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India’s AFSPA: Emergency lite?

by South Asia Human Rights Documentation Centre, 23 July 2009

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Human Rights Features (Asia - Pacific Human Rights Network)

Is it surprising that every bit of heartbreaking news from the Kashmir Valley and northeast India is followed by an outcry against the uniformed forces in those regions, and by extension, the Armed Forces Special Powers Act?

The Shopian rapes and murders may or may not have been committed by members of the Indian armed forces. However, such has been the stranglehold of the Act on these regions, so reviled its provisions, and so hollow the promises of redress, that every outpouring of grief and rage is inevitably directed at this piece of legislation. The AFSPA is a power tool imposed by law, to be used at will, no questions asked. What will it take to cast off a law that has made not a dent in the problems it was intended to resolve, but has only imposed the brutal might of the State on angry, besieged populations?

In 2000, it prompted a 24-year-old Irom Sharmila to begin a hunger strike that has now lasted more than eight years. During this time, she has been almost continuously detained and force-fed by a State unable and unwilling to look at the larger cause that drives the personal and apparently futile struggle of this stubborn young Manipuri woman. Its horror is synonymous with the rape and murder of Thangjam Manorama in the custody of the Assam Rifles, and the subsequent poignant protest by Manipuri women who sought to shame the Indian State into action.

And the near impossibility of redress is continually brought to light, most recently in the Supreme Court decision in Masooda Parveen v. Union of India, in which the Court leaned in favour of ’feasibility’ and ’practicability’ as against strict conformity to guidelines laid down in an earlier case.

How extraordinary

The AFSPA, it may be argued, is more than an emergency provision. It violates the right to life and further suspends the Constitutional right to file suit. An officer shooting to kill, because he is of the opinion that it is necessary, does not conform, even prima facie, to the Article 21 Constitutional requirement that the right to life cannot be abridged except according to procedure established by law.

Further, emergency rule can only be declared for a specified period of time, and the President’s proclamation of emergency must be reviewed by Parliament. The AFSPA is in place for an indefinite period of time and there is no legislative review. In fact, the declaration that an area is disturbed essentially amounts to declaring a state of Emergency but by-passes the Constitutional safeguards. This point was raised as early as 1958, during the Parliamentary debate that led to the adoption of the Armed Forces (Assam-Manipur) Special Powers Act. Dr. Krishnaswami (Chingleput) argued that the provisions of the Bill were outside the powers granted in the Constitution, since it meant declaring a state of Emergency without following the Constitutional provisions for such a declaration. He argued that the Bill would take away the state’s power by bringing in the military. The Speaker responded that this did not take away the state’s power, rather it gave the states more power because it allowed them to decide to "hand over thoroughly, entirely and completely to the Armed Forces". This argument is curious, frightening and circular - the Speaker was saying that the states are given more power because they are now able to freely hand over their power. And because this was explained as granting power to the states, no Presidential proclamation was necessary (the proclamation is only made when a state’s powers are restricted). The emergency provisions in the Constitution were thus cleverly by-passed.

Judicial indifference

The excessive powers granted to security forces under the AFSPA also appear to have failed to move the Supreme Court of India. In May 2007, in Masooda Parveen v. Union of India, the Supreme Court undercut its own 1997 ruling in Naga People’s Movement of Human Rights (NPMHR) v. Union of India. In NPMHR, the Supreme Court upheld the constitutionality of the AFSPA but placed various checks on the armed forces’ exercise of power under the Act. Specifically, the Court rejected the petitioners’ argument, which was that the AFSPA was unconstitutional because it transferred to the armed forces full power to maintain public order in a disturbed area whereas the Constitution only permits Parliament to enact laws relating to the ’use of the Armed Forces in aid of civil power’. But in rejecting this argument, the Supreme Court also held that the ’in aid of civil power’ clause mandated the continued existence and relevance of the authority to be aided. Under the AFSPA, therefore, the armed forces cannot ’supplant or act as a substitute’ for a state’s civilian authorities in the maintenance of public order, but are strictly required to act in cooperation with them. Ten years later, in Masooda Parveen v. Union of India, the Supreme Court however echoed the Army’s argument that the recovery of arms and ammunition from the arrestee was an "apparent.first priority" that took precedence over the transfer of custody to civil police forces because "to cause any delay could lead to a failure of the operation". The arguments accepted by the Court were alarmingly similar to those used by both the army and the Government to justify human rights abuses that are facilitated by the vast, broad provisions of the AFSPA.

