AFSPA As I See It
By Wg Cdr G Baruah ( Retd)
On a fateful date of 22 May 1958, Parliament of India passed a draconian law called the Armed Forces Special Powers Act. Sections 4 and 5 of the ordnance give sweeping powers to the Officers, Warrant Officers and Non Commissioned Officers of Indian Army and Indian Air Force. Simply stated; these are:-
a) Fire upon any one that you suspect to have instigated disturbance
b) Use required force to arrest the perpetrator of disturbance and take possession of the man. No arrest warrants are required.
c) Death; if caused to the suspected person/persons in the process of apprehending him/them cannot be tried in terms of the proviso of the clause of 'men slaughter' of the Indian Penal Code.
d) Neutralise the arms and ammunition Depot from where the persons causing the disturbance are suspected to be supplying arms and ammunitions to create disturbance. No prior permission from civilian authority is required for this.
e) Carry out search operation of premises to find out the suspected fugitives, arms and ammunitions. For this, no search warrant is required
f) Hand over the apprehended persons to the nearest police station with the shortest possible delay. The 'shortest' is not defined.
Till 1972, the Governors of the states could declare a particular area or the entire state as disturbed area which could pave way for implementation of the Armed Forces Special Powers Act in J&K, and the North Eastern States. By an amendment, the power to declare an area or a state as disturbed area has been taken over by the Central Government.
This law was enforced in Jammu and Kashmir, whole of Assam and Union Territory of Manipur in 1958. It is still in vogue in the states mentioned.
The manner Manipur King Hijam Irabot was subjugated by VP Menon; an emissary of Government of India in 1949 and the way Manipur was ceded to Indian dominion gave rise to various organisations which gave vent to their feelings with violence. It still continues.
The law was enforced with a lot of vigour in Assam in 1990 to counter the ULFA and other Terrorist Organisations. Currently it has been extended to one more calendar year i.e. up to 24 Dec 2012 in Assam.
I suppose, there was a necessity of the law immediately after independence of the country from the British rule to safeguard the sovereignty and integrity in the western and the eastern parts. After Raja Hari Singh ceded Kashmir to India and when Phizo was firm in his demand of a sovereign Nagaland; Government of India invoked the provision of the act to suffocate the uprising by using Army.
There is a lady named Irom Sharmila of Manipur who is on a fast unto death on this issue. We shall come to that later on. Before that; I would like to dwell upon another draconian law.
The personnel of the three services enjoy a blanket cover as far as the application of legal procedures is concerned. They are covered by another amenity of law; they are subject to concurrent jurisdiction.
The concurrent Jurisdiction enables a soldier to seek justice through the armed forces courts which are known as Court Martial. The offences where a soldier is not subject to concurrent jurisdiction are rape, murder and culpable homicide not amounting to murder.
Section 69 of the Army Act classifies the offences in four categories. These are:-
a) It is not an offence as per the civil law but created for the first time as an offence in Army Parlance
b) Cases which are recognised as offences in both Civil and Army Law
c) It is an offence in civil, but by a legal fiction made to be under Army Law
d) It is an Offence in civil, but same is not included amongst Army Act proviso as an offence either by definition or fictionally
In terms of Act 48 of Army Act 1950, the offences falling under first instance can be tried only by a court martial, the offences in the categories of second and third can both be tried by a criminal court as well a military court and the last instance is tried only by the Civil Criminal Courts.
You may ask; why did I bring out the AFSPA along with Concurrent Jurisdiction?
I have a reason for bringing out the concurrent jurisdiction while dealing with the AFSPA.
Firstly, let us browse through the following:-
a) Let my fraternity; the three services; not take this write up of mine, as umbrage. I have been a member of the armed force for better part of my life. I value the bonhomie, the camaraderie and the sense of belonging. But I am a human being and after hanging my uniform, I live in a society called the Assamese Society. I take it as my duty to dispel the wrong notions about a draconian law called the AFSPA clubbed with the Concurrent Jurisdiction. Lot of people think that they have done sufficiently enough by giving the personnel in uniform the canteen facilities with the added VAT and by hiking the salaries of the soldiers almost at par with the civilian counterparts. Out of the lot, there are many; particularly those; who matter, forget that there were lives lost while defending the country in the wars that we fought in 1962.1965, 1971; while upholding the sanctity of the Parliament, in the War for Kargil, not to speak of the people who lost their lives as member of the Indian Peacekeeping Force . Lot of people who lost their lives in the Mumbai Carnage along with the civilians were the uniformed people.
b) We do not do anything more than remembering the martyrs on the Vijay Divas. We have already forgotten the departed soldiers of Kargil. 'Op Pawan' was not in my wish list. But personnel donning the Olive green, Sky Blue and White were deployed in Jaffna, Mulaitivu and other Sinhalese places. Lot of them perished.
c) Does anybody anytime think of the guys in mufti standing erect on the high ways, in deep jungles and in difficult terrain with a gun under his arm for long periods in the hilly terrains of Jammu and Kashmir and the North East? How long could be the period that these guys are made to keep standing looking at nothing? God knows! And he also must have a life, a family. He certainly must have his share of problems. He also must have his aspirations and he must also be thinking of some inspirations from somewhere!
d) My heart is with my uniformed friends. But heart alone does not make the complete picture.
