CALLS FOR RE­PEAL OF AFSPA

A law that needs to go If left unchecked and un­fet­tered, AFSPA can pose clear and present dan­ger to In­dia’s con­sti­tu­tional man­dates of free­dom, lib­erty and rule of law. It should ei­ther be re­pealed by Par­lia­ment as rec­om­mended by Jus­tice Jee­van Reddy Com

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THE Armed Forces Spe­cial Pow­ers Act (AFSPA) gives In­dian Army the power to main­tain pub­lic or­der in “dis­turbed ar­eas”. A ‘dis­turbed area’ is one which is de­clared by no­ti­fi­ca­tion by Cen­tral and State gov­ern­ments un­der Sec­tion 3 of the AFSPA due to dif­fer­ences or dis­putes be­tween mem­bers of dif­fer­ent re­li­gious, racial, lan­guage or re­gional groups or castes or com­mu­ni­ties. AFSPA came into force in the con­text of in­creas­ing vi­o­lence in the North Eastern States decades ago, which the State gov­ern­ments found dif­fi­cult to con­trol. The Armed Forces (Spe­cial Pow­ers) Bill was passed by both the Houses of Par­lia­ment and was ap­proved by the Pres­i­dent on Septem­ber 11, 1958, mak­ing it into a law. It is ef­fec­tive in the whole of Na­ga­land, As­sam, Ma­nipur (ex­clud­ing seven assem­bly con­stituen­cies of Im­phal) and parts of Arunachal Pradesh. The Cen­tre re­voked it in Megha­laya on April 1, 2018. Ear­lier, the AFSPA was ef­fec­tive in a 20 km area along the As­samMegha­laya border. In Arunachal Pradesh, the im­pact of AFSPA was re­duced to 8 in­stead of 16 police sta­tions in Ti­rap, Longding and Changlang dis­tricts bor­der­ing As­sam.Tripura with­drew the AFSPA in 2015. Jammu and Kash­mir adopted this Act in 1990. As per Army Doc­trine-2004, In­dian Army’s pri­mary role is to pre­serve na­tional in­ter­ests and safe­guard the sovereignty, ter­ri­to­rial in­tegrity and unity of In­dia against any ex­ter­nal threats by de­ter­rence or by wag­ing war. To per­form this role, Army keeps aloof from the civil­ian crowd, con­cen­trat­ing on their train­ing and bat­tle readi­ness. Rel­e­gat­ing the Army to its se­condary/ ter­tiary role by decades-long de­ploy­ment on counter-in­sur­gency and in­ter­nal se­cu­rity du­ties di­lutes its au­thor­ity, cor­rupts ranks and com­pro­mises ef­fi­ciency through lack of train­ing. Be­sides, over time, Army is looked upon merely as an­other state force with its sol­diers los­ing the re­spect and mys­tique they tra­di­tion­ally en­joyed. Fa­mil­iar­ity breeds con­tempt and mil­i­tary men find them­selves at the re­ceiv­ing end. This is pre­cisely what is hap­pen­ing in Kash­mir and sev­eral places in North­East. Since civil­ian pop­u­la­tion is di­rectly in­volved, pol­i­tics and politi­cians come in. Power-games be­gin and

wit­tingly or un­wit­tingly Army be­comes a pawn. En­deav­our of power-mon­gers has al­ways been to cre­ate a sit­u­a­tion of in­tense hos­til­ity in­ex­tri­ca­bly mir­ing the mil­i­tary into it forc­ing it to re­sort to ex­ces­sive force. The words ‘na­tional se­cu­rity’ comes easy on their lips!

A sym­bol of op­pres­sion

While ex­er­cis­ing dra­co­nian pow­ers there is bound to be mis­use. In a July 2016 ver­dict, the Supreme Court ripped open the cloak of im­mu­nity and se­crecy pro­vided by AFSPA to se­cu­rity forces for deaths caused dur­ing en­coun­ters in dis­turbed ar­eas. In July 2017, the Court di­rected a CBI probe into al­leged ex­tra­ju­di­cial killings by Army, As­sam Ri­fles and Police in the in­sur­gency-hit state of Ma­nipur. It had asked the CBI Di­rec­tor to ap­point a Spe­cial In­ves­ti­gat­ing Team (SIT) to probe into the al­leged killings. The or­der had come on a PIL seek­ing probe and com­pen­sa­tion in the al­leged 1,528 ex­tra-ju­di­cial killings by se­cu­rity forces in Ma­nipur be­tween 2000 and 2012.

