REPEAL

Armed Forces (Special Powers) Act -- AFSPA

The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the heinous draconian legislations that the Indian Parliament has passed in its history. In a brief discussion that lasted for merely three hours in the Lok Sabha and for a paltry four hours in the Rajya Sabha, the Parliament approved the Armed Forces (Assam- Manipur) Special Powers Act with retrospective from 22 May 1958.

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 n

on-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’. Section 6 of the AFSPA provides them with absolute impunity for all atrocities committed under the AFSPA. A person wishing to file suit against a member of the armed forces for abuses under the AFSPA must first seek the permission of the central government. This basically vests complete impunity to the armed forces.

This Act gives a complete carte blanche to the security forces and not surprisingly it has been severely abused and misused in various conflict areas of northeastern India. For example in Kohima in 1995, the Rastriya Rifles mistook the sound of a tyre-tube burst from their own convoy as a bomb attack and began firing indiscriminately in the town. The firing lasted for more than one hour, resulting in the death of seven innocent civilians (including two girls aged 3 ½ and 8 years old), 22 were also seriously injured.

Similarly, special anti-terrorist legislations like POTA and Unlawful Activities (Prevention) Amendment Act, 2005 have created a politico-legal system that encourages abuse by security agencies. POTA was extensively abused to victimize the minorities and other marginalized sections of the society as is evident from its selective use against the accused persons in the Godhra case. At the time of its repeal, more than 500 cases of POTA were pending in Gujarat alone and all against religious minorities. It was also widely misused for political vendetta as demonstrated by the arrest of MDMK leader, Vaiko by the Tamil Nadu police on extremely flimsy grounds. It must also be noted that the cases registered under the Act subsist even after the repeal of the Act.

The UAPA Act, which came after the abolition of POTA, is a virtual replica of its infamous predecessors. It retains almost all the infamous provisions of POTA like the wide and open-ended definition of terrorism, and the provisions on terrorist organization and guilt by association. In addition, it has explicably added a new chapter on “terrorist organizations” when the original Unlawful Activities (Prevention) Act had an elaborate framework for outlawing “unlawful organizations”. Such a declaration was to come into effect only after confirmation by a tribunal consisting of a high court judge. The absence of similar safeguards in the new statute is extremely critical and paves the path for several abuses.

The AFSPA has sparked widespread and repeated protests against its brutalities and abuses in various conflict areas. There were massive protest campaigns in Manipur in 2004 against the Act after the “rape and killing” of Ms Manorama Devi allegedly by the security forces. The Government of India tried to quell the mounting moral and political pressure by constituting a Committee to Review the Armed Forces Special Powers Act.

In October 2006, the human rights community in India was surprised at the disclosure by The Hindu newspaper in which it reported that it had managed to secure a copy of report by Armed Forces (Special Powers) Act (the Commission). The Commission, established by central government in November 2004, and headed by Retired Justice B.P. Jeevan Reddy, presented its report to the Government in June 2005. Since then the human rights community had tirelessly called for its findings to be released officially.

One positive aspect of the Commission’s recommendations is that the Commission calls for repealing the Armed Forces (Special Powers) Act (AFSPA). In addition, the Commission recommends that some of the excessive powers granted to the armed forces under AFSPA be abolished - for instance, the authority to use lethal force against any person contravening laws or orders “prohibiting the assembly of five or more persons”. The legislation proposed by the Commission also includes the “Do’s and Don’ts” attached to AFSPA, and rendered binding law by the Supreme Court, and which impose certain restraints on the behaviour and powers of soldiers deployed under the Act.

Armed Forces Special Powers Act must be understood as an instrument through which the Indian State has ignored political solutions to the questions of autonomy in the region and instead, resorted to increased militarisation to curb all such struggles. There is a need for the human rights community and civil society organizations to view the organic linkages between AFSPA and underpinning questions of impunity, militarization, and pervasive undermining of democracy in North East and Kashmir.

There is an urgent need to demand:

· Unconditional Repeal of AFSPA; and non-retainment of any part of the Act.

· Repeal UAPA

· Rigorously protect the civilian population from violent crimes, including terrorism, and prosecute suspected criminals within the framework of criminal law in conformity with international human rights law and standards;

· Unless war breaks out, ensure that the armed forces operate under strict control of civilian authorities, and are not granted any powers beyond those of civilian law enforcement agencies.

· Amend Section 19 of the Protection of Human Rights Act which prohibits the NHRC and State Human Rights Commissions from independently investigating allegations of human rights violations by the armed or paramilitary forces personnel.

ASIAN HUMAN RIGHTS DEFENDERS NETWORK