The search for the real problem behind the AFSPA. Those who believe the West to be the hand behind all inhumane actions are mistaken. The World Wars, the Cold War, ...

The search for the real problem behind the AFSPA.

Those who believe the West to be the hand behind all inhumane actions are mistaken. The World Wars, the Cold War,  colonialism and now the War on Terror were all based on a certain mindset. The latter in particular is hinged on the Authorization for the Use of Military Force (AUMF).  Imposed after the September 11th attacks, AUMF allows the US and its coalition partners to pursue terrorists globally to safeguard their national security. This self defense excuse has taken the war beyond America to Iraq, Afghanistan and most recently to Pakistan. With over250,000 military and civilian lives lost, the war has become an extremely contentious issue.

The tyrannical act of AUMF has an evil eastern twin in India called the Armed Forces Special Powers Act (AFSPA). It has been dubbed as the “draconian act” or “black law” that bestows extraordinary powers to the military in combating terrorism. The act traces its roots back to the Colonial rulers who used it to quell the Quit India movement in 1942. Sixteen years later, the Indian government faced its first separatist movement in Nagaland. In their struggle for independence, many residents of Naga Hill were killed from the atrocities of the Indian Army. This incident spurred Nehru to approve the act which would come to haunt many future generations.

A state of emergency can be declared and AFSPA can be imposed in an area by the state government when the unrest becomes too difficult for the local police to handle. AFSPA gives military forces legal immunity during their operations in “disturbed areas”. They are permitted to make arrests, search and seize properties and vehicles without warrants, use force, even to the point of causing death, against any person violating laws or possessing weapons. It effectively makes troops all-powerful and untouchable by justice.  The act was initially imposed in the seven north eastern provinces (Assam, Manipur and Nagaland, Arunachal Pradesh, Meghalaya, Mizoram and Tripura) but later on included the State of Jammu and Kashmir when the controversy around the 1987 elections led to an uprising.

Both domestic and international human rights bastions have shown dissent regarding this act. A police report last year found 2,730 bodies dumped into unmarked graves at 38 sites in north Kashmir from whom at least 574 were identified as the bodies of local Kashmiris. Hundreds of cases of physical and sexual abuse like the murder of Manoram Devi in 2004 or the Kohima killings in 1995 attest to the brutality of the act. Political actors like former Defense Minister George Fernandes and former Home Secretary GK Pillai have joined hands with social activists over the abolition of this act. Irom Sharmila has emerged as the most prominent social activist. She has carried out a hunger fast since the day innocent lives travelling in a bus were murdered in 2000. Her movement has gathered global support too. UNHCR, other UN member states and the UN High Commissioner for Human Rights Navanethem Pillay have urged to repeal this act. Last week, UN Rapporteur Hynes demanded the repeal of the act. Non-governmental organizations like Amnesty International and Human Rights Watch have condemned it citing it to be the cause of numerous human rights violations.

Many defense analysts would agree that under a state of emergency, it is normal to suspend some rights of the masses. The catch is the duration of the emergency.  AFSPA has been declared constitutional by the Supreme Court. Its extreme nature is meant as an exception to constitution. Unfortunately, it has lasted for over 50 years and continues to be misused by the government. If the situation is so unstable in the disturbed areas alternative arrangements should have been made.

If for the moment we do accept the desirability of AFSPA, we certainly cannot accept the infringement of human rights that have resulted from it. The International Covenant on Civil and Political Rights (ICCPR) specifically points out that such an act should not be inconsistent with other international laws and must not discriminate on the basis of race, color, sex, language, religion or social origin. Amongst other violations, AFSPA violates Article 6 guaranteeing the right of life and Article 7 which prohibits torture. Sections of AFSPA also violate the Universal Declaration of Human Rights which upholds human life, liberty and security.

AFSPA even contravenes the UN Code of Conduct for Law Enforcement Individuals. According to Article 3, force may only be used when “strictly necessary” and adequate to the performance of their duties. The Code also prohibits the use of firearms unless the offender offers armed resistance and less extreme measures are futile. AFSPA, however, allows the military to use any amount of force against people and their properties who may not even pose a threat. Moreover, these exceptional circumstances are not ground for carrying out torturous acts against the locals.  The immunity offered to soldiers in AFSPA does exactly the opposite. The Body of Principles on Detention or Imprisonment necessitates that the person being arrested is informed of this arrest and the charges imposed on him which is not required under AFSPA.

The uproar from the rape and murder of a woman in Manipur prompted the government to initiate a judicial investigation under Justice Reddy. The commission called for the immediate repeal of the act. Other aspects of the report have to be taken with a pinch of salt though.  It also recommended the incorporation of some parts of the AFSPA in the Unlawful Activities Act, applicable to the entire nation. The later is more comprehensive for it serves to ban terrorist organizations, take actions against terrorist activities and investigate the trial and punishment of the accused. It maybe beneficial in cases like removing the discrimination felt by the north-eastern provinces but in reality, AFSPA would continue under a new name.

Despite clear cut recommendations from the commission, the Home Ministry is pursuing amendments to the act and only when the UN Rapporteur disapproved of the act recently. The proposed amendments seek to make the act more “humane” and await the approval of the Parliament. Officials speculate the amendments would include make warrants necessary, prohibit forces from killing opponents and establishing a grievance cell.

The Indian Army has strongly defended the act without which they feel the troops will not be able to carry out their missions properly. In the case of J&K, the threat posed from Pakistan is offered as a justification. The militants in the region would not enter Indian Territory in the first place if the borders were properly secure, a place where the army is supposed to be present. The threat seems meaningless after Pakistan offered to demilitarize the region. Unfortunately India did not return the favor.

Many would argue that extreme conditions demand extreme measures. The army feels it is the least that could be done for the troops who fight in those uncertain conditions to restore stability and governance in the disturbed area. But the real issue arises when one searches for an appropriate duration of the emergency. Even after allowing room for the subjectivity of a crisis, a duration of 50 years is unbelievable. Wars have even lasted less than that. Either the army is inept at controlling dissidents or the civil government is hopeless at negotiating with the opposition. And say we do accept this long lasting state of emergency, then why is it that the act has not been removed even after violence has reduced? One reason could be the political aspirations of the local leaders. It has been noted that they manipulate the act to garner electoral support but after being sworn into office, like to rely on the army to handle law and order situations.

As far as human rights violations are concerned, the army has a set of mechanisms to scrutinize cases. Some culprits have been caught and justice has been delivered. But at the end of the day, given the “disturbed” conditions of the state, it is hardly possible to monitor such cases let alone understand the circumstances that led to the crime. Anti-AFSPA movements would not have escalated to a global protest if victims of the crimes had been receiving justice.

Pulling the military into civilian matters for an indefinite time with special powers spells destruction for both the military and the civil government. The army is designed to protect a nation from external threats whereas the police and judiciary are responsible for internal conflicts. Only in rare cases like natural disasters are the military called in to intervene. Dragging the military in a long term emergency situation chips away the character of the troops and makes them unnecessarily open to critique in matters which do not come under its jurisdiction in the first place. On the other hand, it reflects the weak points of the civil government which has handed a chunk of its duties to the army, instead of using them only to assist them in governance. Behind the curtains of AFSPA, we see the government’s impulse to adopt a military solution to crises instead of choosing dialogue for long lasting peace. They need to stop hiding behind the army, insurgents and external threats. A failure to reconcile indicates the government needs to work on itself before it can move on to managing other people and institutions.

Tacstrat Analysis