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 It should either be repealed by Parliament as recommended by Justice Jeevan Reddy Com
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.
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