AFSPA

The article has been written by Saurav Narayan.

It has been published by Rachit Garg.

Introduction

At 3.30 p.m. on Saturday, December 4, 2021, eight mining workers from the Naginimora coal mine in the Thiru Valley of Nagaland’s Mon district were hurrying home after a long day’s labour. As their group descended from the hill at the Assam Rifles camp just ahead of Oting village, the 21st Para Commando opened fire indiscriminately with machine guns from two sides, killing six of them and badly injuring the remaining two. Furious locals rushed the soldiers as they were bringing the dead bodies down to another vehicle and wiping blood stains from the ground, and an army truck was set on fire. The army opened fire again, killing one person. The public outcry then went far and wide, and the furious villagers attacked the army detachment that had slaughtered their innocent companions for no apparent reason. The soldiers opened fire on the gathering once more, killing seven more civilians. According to the Army, they had “credible intelligence” that terrorists were planning an attack. As a result, a total of 15 innocent workers were killed in cold blood. It was evident that the soldiers did not issue any warning before firing indiscriminately at that speed.

The painful story of the citizens of our beautiful, picturesque 7 states of the Northeast facing government repression is 63 years old. This law gives armed security forces the authority to arbitrarily repress public sentiments under military boots by taking away the liberties provided by the Constitution. Very few countries have such a severe legislation that violently suppresses democratic rights around the world and leaves the underprivileged masses at the mercy of armed forces.

‘A legislation conferring extraordinary powers to armed security forces in the troubled states of the country (Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura),’ read the first two sentences of this statute. In the North-Eastern states, violence has become a way of life. The government administration has been unable to keep it under control.’

In this article, the author has discussed  the history, critical analysis of the provisions of AFSPA and the situation in areas under AFSPA which is followed by a conclusion.

History of AFSPA 

The fight to repeal the Armed Forces Special Powers Act has been long and arduous. Lord Linlithgow, India’s viceroy, issued the Armed Forces Special Powers (Ordinance) on August 15, 1942, in response to Mahatma Gandhi’s week-long Quit India Movement. Most leaders of the Indian National Congress, including Gandhi and Jawaharlal Nehru, were imprisoned. Indian protesters set fire to police stations, railway and telegraph lines, which the British interpreted as an attempt to sabotage the war effort on the Burmese front against an expected Japanese invasion. Linlithgow retaliated with brutality, killing 2,500 Indian demonstrators in police killings, arresting tens of thousands, torching insurgent villages, and flogging and torturing protesters.

In August 1947, India and Pakistan gained independence from British rule, which was accompanied by genocidal bloodshed and mass displacement of Hindus and Sikhs from Pakistan and Muslims from India. Jawaharlal Nehru, India’s first prime minister, faced his first insurgency in the Naga areas of Assam, near the Burmese border, just a few years after independence. A majority of Nagas had been converted to Christianity by Baptist missionaries, and the Naga National Council had arisen as a well-educated leadership. Gandhi theoretically explored Naga independence during meetings with Indian officials, but Nehru angrily rejected the proposal and instead promised the Nagas autonomy within India.

The Nagas launched an insurrection for independence in 1954. Thousands of Indian army soldiers and paramilitary forces from the Assam Rifles were dispatched to quell the insurrection. A vicious circle of violence ensued. Nehru’s government approved the Armed Forces Special Powers Act (1958) in the Indian parliament to better arm his counterinsurgents and provide them with legal protection. Only a few lawmakers spoke out against the bill. “We want India to be free.” “However, we do not want a free India with barbed wire and concentration camps, where sergeants can shoot any individual on sight,” Surendra Mohanty, a dissident member of the Orissa parliament, told the assembly.