’Too sketchy, too bald, too vague’

The Act, or at least part of it, has been officially recommended for repeal by a government-appointed committee and also by the Second Administrative Reforms Commission that was then headed by Mr. Veerappa Moily, now Law Minister in the central government. In November 2004, a five-member committee, chaired by a former judge of the Supreme Court, Justice B.P. Jeevan Reddy, was set up to review the AFSPA in the context of its application to the northeastern states of Assam and Manipur. This was in the wake of an intense agitation by civil society groups in Manipur following the death of Thangjam Manorama on 11 July 2004 while in the custody of the Assam Rifles, a paramilitary force.

The Committee observed that the Act was "too sketchy, too bald and quite inadequate in several particulars." While it acknowledged that the Act was held constitutional in the NPMHR case, it asserted that "constitutional validity...is not an endorsement of the desirability or advisability of the Act." The recommendation further described the Committee’s impression that the Act had become a "symbol of oppression, an object of hate and an instrument of discrimination."

The Committee concluded that the AFSPA be repealed with appropriate provisions being inserted into the existing and generally applicable Unlawful Activities (Prevention) Act, 1967. This could be problematic if such incorporation was not assessed carefully; nevertheless, the removal of the most egregious provisions, such as the power to shoot-to-kill on suspicion, would be a useful first step. The Committee also suggested the creation of "Grievances Cells" located in the premises of the District or Sub-Divisional Magistrates in every state where the Armed Forces are deployed whereby citizens can acquire information on the whereabouts of missing persons within 24 hours. Additionally, the Committee insisted on a periodic review every six months, with any extension of deployment approved by both Houses of Parliament.

The Committee’s recommendations were presented to the Prime Minister and the Central Government in June of 2005, seven months after review began. While supported by the Administrative Reforms Commission and the United Nations, in the four years since the recommendations, there has been no official acceptance or government action.

Administrative Reforms Commission

In June 2007, the Second Administrative Reforms Commission (ARC), chaired by Mr. M. Veerappa Moily, now the Union Law Minister, published its fifth report on Public Order. The Commission of Inquiry was set up by the President to prepare a detailed blueprint for revamping the public administration system. A review of the AFSPA was included as part of the report’s Chapter entitled Constitutional Issues and Special Laws.
In its assessment, the ARC took into account the conclusions in the NPMHR judgment recognizing the constitutionality of the Act and the imposition of a periodic review.

The ARC report relied heavily on the findings of the Review Committee chaired by Justice Reddy that ultimately the AFSPA should be repealed and appropriate provisions inserted into the UAPA. The ARC’s recommendations support those of the Review Committee with the exception that that the proposed addition made to the UAPA incorporating the provisions governing the deployment of armed forces of the Union in aid of civil power would only apply to the northeastern states. The Commission’s recommendation was submitted to the Government of India on 1 June 2007 and met with immediate resistance from the Defence Minister A.K. Antony. Mr. Antony rejected the ARC’s recommendation, stating the time had not come to scrap the law, adding, "but there is always scope for improvement".

Act now

The Prime Minister has assured more than once that he is willing to replace the Act in the northeastern states with a "more humane" law. The Chief Minister of Jammu and Kashmir has pledged to repeal the Act in his state. And the Home Minister, following his recent visit to Jammu and Kashmir, acknowledged that the AFSPA and the security presence in the Valley had taken up a large part of his discussions with the Unified Command.
It is clear that the AFSPA has to go. Its brutality has been recognized by no less than the prime minister. If the repeal takes place now, it will assuage a number of grievances, reassert India’s commitment to the rule of law, and provide space for the "political solutions" that the Home Minister looks forward to.

If it is saved for another day, it might inspire more Irom Sharmilas than the State can handle.