Reconciliation for peace: The government must Improve its stance on AFSPA
Beyond committing to ensuring justice for the victims, the Union government must now improve its stance on AFSPA to demonstrate that it is truly committed to working towards peace in the region.
The recent move to withdraw the application of the Armed Forces Special Powers Act (“AFSPA” or “the Act”) in certain areas from the states of Assam, Manipur, and Nagaland is a step in the right direction. The Union government must now improve its stance on AFSPA by committing to additional steps which will ensure speedy justice to the victims of crimes that have been committed under the Act. These are steps that are necessary since the reconciliation of wrongs that have been committed under AFSPA must be seen as part of achieving enduring peace in the region.
Since its enactment, the provisions of AFSPA have been misused to commit some of the most horrific human rights abuses. In the past, such abuses have been considered crimes under Indian law, but personnel who commit these crimes are rarely made to stand trial in a court of law. The reason why this takes place is because of the Union government’s dismal track record in approving prosecution sanction (or “sanction”) which were sought to prosecute the accused military personnel. These sanctions refer to the requirement of the Union government’s permission before a court can prosecute military personnel who are accused of crimes while on duty in areas where AFSPA is in force. While in some cases, the judiciary has expressed its unwillingness to require such sanction in crimes dealing with rape or murder, this position has not been consistently applied by courts, resulting in a general requirement for sanction.
The Union government has a poor track record when it comes to approving requests for sanction to prosecute accused personnel. According to the Union government's statement in Parliament in 2018, it declined all requests for sanction sought between 2001 and 2018 from Jammu and Kashmir, where a separate but identical AFSPA legislation is in place.
In other instances, investigations including those monitored by the Supreme Court have been conveniently stalled due to delays in approving sanction. For families of the victims of human rights abuses committed under AFSPA, the delay and denial of sanction is a major hurdle in ensuring justice. To demonstrate such hurdles, we can refer to a case from 2019 in which several personnel of the Indian Army were not put on trial before a court in Manipur for their involvement in the extra-judicial execution of a civilian, because the investigating agency did not receive sanction to prosecute them. In this scenario, according to United Nations special rapporteurs, an extra-judicial execution is termed as the “deliberate killing of individuals outside of any legal framework”, and these constitute a violation of domestic Indian law and international human rights law.
If you happen to ask a person who has spent their childhood in areas where AFSPA has been imposed, you’re likely to receive a response that could chill your spine. Whether it is a story about rape, the mysterious disappearance of people while in custody, or an extra-judicial execution, anyone who has grown up in these areas will have a story to tell you. The historic injustices committed by military personnel in these areas continue to instil a collective sense of loss and anger in us. For these reasons, and many more, it is important for the Union Government to reconcile the wrongs which have been committed under AFSPA.
To aid this reconciliation, as first steps, it is critical that the Union government takes action to ensure that all pending prosecution sanctions are approved. This will permit the speedy commencement of investigations and trials in cases pending before judicial courts. In addition to this, the Union government must make actionable commitments that demonstrate that it is ready to accept that AFPSA’s current legal provisions require reform. These include, but are not limited to, public and transparent consultations with civil society organisations and international bodies since these can offer constructive feedback on the reforms which are required.
Beyond committing to ensuring justice for the victims, these steps are important if the Union government wants to demonstrate that it is truly committed to working towards peace in the region.
Jade Lyngdoh is a Facebook India Tech Scholar at National Law University, Jodhpur
The views expressed are personal