Now, Prime Minister Nehru was echoing Churchill and Linlithgow, who had used violence and the Armed Forces Special Powers Ordinance to destroy the Quit India Movement. “There can be no functioning government there.” “Wherever there is violence, the government must deal with it, whatever the cause may be,” Nehru addressed the Indian parliament. Nehru’s soldiers in Nagaland echoed the British forces’ savagery in India. Gavin Young, a correspondent for The Observer who travelled throughout Nagaland in 1961, observed, “The stories of destroyed rice stores and residences seemed endless.” “Individuals told how they had been beaten and tied up for hours without water; how they had been bound and hung downwards from beams to be flogged; how sons, brothers, and fathers had been bayoneted to death.”

The anger in Nehru’s India’s frontiers wasn’t restricted to Naga areas. In the former princely state of Manipur, which had joined with India in 1949, signs of instability and disenchantment with being administered by a bureaucrat from New Delhi were mounting. The United National Liberation Front, a separatist militant group demanding independence from India, was founded in Manipur in 1964, the year of Nehru’s death. In response to the centrifugal pull, India granted Manipur statehood in 1972, bringing with it an elected local government and more financial resources.

Some Manipuri rebels proceeded to Lhasa a few years later, inspired by Maoist ideology, and created the People’s Liberation Army, an insurgent force that sought Manipuri independence with Chinese help. A number of smaller insurgent factions arose. According to the South Asian Terrorism Portal, the number of people killed in acts of violence increased from two in 1978 to 51 in 1981. In late 1980, India declared Manipur a “disturbed area” and enacted the Armed Forces Special Powers Act. Since then, a vicious cycle of insurgency and warfare has continued, killing thousands of lives.

Critical analysis of the provisions pf this Act Of Armed Forces Special Powers Act (AFSPA), 1958

AFSPA applies automatically if an area is declared a disturbed area by the Governor or the Central Government, according to Section 3 of the Act. The problem with this section is that there is no transparent mechanism to ensure what factors led such officials to declare a region to be a disturbed area. As a result, the power to declare a region to be a disturbed area is highly problematic and has mostly been used by the ruling party to further its own political interests and agenda, facilitating fascist violence in those regions if not directly participating in human rights violations.

Sections 4 and 6 are the most crucial and contentious, as they go against the Constitution’s fundamental rights, which will be discussed further.

Use of Force: 

Section 4(a): “if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances”

This section is problematic for several reasons, including the fact that it gives the authority to kill, fire on sight, or use force against anyone in a “disturbed territory.”

This paragraph directly contradicts Article 21 of the Indian Constitution, which is the constitution’s heart and spirit. Even in times of emergency, the right to life and liberty is so sacred and inviolable that it cannot be taken away.

However, under this provision, paramilitary forces are given the authority to murder or shoot anyone (rebel forces or civilians) at their discretion, which is a flagrant violation of Article 21.

The second limb of this confusing provision prohibits groups of more than 5 persons from assembling. This section of the provision is structured similarly to Section 129 of the CrPC, 1973, although the AFSPA phrase is filled with ambiguity and flaws. To begin with, it fails to distinguish between a peaceful assembly of innocent individuals (5 or more) and a violent rebel group.

This basically means that if 5 or more innocent individuals gather in this area and have no role in inciting a mob or engaging in militant actions, paramilitary troops can be deployed as a necessary way of controlling the situation. This effectively means that, rather than bringing peace and tranquility in the region, the paramilitary forces are viewed as a symbol of hatred and oppression by the civilian population.

Furthermore, the provision of the CrPC does not violate Article 21 of the Constitution because it contains certain checks and balances, namely, such a power can only be exercised by a police officer not below the rank of sub inspector using civil force not amounting to causing death, whereas this section empowers even a non-commissioned officer to use force to the point of causing death.

Power of arrest & detention

Section 4(c):arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest”

This provision is arbitrary once again, and it amounts to a flagrant violation of the Indian constitution. The authority of arrest and detention is governed by Article 22 of the Indian Constitution, as well as the provisions of the CrPC in specific.

The main goal is to ensure that the state does not arbitrarily employ its power of arrest and detention, and so these rules serve as a check and balance against gross abuse of authority in this area. In the case of DK Basu v State of West Bengal, the procedural safeguards that the police must follow when exercising their authority of arrest and detention were further explained.

