but could attract imprisonment or a death sentence in domestic counter-insurgency operation if a criminal court had jurisdiction. Servicemen can’t be expected to routinely run that risk.

At the same time, the Act cannot be defended as a “pious document”, as Chief of the Army’s Northern Command Lieutenant General B.S. Jaswal has done. The reverential language of the ashram and the cloister has no utility in describing a black Act which cunningly perverted democracy. To see how, let’s look at its antecedents.

The AFSPA is a direct descendant of the Armed Forces (Special Powers) Ordinance of 1942, promulgated during the freedom struggle to contain nationalist agitations, which impeded the British war effort. The Ordinance remains in force in Bangladesh, which has an unfortunate history of martial law. And it has a distant relation in roughly similar civil legislation imposed on Northern Ireland in 1922 to suppress the Irish partition troubles.

But there was a crucial difference between the AFSPA, the brainchild of G.B. Pant, then home minister, and its parent Ordinance. The latter required an officer to sanction the use of lethal force in writing. Then our politicians did what they excel in — they removed accountability. The AFSPA quietly dropped this requirement, anonymising State violence in disturbed areas. It’s shocking, but the colonial law was more transparent than derivative legislation in free India. The government is now thinking of amending the AFSPA and exposing servicemen guilty of excesses to criminal proceedings. But it’s not clear how they can be singled out when their actions remain unsigned and anonymous. For foolproof accountability, the clause in the Raj Ordinance, which required commanders to sanction the use of lethal force in writing, should be reinstated.

Pratik Kanjilal is publisher of The Little Magazine n pratik@littlemag.com The views expressed by the author are personal