Civil(ising) Armed Forces Special Powers Act
The scathing indictment by the United Nations Office of the High Commissioner for Human Rights, OHCHR, on July 4 that the Central Bureau of Investigation tasked by the Supreme Court to investigate the veracity of the charge of 1528 fake encounter killings by security forces in Manipur is seemingly stalling the investigation, is the latest scar the Armed Forces Special Powers Act, 1958, has given to the democratic credential of the country. Needless to say AFSPA has earned India many more ugly reprimands from the UN in the recent past.
The case of the 1528 encounter deaths, filed by a civil organisation, the Extra-Judicial Execution Victim Families’ Association, Manipur, EEVFAM, and Human Rights Alert, HRA, Manipur, is pending with the Supreme Court since 2012. The Union and the Manipur state governments have been contending all killed were insurgents and these deaths happened in actual firefights. In 2013, the Supreme Court appointed a 3-member commission headed by Justice Santosh Hegde to ascertain if these charges carried weight.
The commission picked six of these cases at random and held hearings in Imphal, and their findings was that all six were custodial killings. In 2016, the Supreme Court tasked the CBI to investigate the rest of the cases, and it is this investigation which has atrociously not made any headway. A week ago, on June 30, 2018, the CBI indicated they could complete investigating only four of these cases.
The disturbing question is whether at an unconscious level, there is a widely shared belief that draconian measures, and with it severe collateral damages, even if it means disregard of international Human Rights standards, are necessary strategies to meet militant challenges to the state. Equally, the suspicion is, this shared belief may be what is ensuring the continuance of the AFSPA in the Northeast, and Kashmir since 1990. Exposed in the process is a failure of liberal imagination in India to come up with a civil solution to a civil unrest for six decades now. If the AFSPA was an emergency measure resorted in 1958 in the then Naga Hills District of Assam to fight Naga insurgency, the question is, can an emergency last 60 years, and if it does, can it still be called an emergency and not a failure of democracy?
There is an inherent contradiction in the AFSPA. This has to do with the use of an instrument of war in civil unrest. As a short duration emergency measure, perhaps this would be justifiable but definitely not as a sustained campaign. If the latter were to be so, then should not these unrests be treated as war so that the use of military would become warranted by the state’s right to belligerency.
To the contrary these unrests continue to be treated as internal law and order situations, for calling them wars have other implications. As for instance, war implies an international conflict, thereby according these insurrections the status of putative states. Moreover, international laws of war such as the Geneva Conventions and the Hague Conventions would become applicable, so would international mediations. No nation of the world, not the least India, would want this.
There have however been several serious institutional attempts at an answer. The most notable is the Justice Jeevan Reddy Commission instituted in 2004 to look into the relevance of the AFSPA and to “humanise it”. The commission recommended in 2006, the repeal of the AFSPA and to incorporate its provisions into the Unlawful Activities (Prevention) Act, UAPA. In short, the continued use of the military in these civil situations, but after making the military’s actions accountable to civil law. The acknowledgment is that the military’s firepower may be essential to neutralise the firepower of the insurgents but the actions of the military in policing role must be made accountable to civil law. The recommendation did not see the light of day officially because of objections from military brass, but thanks to some radical practitioners amongst the fourth pillar of Indian democracy, the entire document is public.
The 2nd Administrative Reforms Commission constituted in 2005 and headed by Veerapa Moily, virtually came up with the same recommendation. This panel too wanted the AFSPA scrapped and to have its provisions incorporated in a civil law to make the action of the military in such duties accountable. This recommendation too was not taken.
The objections to the AFSPA is not only the sweeping powers it gives the military, such as to use force to the extent of causing death on suspicion a person is a militant, or enter homes and make arrests without warrant, or destroy shelters (houses) on mere suspicion of militants hiding in them, etc., but more so to the impunity provided to those practicing these powers. Regardless of the atrocities committed, the military under AFSPA cannot be taken to the court of law and will remain accountable only to itself and its martial law. The dangers in this are self-evident.
It is true the police can be equally brutal. In places where the AFSPA has been around for long, the culture of impunity has spread to the police as well, though the AFSPA does not cover them. Indeed, much of the more recent encounter killings amongst the 1528 cases in Manipur, the state’s notorious police commandos were responsible. But the difference is, the police is accountable to civil law, and when atrocities are exposed, they are liable to be punished, and they know this. The sensational expose by Tehelka in July 2009 of the daylight murder of Chongkham Sanjit by the police, and the legal actions that followed, caused a sudden drop in fake encounters in the state. The victims in these cases are not totally powerless. This remains a vital safeguard.
(First published Deccan Herald)
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