When it comes to this section of the AFSPA, however, procedural safeguards are suspended. The authority of arrest and imprisonment granted under this clause is unrestricted, allowing for the greatest amount of arbitrariness, as seen by the uncountable cases of grave human rights violations in the region. Furthermore, the provision’s authority of search and seizure without a warrant allows for a great deal of extreme arbitrariness.

Time limit

Section 5: “Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay.

The time limit—”least possible delay”—is an ambiguous expression in this section. An accused must be brought by the Magistrate within 24 hours under Section 130 of the CrPC, 1973, as well as the fundamental provision of the right to life and liberty under Article 21.  This is a mandatory procedure to avoid unnecessary torture and custodial violence, but it distorts that goal because there is no straitjacket rule to define what constitutes “least possible delay.”

Joginder Kumar v. State of Uttar Pradesh, it was held that if the accused’s investigation could not be finished within 24 hours, the magistrate’s consent or authorization was required before the accused could be taken into police or judicial custody.

The court went on to say that while judicial custody can be granted for up to 90 days, the accused can be released on bond if the inquiry is not completed during that time.

However, under AFSPA, an accused does not have access to these procedural safeguards. This is yet another example of the law’s double standards (in this case, the application of CrPC procedural rules is limited or suspended in areas where AFSPA is implemented, whereas such provisions are uniformly applied throughout the rest of the country), and thus such a provision is also in violation of Art. 14 of the Constitution.

Right to immunity 

Section 6No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

This clause makes a mockery of human rights once again. It is likely the most draconian provision in the section, as it grants blanket immunity to the military forces, directly violating Article 32 of the Constitution.

situation in areas under AFSPA

Rape is embedded in the patriarchal construction of a woman’s body as a symbol of the enemy’s land or “property” that must be violated in war zones. The frequency of this phenomenon may be traced back to early records in the Torah, Homer, the Anglo-Saxon chronicles, and mythological events like the Sabine women’s rape. Mass rape has been documented in several of history’s most well-known wars. Rape is well reported in the Bible, Anglo-Saxon and Chinese records, medieval European combat during the Crusades, Alexander’s invasion of Prussia, Viking plundering, Alaric’s conquest of Rome, ancient Greek tribal wars, and so on. Rape is also a type of dominance exercised by one society or group over another by doing violent crimes against the women of the other community, who are expected to be protected by their men folks; raping them implies that their men are not brave. There is also the idea of ‘colonizing’ a place via rape or female impregnation. Many post-war societies resort to mass abortion as a means of eradicating it, which is essentially another form of violence with a different motivation. For centuries, the international community had ignored this issue, until the International Crime Tribunal (ICT) for genocides in Rwanda, established by the United Nations (UN), reached a historic judgment in 1998, establishing rape as a crime of genocide under international law.

To be fair, not all rapists choose to commit this crime; others are forced to do so by their bosses. This has been confirmed by certain captive rapists who have been interviewed: Borislaw Herek, a Sarajevo resident who acknowledged raping and shooting three unarmed women, claimed that if he hadn’t done it, his superiors would have sent him to the “worst frontlines” or jail, and taken away the Muslim house that had been provided to him. Many soldiers from West Pakistan also saved the lives of women from East Pakistan during the Bangladesh liberation war in 1971.

In India, rape during any sort of mass conflict has a long history. In modern times, 75,000 women are believed to have been abducted and raped by men of different religions, as well as by men of their own religion, during the Partition-related violence in 1947, which began as ethnic cleansing. Women were butchered by their family members to preserve the ‘honour’ of the person or group. Women who had been raped were either slain by their perpetrators or by family members, or they took their own lives. 90 Sikh women and children committed suicide in Thoha Khalsa, Rawalpindi district. Even when people had settled down in their separate zones, the inhumanity continued. Rapes against women from the ‘other’ community have occurred throughout all communal disturbances since 1947. Surprisingly, the state or community has never filed a complaint against rape perpetrators because doing so would characterize the individual or group as “weak” in comparison to the competing group. Aside from that, there have been instances where security agents have committed rape to establish the Indian state’s dominance over the aggrieved community. The Central Reserve Police Force (CRPF) raped tribal women from Santhal Pargana in March 1979 to emasculate an ongoing campaign to recapture tribal land led by the Jharkhand Mukti Morcha (JMM)—then a tiny political organization.

