Close to six decades have passed since Pt. Jawaharlal Nehru unfurled the tiranga atop the Red Fort signifying India’s tryst with its long-cherished destiny of Independence. But are we truly independent? Independence is not merely a physical state but a mental state as well. This inexplicable Indian fetish for the West is conspicuous by our ambitions, our material aspirations, the importance attached to the English language, and even the laws of our land. It is in this context that we discuss the Armed Forces Special Powers Act, an act long claimed to be draconian in its exercise and an act tracing back its genesis to the good ol’ British regime.
AFSPA, as we now know it, was modelled on the Armed Forces Special Powers Ordinance, promulgated by the British to suppress the Quit India Movement in 1942. As the title itself suggests, special powers were bestowed on the armed forces, to ensure efficiency in their operation and more importantly, to ensure their immunity. The Act was repealed soon after we gained Independence but when insurgency tensions surfaced in the Naga- dominated areas of Assam and Manipur, the Centre felt it prudent enough to resurrect it in 1958, in all its initial rigidity and rigorousness. Delhi had been unyielding with the accession of these states to the Indian subcontinent, which became the primary reason for their disenchantment with the commonly conceived Indian dream. The Nagas opined that they were of a different social and racial background and that this merger with the Indian Subcontinent was unacceptable, so much so, that they boycotted the Indian Constitution in 1951 and began committing violations against the state by 1952. AFSPA,at first, proved to be extremely meticulous, with the deployed armed forces doing all that they could within the range of their powers, to quell the internal violence and to reinstate normalcy in the states of Assam and Manipur. But many a time, such successful firsts are followed by not-so successful nexts and the history of AFSPA bears evidence to this fact, not only in the North-East but also in Jammu & Kashmir and Punjab. Punjab, more specifically Chandigarh, began witnessing a struggle for hegemony among different Sikh factions in 1982 and the central government declared it to be a “disturbed area”, invoking the AFSPA to restore order to the state. J&K has had insurgency with domestic and foreign dimensions, which gives it a character of its own. Domestically, the centre’s dominance over the state sowed the seeds of alienation in the minds of the people and externally Kashmir has always been the bone of contention between India and Pakistan over which four wars have been fought. Such prevalent conditions of probable internal conflicts and proxy war aims of Pakistan can create difficulties for the state machinery to function and it was in order to do away with such situations, that the AFSPA was implemented in Kashmir in 1990. In spite of its noble intentions, AFSPA has been criticised time and again because of the magnitude of power conferred under this act to the army. The structural framework of the initial 1958 act was extremely vague with the army given the discretion to decide the parameters of suspicion and act upon that suspicion as well. All army officials, regardless of the post, could use force, arrest and even kill any person they suspect of being involved in terrorist activities or having possession of arms. Any particular place which is believed to be sheltering rebels can be searched by these officials without issuance of a search warrant. This act comes into play once the Governor of the state declares it to be a “disturbed area” for reasons he deems fit, for these reasons may vary. Above all, this act provides the army a sense of immunity to carry out its pre-determined task, so that no objections are raised against its actions except when decided by the Supreme Court. Such freedoms were granted to the army for, as mentioned above, efficiency of operation. But it led to illegitimate use of these freedoms by the army officials and gross excesses committed by them. The case of Major Rehman Hussain who raped many women in the district of Handwara, Chandigarh while on duty is just one example. The figures of rape, molestation of women, cold blooded but unnecessary murders and other incidents of impunity on the part of the army soared exponentially in number after 1958. Thus, revocation of AFSPA was touted to be the panacea of all the grievances experienced by the victims and their families. The Jeevan Reddy Commission, which was given the task of reviewing the Act and suggesting amendments to it, declared the act inhumane and strongly espoused its revocation. In support of his stand, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, ChristofHeyns, on March 30, 2012, also called for the repeal of AFSPA, saying that: “AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped.” Facing pressure from the political parties and the
AFSPA, as we now know it, was modelled on the Armed Forces Special Powers Ordinance, promulgated by the British to suppress the Quit India Movement in 1942. As the title itself suggests, special powers were bestowed on the armed forces, to ensure efficiency in their operation and more importantly, to ensure their immunity. The Act was repealed soon after we gained Independence but when insurgency tensions surfaced in the Naga- dominated areas of Assam and Manipur, the Centre felt it prudent enough to resurrect it in 1958, in all its initial rigidity and rigorousness. Delhi had been unyielding with the accession of these states to the Indian subcontinent, which became the primary reason for their disenchantment with the commonly conceived Indian dream. The Nagas opined that they were of a different social and racial background and that this merger with the Indian Subcontinent was unacceptable, so much so, that they boycotted the Indian Constitution in 1951 and began committing violations against