Sens­ing the dan­gers of the Act in 2005 it­self, a high-level com­mit­tee, headed by Jus­tice BP Jee­van Reddy of the Supreme Court tasked with re­view­ing the AFSPA un­am­bigu­ously, rec­om­mended its re­peal. Be­sides Jus­tice Reddy other mem­bers of the Com­mit­tee in­cluded a for­mer Di­rec­tor-Gen­eral of Mil­i­tary Op­er­a­tions Lt Gen­eral VR Ragha­van, a for­mer spe­cial sec­re­tary in the Union Home Min­istry PP Shri­vas­tava, a for­mer Vice-Chan­cel­lor of the Marath­wada Univer­sity Dr SB Nakade, and se­nior jour­nal­ist San­joy Hazarika. This is what the Com­mit­tee said in its 147-page re­port: “The Act is too sketchy, too bald and quite in­ad­e­quate in sev­eral par­tic­u­lars… the Act, for what­ever rea­son, has be­come a sym­bol of op­pres­sion, an ob­ject of hate and an in­stru­ment of dis­crim­i­na­tion and high­hand­ed­ness.” Re­ject­ing the prin­ci­pal sub­mis­sion made by the armed forces in favour of con­tin­u­a­tion of the AFSPA, the Com­mit­tee pointed out that pro­tec­tion from le­gal pro­ceed­ings against sol­diers act­ing in good faith al­ready ex­ists in Sec­tion 49 of the Un­law­ful Ac­tiv­i­ties (Preven­tion) Act, 1967 (ULP Act). The Com­mit­tee also sug­gested amendments to the ULP Act to in­cor­po­rate mea­sures that would reg­u­late the al­ready per­mis­si­ble con­duct of armed forces per­son­nel in ar­eas where they are de­ployed to fight ter­ror­ist ac­tiv­i­ties and pro­vide pro­tec­tion to or­di­nary citizens against pos­si­ble abuse. But suc­ces­sive gov­ern­ments and army top brass have been de­fend­ing AFPSA with all their might. Over the years, the ef­fort of rul­ing politi­cians has been to make Army as in­stru­ment of an in­creas­ingly au­to­cratic state. And it looks as if some Army hawks and top brass with a false sense of ‘mil­i­tary pa­tri­o­tism’ are play­ing ball to these au­to­crats. This prob­a­bly ex­plains the un­prece­dented move of 356 army of­fi­cers who have filed a writ petition in the Supreme Court ask­ing for all court­mon­i­tored in­ves­ti­ga­tions into fake en­coun­ters by the armed forces to be stayed. The first prayer of the pe­ti­tion­ers is to pro­tect the “bonafide” ac­tion of sol­diers un­der AFSPA, “so that no sol­dier is ha­rassed by ini­ti­a­tion of crim­i­nal pro­ceed­ings”. This ‘show of strength’ has been trig­gered by two cases which have brought the army to the brink of pros­e­cu­tion. First is the Ma­nipur case and the sec­ond is a new one on the deaths of three civil­ians in Shopian, Jammu and Kash­mir, in Jan­uary 2018. The state govern­ment had filed a FIR against Ma­jor Aditya Ku­mar of the 10 Garhwal Ri­fles in this case. His father Lt Col Karamveer Singh has ap­proached the court seek­ing to quash the FIR. In March 2018, the Chief Jus­tice of In­dia stayed the in­ves­ti­ga­tion into this case.

