Over the years, the north-eastern part of India comprising of the seven states of Arunachal Pradesh, Nagaland, Mizoram, Manipur, Tripura, Assam and Meghalaya have seemingly been cut off from the rest of India. Blame it on the geographical positioning of the states, socio-cultural differences or the unique history of the region, integration and assimilation of the “seven sisters” as they are popularly known has been and continues to be a challenge. Add to this the woes caused by what has been known as the draconian law, the tainted “Armed Forces Special Powers Act, 1958” (AFSPA) – tainted by murders, torture and enforced disappearances perpetrated in the region using the legislation. The AFSPA has been holding the north eastern population within its dictatorial sway since 1958 for over fifty years and a similar law was later enacted in Jammu and Kashmir.
This legislation has only seven sections or clauses which confer excessive power on the Executive thus leading to its abuse. Under this legislation, when an area is declared as a ‘disturbed area’, security forces have complete autonomy (subject to the meagre provisions of the legislation which themselves are not sufficient to curtail or control such autonomy due to the express vesting of wide powers on the security forces) to maintain peace in such areas (combined with the apparent absence of restrictions on such wide powers).
The AFSPA has been constantly decried by both international and national human rights organizations. A solitary figure, Irom Sharmila, has been on a fast against the legislation for the past 15 years and has been arrested and imprisoned a number of times under section 309 of the Indian Penal Code, viz. the offence of attempt to commit suicide. The brutality of this legislation is evident from the number of deaths, enforced disappearances, kidnapping and abduction, torture, sexual violence and violations of human dignity, the sum of which is too long to be described in this article. This legislation stands as a testimony mocking the existence of democracy in India, and as an abomination to the fundamental principles of the Constitution of India.
THE CONTENT OF THE AFSPA
The AFSPA applies to the “seven sisters”. Under section 3 of the legislation, the Governor of a state, the Administrator of a Union territory and the Central Government have the power to declare the whole of a part of a state or Union territory as a ‘disturbed area’ if such an area is in in their opinion in a disturbed or dangerous condition that necessitates the use of armed forces. A bare perusal of section 3 startlingly reveals that the authorities when making such a declaration do not have to be guided by the usual mandates present in other legislations such as “reasonable”, “for a period of time not exceeding…”, “to be submitted to the High Court for review…” etc.
Section 4 of the AFSPA lists the acts that can be performed by the armed forces in such disturbed areas, some of them being, use lethal force if in his opinion such force is necessary, arrest without warrant even a person against whom only a reasonable suspicion exists and enter premises and search without warrant. Section 5 states that a person arrested has to be handed over to the nearest police station with the least possible delay. Again, note the absence of a particular time period within which such person would have to be handed over to the police or or produced before a judge. The nail on the coffin is section 6, which expressly provides immunity from prosecutions and other legal proceedings in respect of acts done or even purported to be done under the AFSPA.
When one compares the AFSPA with regular criminal law, one notes the glaring differences and appreciates the room the AFSPA provides for abuse. For instance, under the Code of Criminal Procedure, a person can be arrested only under limited circumstances such as when escape is imminent and has to be arrested with only the force necessary to prevent such escape. Following arrest, the person has to be produced before the Magistrate within 24 hours. Women cannot be arrested in the night and if arrest is necessary, such arrest must be done by a woman officer. Such protective provisions are absent in the AFSPA thereby allowing unhindered the violations that such provisions of the Code of Criminal Procedure seek to prevent to occur in the north-eastern states.
To sum up, in effect, this is what the AFSPA means: an officer so entitled under the Act can visit a disturbed area, pick up a person on the street with a pocket knife based on his subjective opinion that such an object held by such a person can cause a disturbance to peace, torture that person and then brutally murder him and such an act cannot be called into question by any court.
CAN WE DO WITHOUT THE AFSPA?
The answer to this question from the government and from the armed forces has for a long time been ‘no can do!’ Despite the fact that the Committee to Review the Armed Forces (Special Powers) Act, 1958, in its report, recommended the repeal of the AFSPA, calling it “a symbol of oppression, an object of hate and an instrument of discrimination”, the legislation remains in force. Not just the aforementioned special committee, but also various international organizations, including the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions.
In fact the legislation is in contravention of India’s international law obligations contained in treaties such as the International Covenant on Civil and Political Rights (ICCPR) to which India is a state party. Even the Supreme Court has sat in judicial review of this legislation a number of times and failed to strike down the AFSPA as unconstitutional although the legislation provides a number of grounds by which it could be struck down. The main reason this legislation was brought into force was to contain the secessionist forces in the north-eastern states.
The secessionist movements are in themselves justifiable for a number of reasons including that a. the culture, customs, language, race of the people of this region are closer to the Southeast Asians b. the north-eastern region since independence has been a neglected segment of the Republic with maximum exploitation of natural resources and minimum aid for development. To contain the movements (which are in fact an expression of the right to self-determination, a human right under the ICCPR), the AFSPA was promulgated and has constantly been extended over the decades by the authorities. Although the AFSPA was promulgated to contain the violence stemming from the secessionist movements and the movements themselves, all it has done is intensified feelings of animosity and secession.
The AFSPA has run its course and whether it has been a bad medicine or excessive poison is debatable. The legislation has brought a lot of misery to the north-eastern states that the rest of the Indian population has chosen to brush away maybe because of the brutality of the legislation and the cruelty it has inflicted on a group of people that cannot in any way be justified as humane. The need of the hour is the repeal of the legislation and the analysis of other avenues to maintain peace and also to assimilate and integrate the north-eastern states with the general populace, perhaps even another legislation that is much more humane.
One of the primary institutions which could achieve this, the Supreme Court, has miserably failed to humanize or repeal the legislation. In fact, the Meghalaya High Court has recently took it upon itself to usurp Executive power and declare areas as disturbed areas under the Act. This not only violates a number of constitutional principles such as separation of powers but the High Court has soiled its hands in the promotion of an instrument of injustice and inhumanity.
In light of this, immediate intervention by the Parliament or by the Supreme Court is essential to curtail the talons of the AFSPA before irreversible damage is done to the people of the north-eastern states of India.