Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

ACHR REVIEW
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 5 January 2005
Index: Review/54/2005

 
Review of the AFSPA: Need for upholding primacy of the rule of law

The Asian Centre for Human Rights (ACHR) will tomorrow submit its 175 page study, “The AFSPA: Lawless law enforcement according to the law?” to the Committee to Review the Armed Forces Special Powers Act (AFSPA), 1958 set up the government of India on 8 December 2004. The report, apart from analysis of the illegality of the provisions of the AFSPA, contains specific recommendations.

Courtesy: www.telegraphindia.com

It took an unusual form of protest by some members of Meira Paibis who stripped in front of the Kangla Fort, then headquarter of the Assam Rifles on 15 July 2004 and an equally unprecedented civil disobedience movement in Manipur never seen in independent India to establish the Committee to Review the AFSPA. The protests were against the alleged extrajudicial execution of Thangjam Manorama Devi on the night of 11 July 2004 by the Assam Rifles personnel and the withdrawal of the AFSPA.

The AFSPA empowers the representative of the Central government, the governor to subsume the powers of the State government to declare “undefined” disturbed areas. It also empowers the non-commissioned officers of the armed forces to arrest without warrant, to destroy any structure that may be hiding absconders without any verification, search and seize without warrant and to shoot even to the causing of death. No legal proceeding against abuse of such arbitrary powers can be initiated without the prior permission of the Central government. 

The unusual form of protest by some members of Meira Paibis was an act of desperation to protest against the systematic denial of access to justice even for unlawful, intentional, arbitrary, summary and extrajudicial deprivation of the right to life. The third preambular paragraph of the Universal Declaration of Human Rights - “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” - is propethic about such situations.

The demand of the populace affected by the AFSPA to completely withdraw the Act is matched by the demand for its retention by the armed forces and the hawks. A section of the Apunba Lup, a congregation of 32 civil society organisations of Manipur leading the civil disobedience movement, called for a "public curfew" on 27 December 2004, the day Review Committee reached Imphal, to press its demand for complete repeal of the AFSPA. Other members of the Apunba Lup and the family members of Thangjam Manorama Devi however submitted their representations to the Review Committee. Immediately after the visit of the Review Committee to Manipur, General Officer Commanding in Chief (Eastern Region), Lt General Arvind Sharma in his first press conference at Kolkata on 3 January 2005 stated that the provisions of the AFSPA is “absolutely essential” to tackle insurgency in the country.

The mushrooming of the non-State actors and violations of the international humanitarian laws by them are realities of the North East India. There is no doubt that States have legitimate reasons, right and duty to take all due measures to eliminate terrorism to protect their nationals, human rights, democracy and the rule of law and to bring the perpetrators of such acts to justice. However, that does not give the right to the State to take away the right to life in an intentional and unlawful way or violate human rights given under the constitution and international law. There is also no doubt that the AFSPA has become the main symbol of domination and repression because of its sheer mis-use.

A reckless approach towards human life and liberty is counter-productive. It is in difficult and trying situations that the supremacy of the judiciary and the primacy of the rule of law need to be upheld. However, if the law enforcement personnel stoop to the same level as the non-State actors and perpetrate the same unlawful acts, there will be no difference between the law enforcement personnel and the non-State actors whom the government calls “terrorists”. People will take law into their hands and a vicious cycle of violations will be created.

The review of the AFSPA is a long overdue for many reasons.

First, the AFSPA has manifestly failed to contain, let alone resolve, any insurgency in the North East. When the AFSPA was imposed on 8 September 1980, there were only four armed opposition groups in Manipur – the United National Liberation Front, People's Revolutionary Party of Kangleipak, People's Liberation Army, and National Socialist Council of Nagaland.  However, today there are over two dozens armed opposition groups including the Kanglei Yaol Kanba Lup, People's United Liberation Front, North East Minority Peoples Front, Islamic National Front, Islamic Revolutionary Front, United Islamic Liberation Army, Kuki National Army, Kuki National Front, Kuki Revolutionary Army, Zomi Revolutionary Army and the United Kuki Liberation Front, among others.

Second, there are adequate laws to deal with insurgency situations and the non-State actors. While India did not have specific laws in 1958 to deal with armed opposition groups, it has subsequently adopted numerous draconian laws such as the Terrorist and Disruptive Activities Prevention Act, 1985 and the Prevention of Terrorism Act (POTA), 2002. After the lapse of these laws, the government of India amended the Unlawful Activities (Prevention) Act of 1967 in December 2004 to incorporate the provisions of the POTA 2002. The Unlawful Activities (Prevention) Act of 1967 as amended in 2004 is adequate to deal with all insurgent groups and their unlawful activities.

Third, the strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences against the innocents and punishment for breaches of such provisions while exercising executive powers; and not in providing the arbitrary powers to the law enforcement personnel to be law unto themselves. The AFSPA violates basic tenets of criminal justice system in any civilized society – first by providing special powers which tantamount to awarding heavier penalty to the suspect than a convicted person would get under normal court, a clear violation of the cardinal principle of criminal justice system - nullum crimen, nulla poena sine lege [1] and second, through non-application of due process of law which makes the armed forces to be their own judge and jury. Most importantly, by making its mandatory to seek prior permission of the Central government to initiate any legal proceedings against armed forces, the Executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious or frivolous.

Though, there is no need for retention of the AFSPA, the Review Committee appears to have already decided to retain the AFSPA with some amendments. It has called for representation on whether it should recommend to the government of India to “(i) amend the provisions of the Act to bring them in consonance with the obligations of the Government towards protection of Human Rights; or (ii) replace the Act by a more humane legislation.” Both the proposals have the same end – the retention of the Act.

In order to uphold the supremacy of the judiciary and primacy of the rule of law, the Review Committee must ensure that judgements of the Supreme Court of India and opinions of international bodies including the United Nations Human Rights Committee on the AFSPA must be incorporated in the amended AFSPA. Leaving it to armed forces to respect “Do's and Don'ts" issued by the army authorities as naively espoused by the Supreme Court of India in its controversial judgment on the constitutional validity of the AFSPA on 27 November 1997 and to the courts to decide “case by case basis” have proved to be inadequate, ineffective and counter productive.

The AFSPA was brought to tackle the Naga problem and it was supposed to have been in operation only for one year. After 45 years, the Naga problem is far from resolved. The peace process between the government of India and Naga armed opposition groups – both Issac-Muivah and Kaplang factions of the National Socialist Council of Nagaland – since 1997 stresses the axiom that political problems cannot be resolved by merely terming it as law and order problem such as arson, murder, loot, dacoity – crimes which are more associated with mainland India’s Uttar Pradesh, Bihar and Madhya Pradesh. The outcome of the review will be critical for the future relationship of the North East with the mainland India.


[1] . nullum crimen means no crime without a law and nulla poena sine lege means no punishment without law (http://www.nullapoena.de/en/)

© Copy right 2003, Asian Centre for Human Rights, C-3/441-C, Janakpuri, New Delhi-110058, India