Ma­nipur mur­der

The Ma­nipur case has been re­ferred to re­peat­edly in the petition, with the pe­ti­tion­ers as­sert­ing that the his­toric or­ders passed by the Supreme Court in 2016 and 2017 to in­ves­ti­gate the cases of al­leged fake en­coun­ters are against the In­dian con­sti­tu­tion. One such ‘en­counter-killing’ in 2010 made big news. It was the al­leged mur­der of three Ma­nipuri boys by army per­son­nel be­long­ing to the Dima­pur-based 3 Corps In­tel­li­gence and Sur­veil­lance

Suc­ces­sive gov­ern­ments and army top brass have been de­fend­ing AFPSA with all their might. Over the years, the ef­fort of rul­ing politi­cians has been to make Army as in­stru­ment of an in­creas­ingly au­to­cratic state. And it looks as if some Army hawks and top brass with a false sense of ‘mil­i­tary pa­tri­o­tism’ are play­ing ball to these au­to­crats

Unit (CISU) com­manded by Colonel Govin­dan Shree­ku­mar. The nar­ra­tive in this case sug­gests that on March 10, 2010, Di­phu­par police sta­tion of Dima­pur was in­formed about the ab­duc­tion of Phi­jam Naobi, RK Roshan and Thounao­jam Prem and police launched an ex­ten­sive search. On March 17, 2010, As­sam Police found three bul­let rid­dled bod­ies in the Boka­jan police sta­tion area of Karbi An­g­long district and in­formed the Na­ga­land Police about it. On phys­i­cal ver­i­fi­ca­tion, these bod­ies turned out to be those ab­ducted on March 10. On March 13, 2010, Col. Shree­ku­mar’s own Sec­ond-in-Com­mand, Ma­jor Ravi Ki­ran, wrote to the Bri­gadier Gen­eral Staff serv­ing un­der Lt. Gen­eral Dal­bir Singh Suhag, GOC 3 Corps, bring­ing this grue­some crime to his no­tice. De­spite FIR and ev­i­dence on record no ac­tion was taken. Ma­jor Ravi Ki­ran again wrote to 3 Corps giv­ing lu­cid de­tails of the cold-blooded triple-mur­der that took place in the unit’s Of­fi­cers’ Mess. Un­like al­le­ga­tions of fake en­coun­ters raised by Hu­man Rights Groups, this case was re­ported by an Of­fi­cer of the very unit re­spon­si­ble for this grue­some mur­der! Yet, the Corps Com­man­der ig­nored it and dis­posed it off with a one-man in­quiry!

EVEN af­ter sev­eral years Ma­nipur killing re­fuses to die down within the Army as could be seen from the ac­tion of Lieu­tenant Colonel Dharamvir Singh, who had worked with the same CISU from 3 Corps. In Septem­ber 2017 he wrote to his su­pe­ri­ors al­leg­ing that CISU had been sys­tem­at­i­cally ex­e­cut­ing Ma­nipuri mil­i­tants in “fake en­coun­ters” since 2010. In response he was ac­cused of in­sub­or­di­na­tion and not join­ing his new post on time, and taken into cus­tody on July 1, 2018, by his own unit from his of­fi­cial quar­ters in Im­phal. On July 11, Singh reap­peared and filed an af­fi­davit in the Ma­nipur High Court, re­peat­ing the ac­cu­sa­tions of “fake en­coun­ters” that he had listed in his ear­lier let­ter. In this, he has de­tailed how three sus­pected mil­i­tants were al­legedly killed and at least two oth­ers taken hostage and al­legedly mur­dered by his unit, the 3 CISU. The high court has di­rected Army to file its of­fi­cial re­ply

AFSPA and J&K

It is three decades since the bomb­ing that sig­nalled the be­gin­ning of the

mur­der­ous in­sur­gency in J&K and 28 years since AFSPA was clamped down in the State. What has it achieved? Hawks among Army veter­ans con­cede that the sit­u­a­tion in the Kash­mir val­ley has de­te­ri­o­rated con­sid­er­ably but at­tribute this to the fet­ters placed on the se­cu­rity forces in hound­ing down and killing ‘in­sur­gents’ and ‘anti-na­tion­als’ who are all ‘en­e­mies of the na­tion’. They bad­ger the Supreme Court for get­ting car­ried away by the anti-AFSPA ar­gu­ments from ‘hu­man rights ac­tivists, pseudo-sec­u­lar­ists, pressti­tutes and other anti-na­tional el­e­ments’. To them “In­dia must be the only coun­try where killing of the en­e­mies of the na­tion is sub­jected to ju­di­cial re­views.”

