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Suhas Chakma Director, Asian Centre for Human Rights

The Central Government's recent decision to form an expert group to look into the "legal, constitutional and moral" aspects of the Armed Forces Special Powers Act (AFSPA) in Manipur is a step in the right direction. 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 federalism in 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. In the original version of the AFSPA of 1958, only the state governments had the power to declare an area as disturbed consistent with Article 246 of the Constitution to be read with the 7th Schedule 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 Centre. Therefore, under the AFSPA, the Centre 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.

Section 4(a) of the AFSPA empowers non-commissioned officers to "fire upon or otherwise use force, even to the causing of death" which basically provides the license to kill. 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.

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 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 equally problematic. Often arrests without warrant lead to torture and other human rights violations including extrajudicial killings. Similarly, search without warrant has been one of the main causes of alienation of the people of the Northeast.

The most problematic area is virtual impunity given under Section 6 of the AFSPA as "no prosecution, suit or other legal proceedings" can be instituted, except with the previous sanction of the Centre. The Assam Rifles personnel questioned the jurisdiction of the Upendra Commission of Inquiry into the death of Manorama Devi on the ground that Manipur Government had not taken prior permission f

In any case, prosecution of Government officials also requires permission from the concerned State or Central Government under Section 197 of the Indian Criminal Procedure Code. If the Centre were to give permission under section 197, there is no reason as to why the same will not be accorded under AFSPA. Section 197 of the CrPC amended in 1991 to provide immunity to the security personnel in Punjab has overtaken Section 6 of the AFSPA of 1958. The inability to prosecute police personnel in Andhra Pradesh for fake encounter killings is self-explanatory.

The Manipur commandos, under direct control of the State Government, are equally repressive. The killing of RK Sanjaoba, nephew of a former Chief Mister, on October 20, is a clear example. The Centre has recently decided to increase the number of Manipur Commandos from 800 to 1800 for counter-insurgency operations in the hill districts of Manipur. There is no need for the AFSPA for their deployment. The review can help reduce alienation but human rights situation on the ground is unlikely to change as local commandos combat the insurgents. At the end of the review, the power to declare an area disturbed may turn out to be most important for the Centre. No exit from the quagmire!
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