While saying that, I would ask you to think of the parade of the ladies wearing nothing in Manipur when one Manorama Devi was gang raped and killed by the soldiers. Think of the cases of missing ULFA cadres after the 'Operation All Clear' of Bhutan. Irom Sharmila is only a tip of the ice berg. There would be hundreds of Irom Sharmila if the draconian laws are not amended or repealed. I understand, we require strong laws to protect the hands of the law enforcing agencies, but I suppose, the laws are enacted for the people at large. If the people are not satisfied, what is the meaning of a law?
Let me dwell upon the affected people under the garb of the AFSPA in the North East in Nutshell.
There is a village called Oinam in Manipur. Ask the villagers what the Army did to their girls and women on a fateful evening of 1987. The date and time is just irrelevant now.
There was mayhem and gang rape carried out by the uniformed personnel in Uzan Maidan of Tripura in 1988. This was done when the Governor declared the state as a disturbed area and AFSPA was invoked. The State Government opposed the declaration!
The terror let loose during 'Op Rhino' in Assam left scores maimed, killed and incapacitated.
Ukhrul, a town in Manipur was mortared in 1994. Mortars were used again in Mokokchang of Nagaland in December 1994. By the by, mortars are used only against enemy soldiers in a war, not for maintaining law and order!
An Army Jeep unfortunately had a flat tyre. The Jeep had an Army Officer as a passenger.
Why should the Jeep have a flat tyre? The Army opened fire on the civilians in the street of Kohima in 1995 and killed scores.
Thangan Manorama Devi AKA Henthoi was gang raped and killed in Manipur in 2004; when old ladies came out to the street with the placards where 'Come Rape Us' was inscribed; they were wearing nothing!
I am afraid to mention Mizoram. I am afraid, because, personnel of Indian Air Force are also a part of the personnel authorised to wield their powers under AFSPA like Army. And they did it with gusto. They threw Napalm Bombs in the villages, they chaffed the civilian population and they bombed the offices to take out the Mizo National Front agitators!
Now, let me dwell on the meat of the story.
The law enforcing agency under the AFSPA is not answerable to anybody for their acts.
There is no provision of an appeal at a court of law against the atrocities committed by the army men.
The cases of atrocities reported in the media are too few. Ask Dr Angela Ao, who was a district Mother and Child Health Officer in Mokokchang during 1994. She would tell you the exact number of women that she attended to! The figures let out in the media were too small against the actual number.
Now I have the following to add:-
a) Power accorded to 'shoot to kill' is a clear violation of constitutional right of the citizen and it contravenes both Indian and International laws
b) It is a violation of 'Right to live' under section 21 of the constitution of India
c) It is against the principles of International Covenant on Civil and Political Rights (ICCPR). We are a signatory to this covenant since 1978
Let me come back to my bug bear; the Concurrent Jurisdiction and juxtapose it with the AFSPA.
It seems to me that we are amenable to let loose a team of monsters with constitutional authority to create mayhem at will. We condone their follies with soft hands by bringing them under an umbrella called the concurrent jurisdiction.
I am also privy to a question with all my affected brethren of the North East and the J&K to ask, why we; the peace loving people only have to bear the brunt of the draconian law? Did the Government declare Gujarat as a disturbed area during Gujarat Riots? Was not
Ahmednagar of Maharashtra declared as a disturbed area? What happened during Bombay riots? What happened when LTTE was creating mayhem in the southern peninsula particularly in Tamil Nadu? Did you impose AFSPA in these elite locations?
If not, why in the North Eastern States alone, and why in J&K?
Over all; I feel that, our administration is selective while invoking this law. While doing that, the administration is authorising a section of our own people to choose justice of his choice from his desired courts, at the same time allowing him to carry on with the mayhem under the garb of AFSPA; that too in selected geographical limits. I feel that to be high headed and one sided.
I would like to see an end to the unnecessary debate. I would like to see my brethren in arms in sublime uniforms doing their duties with a smile to protect the motherland. Please stop using the Army to look after internal law and order, please keep them in the barracks and borders, let the borders be in safe hands, and for God's sake, keep the uniformed people away from the dirty politics.
Ponder; how many Generals do we have from the land of Lachit Borphukan and Chilarai in the country's Army? We have hardly any. We have hardly any; because; our boys and girls don't join the Army. Why? Ask yourself. You shall have the answer.
Next to Bangladesh they have the Army on their hate list!
And; I still believe, a job in the three services is just sublime, particularly at the time of need.
I would like to send in a request to all who matter; please review your decisions on AFSPA, it is neither doing justice for the forces nor is it giving you the desired results.
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