BUT a for­mer Chief Sec­re­tary of J&K has a dif­fer­ent take: “As the one who has worked with Gover­nors Jag­mo­han, Gen Kr­ishna Rao and hav­ing had fairly close con­tacts with the civil so­ci­ety of Kash­mir for the last29 years, I can per­haps claim some first-hand knowl­edge of how the ASFPA was used in Kash­mir. I there­fore agree that this law in the long run do de­stroy democ­racy. To­day the gen­eral pub­lic of Kash­mir is al­most to­tally alien­ated from the rest of In­dia. An in­for­mal sur­vey has shown that 90 per cent of re­spon­dents in the Val­ley are in favour of “In­de­pen­dence.” Among sev­eral rea­sons for this alien­ation, the op­er­a­tion of ASFPA has played a ma­jor role. This law con­fers ab­so­lute, un­bri­dled and un­mon­i­tored power even on the low­est func­tionary of the Armed Forces, paramil­i­taries and police...”

AFSPA must go

The Supreme Court had cat­e­gor­i­cally ruled that large-scale killings in Ma­nipur or J&K in the guise of selfde­fence, while deal­ing with in­sur­gency or mil­i­tants, are un­ac­cept­able. As per the court, if mem­bers of the armed forces are de­ployed and em­ployed to kill citizens of the coun­try on the mere al­le­ga­tion or sus­pi­cion that they are the ‘en­emy’, not only the rule of law but also democ­racy would be in grave dan­ger. The apex court in­sists that every death caused by the armed forces in a dis­turbed area should be thor­oughly en­quired into. This is to ad­dress any al­le­ga­tion of use of ex­ces­sive or re­tal­ia­tory force be­yond the call of duty and even plant­ing weapons on the vic­tims to jus­tify such ex­cess. This is what the serv­ing Army of­fi­cers are chal­leng­ing and it as­sumes sig­nif­i­cance in the con­text of CBI’s SIT re­cently fil­ing chargesheets, slap­ping mur­der charges in two sep­a­rate en­counter cases in Ma­nipur. In sum and sub­stance, what the army of­fi­cers are seek­ing is to­tal im­mu­nity from any le­gal ac­tion and free­dom to shoot and kill at will civil­ians in ‘dis­turbed ar­eas’ by just brand­ing them in­sur­gents, ter­ror­ists or anti-na­tional el­e­ments! As a law fa­cil­i­tat­ing one-time/short en­gage­ment of the Army in In­ter­nal Se­cu­rity (IS) du­ties to quell in­sur­gency, AFSPA can­not be faulted. But the prob­lem is its pro­longed and end­less de­ploy­ment in IS du­ties of all kinds, which is the job of the police and at best para-mil­i­tary forces. Army’s pri­mary role is de­fend­ing In­dia by war or de­ter­rence-and se­condary/ter­tiarycounter in­sur­gency and aid to civil power-roles to play. In their pri­mary role where en­e­mies are in­volved armed forces per­son­nel cer­tainly en­joy im­mu­nity with­out ques­tion. They don’t even need AFSPA for this. But giv­ing them such im­mu­nity in their se­condary/ ter­tiary role where our citizens are in­volved will be turn­ing the Con­sti­tu­tion on its head, aban­don­ing democ­racy and re­ject­ing the Rule of Law. If left unchecked and un­fet­tered AFSPA can pose clear and present dan­ger to In­dia’s con­sti­tu­tional man­dates of free­dom, lib­erty and rule of law. This can­not be coun­te­nanced and AFSPA must go. It should ei­ther be re­pealed by Par­lia­ment as rec­om­mended by Jus­tice Jee­van Reddy Com­mit­tee or pro­nounced un­con­sti­tu­tional by the Supreme Court. Writer is a for­mer Army and IAS Of­fi­cer

Sens­ing the dan­gers of the Act in 2005 it­self, a high-level com­mit­tee, headed by Jus­tice BP Jee­van Reddy of the Supreme Court tasked with re­view­ing the AFSPA un­am­bigu­ously, rec­om­mended its re­peal

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