Rape, security, and patriarchy are all interwoven in locations where AFSPA is enforced. Because the Indian state defines rape to protect its patriarchal interests, offenders in uniform are neither prosecuted nor punished. In AFSPA-affected areas, as in other parts of India, the burden of proof for rape is with the victim, not the accused; but, unlike in other sections, the accuser or victim can be charged with being a foreign agent, a militant, or a supporter of a terrorist group. As a result, she may be killed, as in the case of Thangjam Manorama’s rape. The Assam Rifles used false evidence, such as a grenade and other objects, to prove that she was a member of a militant group. The death of women after rape is sometimes stated as a means of erasing evidence, but it is more than that: it is a symbol of societal cultural brutality.

Situation in Kashmir 

After AFSPA was enacted in the Kashmir Valley in 1991, harassment of women during army crackdowns was considered “routine.” While the army did not demand Kashmiri women to leave their homes during raids, they did so out of fear of harassment and because they did not want to be alone inside when security personnel invaded their homes. Security officers have been accused of leering, extorting, initiating unwanted physical contact, psychologically torturing, and sexually assaulting girls/minors and women during search operations. Seven women were allegedly raped in Wavoosa in 1997 during a ‘regular cordon and search operation.’ Between 23 and 100 people were allegedly raped by the 4th Rajputana Rifles unit at Kunan Poshpora in 1991, including minors, the elderly, pregnant women, and those with disabilities. Apart from these two cases, the Kashmir Valley has had numerous other infamous rape cases, including Chhanpora and Pazipora (1990), Chak Saidpora (1992), Haran (1992), Theno Budapathary Kangan (1994), Bihota (2001), Handwara (2004), and others (Kazi, 2009).

The state’s attempt to secure Kashmir, which has become synonymous with bodily insecurity for Kashmiri women, highlights the irony and enduring contradiction in the state’s attempt to secure Kashmir—a contradiction that undermines democracy, institutional integrity, and state legitimacy every day, every year. ‘Rape in Kashmir is not the consequence of a few irresponsible soldiers, but rather an active plan of Indian forces to humiliate, intimidate, and demoralise the Kashmiri people,’ Professor William Baker said in his statement before the 52nd UN Commission on Human Rights. In response to a query posed in the Legislative Assembly in 2013, the then Chief Minister of J&K, Omar Abdullah, stated that more than 5,000 cases of rape had been documented since 1989. In just one year, 70 incidences of sexual violence against security personnel were reported.

Women in the Valley experience a variety of restrictions on their apparel and movements because of the current situation, and they are denied many of their natural and civil-political rights. Marriage age has decreased to 14–15 years, compared to 21–22 years prior to 1991. Because it is impossible for a girl to marry after she has been raped, parents are eager to marry off their daughters at a young age.

Situation in northeast

The North-East is the other region with similar AFSPA experience. In contrast to the ongoing conflicts in Manipur and Nagaland, which are cloaked in mystery, the Kashmir Valley has the benefit of being a disputed territory between India and Pakistan over which wars have been fought. As a result, it receives frequent media coverage. The British colonial authority designated the North-East as a border territory. Purvanchal was later endorsed and preserved by the Indian state under the ‘native’ lexicon. The North-East is now a distinct (or, more accurately, odd) ghettoized entity.

