Law that should go: Supreme Court challenges Afspa’s ‘license to kill’
The Supreme Court’s stinging observations on the misuse of Armed Forces Special Powers Act (Afspa) again triggers a debate on the shocking lack of provisions to safeguard human rights, and the excessive force used by the armed forces under the protective umbrella of this draconian law. In particular, the SC condemned the alarming atrocities in Manipur under garb of Afspa, and has ordered an inquiry into such violations. Indeed, this is not the first time that the Supreme Court has expressed its displeasure on Afspa, but this time it has decided to act, by ordering inquires in complaints of fake encounters and the excessive use of force. The Court’s intervention also brings into focus the toothless existence of organizations such as the National Human Rights Commission.
While most people in the country’s heartland are unaware of how Afspa and other draconian laws affect daily lives, residents of Kashmir and the Northeastern States have been deeply resentful about them.
Afspa, in which citizens belonging to specific geographic areas are kept out of ordinarily applicable democratic rights and privileges, has colonial origins in the Armed Forces (Special Powers) Ordinance in 1942. It was first implemented in the Northeast, then Punjab and finally in Kashmir in 1990. Indeed, Afspa is not the only such legislation that gives draconian powers to the armed forces. The Disturbed Areas Act (DAA) and the Public Safety Act (PSA), both of which apply in parts of J&K, also belong to the same category.
In the past, various inquiries and Commissions have called upon governments to reconsider such laws. The Justice Jeevan Reddy Committee, set up in 2004 after the killing of Thangjam Manorama by Assam Rifles troops, recommended repeal of the law. The Justice JS Verma committee report on sexual crimes in India (2010) recommended Afspa’s review. The government-appointed group of interlocutors on J&K recommended gradually withdrawal of Afspa and DAA from J&K. Various non-governmental organisations, including Amnesty International, have also called for the law’s removal.
During the UPA rule, there were intense debates within the government on continuing with the law. Indeed, both Home Minister P Chidambaram and Prime Minister Manmohan Singh were in favour of gradually doing away with it, but the armed forces and the Defence Minister objected to it.
The Supreme Court’s observations have undeniable implications for the sustainability of the law in J&K as well. The Union government led by the BJP and the armed forces would now need to respond to the harsh indictment of the Court. The PDP, whose government is in power in the state, would need to prevail upon its coalition partner, the BJP, to repeal or amend the law, and would have to at least remove draconian state laws such as the PSA and DAA. The recent terror attacks in Kashmir may however hamper this process. And yet, if the long-term goal is to contain, pacify and end the country’s many domestic insurgencies, New Delhi will have to be more sensitive towards the demands of the local population. If it is not practical to remove these laws entirely at this point, why not begin by a partial withdrawal or even amending some of their sections?
(Happymon Jacob is associate professor, SIS, JNU. The views expressed are personal.)