|
Review
of AFSPA: Too Little, Too Late
The
suggestion of the government of India on 2 November 2004 for formation
of an expert group to look into the "legal, constitutional
and moral" aspects of the Armed Forces Special Powers Act (AFSPA)
after meeting with the leaders of Apunba Lup, an apex body of 32
organisations involved in the agitation demanding withdrawal of
the Act in Manipur, is a step in the
right direction. While the hawks will continue to question the decision
of the government of India, it is essential to realise that the
AFSPA has not been able to resolve a single insurgency problem since
its adoption in 1958. When the AFSPA was imposed in Manipur in 1980,
there were four armed opposition groups. Today, there are over two
dozens armed opposition groups.
The
AFSPA has as much to do with draconian special powers accorded to
the security forces as it has to do with the federal structure of
the country. Unless an area is declared disturbed under Section
3 of the AFSPA, the central security forces cannot legally come
in aid of civil administration. Under Section 3 of the AFSPA, the
authorities only need to be "of the opinion that whole or parts
of the area are in a dangerous or disturbed condition such that
the use of the Armed Forces in aid of civil powers is necessary."
There is no definition of what constitutes “dangerous or disturbed
condition”. The declaration depends on the satisfaction of the Government
officials and it is not subject to judicial review. In the original
version of the AFSPA of 1958, only the state governments had the
power to declare an area as disturbed. This was consistent with
Article 246 of the Constitution of India to be read with the 7th
Schedule of the Constitution of India which places “law and order”
under the State’s list. The 1972 amendments to the AFSPA took away
the power from the State government and its legislative Assembly
and handed it over to the Governor, an appointee of the Central
Government. Therefore, under the Armed Forces Special Powers Act,
the Central government subsumes the powers of the State governments
to declare certain parts or whole of a State or Union Territory
under emergency without having to resort to the strictness required
under the Article 356 of the Constitution of India for declaration
of public emergency. On 28 May 2004, Manipur government decided
to extend the disturbed area status for the whole of Manipur for
a further period of six months under the AFSPA reportedly under
the pressure of the central security forces.
The
extraordinary powers awarded to the non-commissioned officers under
the Act have made it a symbol of oppression. Section 4(a) empowers
non-commissioned officers to “fire upon or otherwise
use force, even to the causing of death” which basically provides the license to kill. On this issue, it is essential
to note, over 20,000 people have been killed since the AFSPA was
imposed in 1980 in Manipur. There are hundreds of armed encounters
each year. Not every armed encounter is questioned. However, when
people, whether innocent civilians, suspects or members of armed
oppositions groups are captured from their houses or villages and
routinely killed in fake encounters, allegations of extrajudicial
killings surface. Extrajudicial executions have contributed to the
sustenance of insurgency in the North East.
While
no legitimate question is ever raised when security forces “destroy any arms dump, prepared or fortified position
or shelter from which armed attacks are made” while exercising powers under clause 4(b) of the APSPA, the powers to shoot where absconders may be hiding is legally untenable. The Supreme
Court in its various judgements held that “absconding by itself
is not conclusive either of guilt or of a guilty conscience”. The
presumption of innocence against the absconders is not respected
under the AFSPA. In the name of absconders, the armed forces have
destroyed homes, schools, and even churches. Every home in the North
East is looked upon with suspicion and as a place from where armed
attacks can be made.
The
power to make arrest without warrant under section 4(c) of the AFSPA
on the suspicion that the accused “has committed or is about to
commit a cognisable offence” is more problematic. The issuance of
arrest memo is not adequate and warrant prior to arrest is indispensable.
Often arrests without warrant lead to torture and other human rights
violations including extrajudicial killings. Similarly, search without
warrant under section 4(d) of the AFPSA has been one of the main
causes of alienation of the masses.
Section
6 of the AFSPA provides that "No prosecution, suit or other
legal proceedings shall be instituted, except with the previous
sanction of the Central Government against any person in respect
of anything done or purported to be done in exercise of powers conferred
by this Act." The central security forces have stretched these
provisions to claim all forms of immunity. During the inquiry into
the death of Manorama Devi by Justice Upendra Commission of Inquiry,
the Assam Rifles personnel questioned the jurisdiction of the Commission
on the ground that the State government had not taken prior permission
from the Centre. However, Upendra Commission of Inquiry was not
initiating any prosecution and summoned the concerned Assam Rifles
personnel as mere witnesses to find out the truth. In addition,
prosecution of State and Central government officials, as the case
may be, requires permission from the concerned State or Central
government under Section 197 of the Indian Criminal Procedure Code
adopted in 1991. Section 197 of the CrPC makes Section 6 under the
AFSPA redundant. If the government were to give permission under
section 197 of the CrPC, there is no reason as to why the same permission
will not be accorded under Section 6 of the AFSPA. The regime of
impunity has been put in place by the Central government under Section
197 of the CrPC.
Manipuris
and the civil society groups know that the Manipur commandos and
Indian Reserve Battalions personnel who are under direct control
of the State government are as repressive as the Central Security
Forces. The killing of RK Sanjaoba by four Manipur police personnel of Patsoi police station
at 10.30 a.m on 20 October 2004 at Sagol-band Khongnang Hogaibi
in Imphal is a clear example. The Central security forces
are often unaware of the terrains and often guided by the State
security forces in their counter-insurgency operations.
The
Central government has already decided to gradually hand over security
issues to the State government by raising numerous State para-military
forces to replace the Central security forces. There is no need
for enactment of special laws for deployment of the State’s para-military
forces to combat the insurgents and the battle lines are changing.
The review of the AFSPA might as well be too little, too late as
the North East continues to be caught in the insurgency quagmire.
|