In contrast to the Kashmir Valley, the majority of rape cases in this region are unknown to the rest of the world. Thangjam Manorama’s case was the only one that drew the attention of civil society. Three Assam Rifles personnel abducted her from her home in the early hours of July 10, 2004. Her body was discovered 4 kilometres from her home, displaying evidence of torture and rape, as well as bullet wounds, a few hours later as dawn broke. This episode gained national attention because, in response to the rape and murder, some 30 middle-aged to elderly women came out and stood naked in front of the Assam Rifles headquarters in Kangla, Manipur, on July 15, 2004. They carried banners that read, among other things, “Indian Army Rape Us,” “Indian Army Take Our Flesh,” and so on. The Manipur government established the Justice Upendra Commission to investigate her death as the protests grew louder. Following a barrage of concerns from human rights organisations, the Indian government established the Justice Jeevan Reddy Committee, which was charged with examining the AFSPA’s utility. It suggested that the Act be repealed. The AFSPA, on the other hand, has remained intact and operational. In April 2015, troops were accused of raping a 13-year-old girl and sexually assaulting her mother and grandmother, who attempted to save her. This occurrence occurred in Assam’s Karbi Anglong district.

A panel of serving and retired judges from Manipur’s district courts published a report on incidents that occurred between 2004 and 2008. Human rights groups have renewed their calls for a special investigative team to look into the over 1,700 extrajudicial executions that have occurred in Manipur over the past 35 years, following the submission of one instance to the Supreme Court by the Manipur government. The Report Says “Crimes against women, more particularly relating to sexual harassment committed by armed forces, are now increasing in some states like ours. They (armed forces) think themselves placed at the elevated status of impunity by the legislation and think wrongly they are given license to do whatever they like.”

The rape of a 15-year-old schoolgirl by two army officers on 4 October 2004 was confirmed by Manoj Kumar Singh, District Judge of Imphal East, after an investigation. On the same day, she committed suicide. Amina, a young mother who was shot by CRPF men while putting her infant to sleep at home, was confirmed dead by Upendra Singh, a retired district judge. Women in these places risk the wrath of multiple organisations fighting the army and civilians, in addition to rapes and molestations by soldiers. Individuals, particularly women, are subjected to such groups’ restrictions, which restrict their movements and rights. Militant groups in the Kashmir Valley publish fatwas dictating dos and don’ts for girls on a regular basis. Under the direction of Asiya Andrabi, the Dukhtaran-e-Millat (Daughters of the Nation) functions as a social control mechanism over women’s activities in the Valley. Soldiers and native women build relationships in these regions. The locals are not accepting of such a condition.

Conclusion

Due to its provisions, AFSPA has enraged not only members of civil society and/or human rights organizations, but also the Indian judiciary and several committees established to investigate or deal with it. The Supreme Court held in April 2013, while considering a case in which two Border Security Force (BSF) personnel were involved in the 2010 killing of a Kashmiri teenager, that the provisions of AFSPA could not summarily replace general laws and that all such cases did not need to be tried in defence services court. It claimed that the protection provided by AFSPA was restricted to activities performed in the line of duty. Rape and murder were considered “regular crimes” that should be tried in criminal court. In its 2013 report, the Justice Verma Committee underlined the Supreme Court’s ruling that security forces should not be protected by AFSPA, particularly in situations of rape and sexual assault. ‘Systematic or isolated sexual violence in the course of internal security tasks is legitimized by AFSPA, which is in effect in significant regions of our nation,‘ it stated. The definitions in the Act are so broad that it allows the Armed Forces to interpret them according to their own whims and fancies and thus escape punishment even after gross violations of human rights, international treaties and conventions, and well-established municipal law by claiming that their actions were carried out in the course of their official duties and in accordance with established legal procedures, such as the AFSPA.How can one understand that the AFSPA, which puts mankind to shame and which even the devil can’t lift a hand to justify, remains in place despite the horrific crime being perpetrated repeatedly during its 63-year history? “Every few years, the oppressed are able to choose which particular representatives of the oppressing class would represent and persecute them in parliament,” said Lenin, the great world proletariat leader.


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