the state by 1952.AFSPA,at first, proved to be extremely meticulous, with the deployed armed forces doing all that they could within the range of their powers, to quell the internal violence and to reinstate normalcy in the states of Assam and Manipur. But many a time, such successful firsts are followed by not-so successful nexts and the history of AFSPA bears evidence to this fact, not only in the North-East but also in Jammu & Kashmir and Punjab. Punjab, more specifically Chandigarh, began witnessing a struggle for hegemony among different Sikh factions in 1982 and the central government declared it to be a “disturbed area”, invoking the AFSPA to restore order to the state. J&K has had insurgency with domestic and foreign dimensions, which gives it a character of its own. Domestically, the centre’s dominance over the state sowed the seeds of alienation in the minds of the people and externally Kashmir has always been the bone of contention between India and Pakistan over which four wars have been fought. Such prevalent conditions of probable internal conflicts and proxy war aims of Pakistan can create difficulties for the state machinery to function and it was in order to do away with such situations, that the AFSPA was implemented in Kashmir in 1990. In spite of its noble intentions, AFSPA has been criticised time and again because of the magnitude of
In spite of its noble intentions, AFSPA has been criticised time and again because of the magnitude of power conferred under this act to the army. The structural framework of the initial 1958 act was extremely vague with the army given the discretion to decide the parameters of suspicion and act upon that suspicion as well. All army officials, regardless of the post, could use force, arrest and even kill any person they suspect of being involved in terrorist activities or having possession of arms. Any particular place which is believed to be sheltering rebels can be searched by these officials without issuance of a search warrant. This act comes into play once the Governor of the state declares it to be a “disturbed area” for reasons he deems fit, for these reasons may vary. Above all, this act provides the army a sense of immunity to carry out its pre-determined task, so that no objections are raised against its actions except when decided by the Supreme Court. Such freedoms were granted to the army for, as mentioned above, efficiency of operation. But it led to illegitimate use of these freedoms by the army officials and gross excesses committed by them. The case of Major Rehman Hussain who raped many women in the district of Handwara, Chandigarh while on duty is just one example. The figures of rape, molestation of women, cold blooded but unnecessary murders and other incidents of impunity on the part of the army soared exponentially in number after 1958. Thus, revocation of AFSPA was touted to be the panacea of all the grievances experienced by the victims and their families. The Jeevan Reddy Commission, which was given the task of reviewing the Act and suggesting amendments to it, declared the act inhumane and strongly espoused its revocation. In support of his stand, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, ChristofHeyns, on March 30, 2012, also called for the repeal of AFSPA, saying that: “AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped.”
Facing pressure from the political parties and the populace in general, the Act was amended in 1990 and since then there has been a marked decline in the cases of human rights violations. The Act was amended to include a fixed set of parameters which could help determine whether or not a place was “disturbed” so that this decision would not rely on the judgment of the state officials alone. Moreover, the amended act prescribes a degree of leniency to be used while dealing with suspects and those who violate the law. The perception that, while operating under AFSPA, the army is the perpetrator, the sole judge and the jury is slowly turning out to be baseless as now a list of DO’S and DONT’S adorn the act and have acquired legal character as well. This has limited the powers of the army to a large extent, and for the better, really. There might be three kinds of lies with statistics being one of them, but one shouldn’t completely overlook them. In the case of the fall in the number of allegations against the army, the numbers speak for themselves. Huffington Post reported, “The allegations reduced from as many as 1170 between 1990-99, to 226 during the period 2000-04, to 54 during 2005-09. Only 9 allegations were levelled in 2009, 6 in 2010 and 4 in 2011.” However, people do not tend to forget the injustices meted out to them and in that process fail to give credence to the good that is done. One of the gravest mistakes committed by the army was perhaps the failure to communicate with the public, attempting to explain how it tried to redress the wrongs and how its mechanism of working has changed, hence the figures given above. What people also disregard is thefact that the excesses committed by the army are high not only in the AFSPA oppressed states but in general throughout India as well. Several options are being considered as alternatives to AFSPA in its present form, from complete revocation to partial revocation (revocation of the act from certain areas) as well as replacing it with the Unlawful Activities (Prevention) Act, 1967, which though provides the required protection to the army, promises to prevent the misuse of power by the very same army.
In conclusion, the uncompromising nature of AFSPA is now a matter of history. The centre and the state have to make concerted efforts to understand the nitty-gritties of this act and how it should be applied to the relevant states in the current scenarios. Measured steps are the need of the hour as knee-jerk reactions will take the clock backwards. Deciding on the way ahead is a concern that can no longer be compromised upon.