AFSPA-A Nation,Its People and its Armed Forces.

AFSPA-one of the most controversial laws of our times is again in the limelight owing to the renewed interest in the decade long hunger strike launched by Irom sharmila against the atrocities perpetrated by the armed forces under the aegis of the law. However an objective analysis of both the sides of the argument reveals an entirely different but universally acknowledged truth about all legislation.

The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the more draconian legislation that the Indian Parliament has passed in its 45 years of Parliamentary history. Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill based on mere suspicion that it is necessary to do so in order to "maintain the public order".

Wide powers to shoot, arrest and search, all in the name of "aiding civil power." It was first applied to the North Eastern states of Assam and Manipur and was amended in 1972 to extend to all the seven states in the north- eastern region of India. AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. This legislation is sought to be justified by the Government of India, on the plea that it is required to stop the North East states from seceding from the Indian Union. There is a strong movement for self-determination which precedes the formation of the Indian Union itself.

Conditions which necessitated AFSPA and consequent indiscretions by the armed forces

The Naga Movement-A secessionist movement aimed at creating the sovereign greater Nagaland comprising current Nagaland, Naga inhabited regions of Arunachal pradesh, Manipur, Meghalaya and parts of Myanmar.

Mizo National Front (MNF) called for an armed struggle, “to liberate Mizoram from Indian colonialism."The army action is alleged to have violated right to life and protection against arbitrary arrest and detention provided by articles 21 and 22 of Indian Constitution are just a few instances which argue in favor of the law.

On the other hand the AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (the "UDHR"), the International Covenant on Civil and Political Rights (the "ICCPR"), and the Convention against Torture among others.

“ Operation Bluebird” conducted by the Assam Rifles had Amnesty International report which found that more than 300 villagers claimed they were beaten, some torture victims were left for dead

"Operation Rhino”, conducted by Rajputana Rifles are alleged to have surrounded the village of Bodhakors on October 4, 1991. An extensive house to house searched was conducted during which women were sexually harassed and men were taken to interrogation camps People's Union for Civil Liberties (PUCL).

Necessity of AFSPA- a soldiers perspective

It is often simplistically argued that the security forces need the Act. This is actually quite misleading since the State alone can under a constitutional statute declare an area as “disturbed” and decide upon the “deployment” of the central paramilitary or the armed forces. It is invariably seen that the following circumstances drive the employment of the security forces:

Administrative failures have time and again contributed to insurgencies in the past. Once they have erupted, the local functionaries and the police forces have proved inadequate in coping with them. As a result, the states are simply forced to turn to central paramilitary forces or the army for protection of life and property.

The affected states have simply failed to make capital out of the “peace dividend” delivered by the security forces. This has often resulted in their extended presence with no signs at all of return to normalcy.

Consequently, the security forces have a right to seek legal provisions to undertake operations for three fundamental reasons.

· One, a soldier unlike a policeman is not empowered by the law to use force.

· Next, while operating in far flung areas, it is simply not possible to requisition the support of magistrates every now and then

· Lastly, their employment is an instrument of `last resort` when all other options have been exhausted.

Risks of Dilution

Three issues merit attention:

Firstly, it would dilute the capacity of an important instrument of the state – the armed forces - to tackle the security challenges faced by the country.

Secondly, it would motivate the insurgent leadership, field cadres and their over ground supporters to engage in reckless damage to public life and property. It may well result in a security situation which slides beyond redemption, necessitating major political compromise.

Thirdly, the annulment of the law and the resultant lack of security cover would adversely affect the governance and development capacities in the insurgency affected states, and the eventual redress of local grievances.

A soldier makes significant personal sacrifices in his life, and all that he wishes is that the nation accepts his contribution in difficult conditions, and does not drag him to court for undertaking a task assigned to him. He surely seeks reasonable immunity while acting in good faith to prevent destruction to life and property

But no argument can defend the mindless violation by the security forces against the same population they were sent to defend.

Under intense pressure, the government in 2004 constituted a five-member committee under the Chairmanship of Justice B P Jeevan Reddy, a former Supreme Court judge. The committee was to review the provisions of AFSPA and advise the Government on whether to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or to replace it with a more humane Act.

Although the government hasn't taken any concrete action on the findings of the Reddy committee that suggested, among other things, the repeal of the Act, it helped bring a burning issue to the forefront.

Hence it can be concluded the fault as usual lies with the implementing authority and not the law pursuit is just a weapon which can be used to defend the nation’s integrity on the one hand and at the same can be abused as a weapon of terror. Hence the need of the hour if same old good governance, responsible and a responsive government along with a sensitized policing by the armed forces.

A brief comparison between Anna’s and Sharmila’s fast will be discussed in our following article.