The Union Home Ministry (MHA) has extended the Armed Forces (Special Powers) Act (AFSPA) in Nagaland for another six months, officials said here on Thursday. It is a news which might not gain much importance in the national media or might be valid for many in the name of national security and maintenance of law and order. Another news of such kind which can be related to AFSPA in the recent times is the custodial death of a 23 year old man named Jayanta Bora of Assam who was accused by the police of being associated with separatist armed organisation. The family of the man did not even receive his corpse.

Introduction

In simple terms, AFSPA gives armed forces the power to maintain public order in disturbed areas. This act which has a root in the colonial times was brought up by the then Prime Minister Jawaharlal Nehru almost 6 decades ago. The Act came into force in the context of increasing violence in the North-eastern States, which the State governments found difficult to control. The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958 . It is said that a few years into Indian Independence, Jawaharlal Nehru, the first Prime Minister had to face the first insurgency in the Naga districts of then Assam along the Burmese border. Indian Union responded by sending in thousands of Indian army soldiers and paramilitary men from the Assam Rifles to crush the rebellion.

Rousseu’s principal contribution to legal theory is his idea that in existing societies, rule of law and rule by law do not occupy a single continuum and do not present mutually exclusive options Probably Nehru did validate what Rousseau had argued and passed the Armed Forces Special Powers Act (1958) in the Indian Parliament. One of the few members who spoke against the law in the Parliament was Suredra Mohanty from Odisha. He quoted “We want a free India. But, we do not want a free India with barbed wires and concentration camps, where havaldars (sergeants) can shoot at sight any man,” This statement probably denies the essence of the law with the impunity given to the armed forces, where a civil aspiration is blown off by Military force. Today AFSPA covers a major portion of the North East.

Colonial Roots

This draconian law has its root in colonial times. The law symbolises colonial power structure and the mechanism in which colonialism is being carried on. On August 15, 1942 Lord Linlithgow, the Viceroy of India, promulgated the Armed Forces Special Powers (Ordinance) to suppress the Quit India Movement by Mahatma Gandhi. During this Police Offices as well as railway and telegraph lines, which was a form of British vision and design, were burned down to hamper their war effort against an impending Japanese invasion on the Burmese front.

With the impunity that AFPSA provides such as- under Section 4 any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces has the power to arrest any person without a warrant. Additionally, if he feels that an absconder is hiding somewhere, he can destroy any structure without verification and use force even to kill. Under Section 6 of the Act, armed personnel cannot be challenged in the court of law for all these acts. Armed Forces have misused this section on various occasions. With no doubt one can say that this act is being modelled along the Armed Forces Special Powers (Ordinance of 1942). But the irony is that the 1942 version was used to carry forward colonial oppression and in the post-colonial era with a change in the title mostly it is being used to carry forward the legacy of the biggest democracy in the world.

Human rights violations and AFSPA

Manipuri women staging a nude protest against army oppression in front of the Assam Rifles HQ after the Manorama Devi incident

AFSPA after being enforced in 1958, due to the extreme law and order disturbances, has been incrementally applied in the North eastern states (except Sikkim) and also in Jammu and Kashmir. Over the years various atrocities of armed forces through frequent raids, fake encounters, demolition of private property etc have made lives of people in the areas labelled as disturbed areas too disturbing and vulnerable. Real freedom seems to be too far for the people from these areas. Over the last 6 decades AFSPA has remained as a telling tale of agony.

The Indian state even after absorbing the ideals of a democracy through adoption of its constitution, has made a mockery of human rights through enactment of laws like AFSPA. Since the law does not clearly define what defines a peaceful gathering or a wild or berserk mob, and actions can be taken based on suspicion, there is every possibility that even innocent individuals could be harassed or killed under AFSPA (the issue of armed conflict by insurgents is at a different level). What is more fearful and worrisome is that if an area is declared as “Disturbed Area” it cannot be challenged in the court of law. Right to life- a fundamental right under the constitution of India is violated by Section 4(a) of the AFSPA, which grants the armed forces power to shoot to kill in law enforcement situations without regard to restrictions by international human rights laws on the use of lethal force. Lethal force is broadly permitted under the AFSPA if the target is part of an assembly of five or more persons, holding weapons, or “carrying things capable of being used as weapons”. The terms “assembly” and “weapon” are not defined. The act also allows ground of arbitrary arrest through section 4 (c).

The Justice Verma Committee was set up to suggest amendments (not repeal) to laws relating to crimes against women. The areas under AFSPA have experienced a widespread human rights violations and abuses. Some of the cases where human rights have been grossly violated over the years are

  1. Rape, Brutal and Merciless Torture– The brutal and merciless torture that Thongjam Manorama suffered at the hands of Assam Rifles came into the picture through the Judicial Inquiry commission report (after 10 years of her death). Manorama was found dead with multiple gunshot injuries on her private parts after being picked up by “a strong- armed troops of 17th Assam Rifles” in the night between July10-11, 2004 from her home in Imphal East District. In Meghalaya Armed Forces have reportedly committed numerous atrocities against civilians under the auspices of AFSPA. During operation Birdie it is reported that many Khasi tribal women were reportedly raped. There were also reports of usage of women human shields by the Assam Riffles. A woman named Lianthangvuanga  from Mizoram was reportedly raped by five soldiers. She was successful in escaping but further had to bear the trauma of her father being tortured by the army who died later due to the injuries.
  2. Children and Sexual Violence– A 12-year-old girl was raped by a member of the Assam Rifles in Karbi Anglong on February 7, 2005. Medical tests confirmed that the abuse was sustained after the child was sedated with sleeping tablets. Fearing a backlash against the military and the AFSPA similar to what followed the death of Manorama Devi in Manipur, police arrested the accused and his accomplices.
  3. Tyre bursting lead to death of civilians– In 1995 in Kohima city Indian soldiers began shooting civilians after mistaking the sound of tyre bursting for a bomb attack. During this episode of shooting seven civilians which included girls age three and eight were killed .
Jayanta Bora’s custodial death brought up more questions about the unrestricted powers bestowed to the Armed Forces by the AFSPA

AFSPA has been a tool of arbitrary detention, torture and the killing of peaceful critics. With the rights to remedy also been violated under AFPSA, a shield is being provided to the armed force personals who are implicated in serious abuses. AFSPA has been facilitating violation of the right to be free from torture, and cruel or degrading treatment. Even the ill treatment of the armed forces during the interrogation in army barracks cannot be questioned. This really makes one to think- “Will Jayanta Bora get Justice”.

Aniruddha Bora

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