Dr. K. Hoshi, Phek Town
The problem with AFSPA was not the law in itself. The problem was its misuse and the tendency to misuse the law on non-combatant innocent civilians by armed forces. The problem was with the negative psyche of the Indian armed forces. Whenever any Indian soldier was killed by the militants, the Indian soldiers go berserk on civilians. That was the problem.
None can deny that not all Indian armed forces were bad. But generally speaking, there couldn’t be any exceptions as far as the atrocities perpetrated were concerned. The Indian armed forces were collectively responsible in which, individual and sporadic justification had no place.
No amount of justification can undo the devilish actions perpetrated on non-combatant innocent civilians. No justification can bring back the lives killed under AFSPA. The Indian soldiers of today may be more sensitive on human rights issues but it didn’t change the past terrors of Indian armed forces. There might be justification on the basis of life for life between the militants and Indian armed forces personnel.But there can never be justification for killing the innocent civilians by misusing AFSPA. The only way to heal those wounds is for Indian Armed forces of present day to admit and accept the past wrongs done in its right perspective.
The interpretation of Disturbed Area Act and AFSPA, 1958 are not privy to experts only. It is open to all citizens.
Powers to declare areas as disturbed area - Declaration of an area or an entire State as disturbed area is a pre-requisite for operation of the provisions of AFSPA. What qualifies the area of a State or the whole State to be declared as disturbed is vague. The definition of “disturbed or dangerous condition” has not been elaborated in the Act.
This leaves a lot of room for its misuse.
“in aid of the civil power, for the maintenance of public order”; “in contravention of any law or order” – it is clear from all these phrases that contrary to what has been generally believed, the imposition of AFSPA, 1958 was not primarily to safeguard national security from external threat with the aid of secessionists. It was basically for maintenance of public order in aid of the civil power when that civil power is unable to do it alone. AFSPA was imposed in Nagaland in the belief that the Naga nationalists (NNC) were threatening national security by aiding external forces to destabilize the nation and by creating law and order problem internally.
For threats from internal disturbance(s), Article 365 gives power to the Central Government to step in when there is break-down of administrative machinery of a State causing law and order problem.
This leaves no room for application of AFSPA in such case(s). It is grossly improper to use AFSPA as law and order machinery. To aid civil power meant that, AFSPA operations were to be carried out on executive decision and not on military order.
“after giving such due warning” – in the operation of AFSPA, warnings were seldom given to the person when his person or house was to be searched.
“fire upon or otherwise use force, even to the causing of death” – To cause death is a violation of the “Right to life as enshrined in Article 3 of the Universal Declaration of Human Rights”.
Article 21 of the Constitution of India states; “No person shall be deprived of his life or personal liberty except according to procedure established by law. It appears that the unbridled power of AFSPA has its root in this exceptional provision.
AFSPA violates the fundamental rights of a citizen. Fundamental rights are charter of rights contained in Part III of the Constitution of India. It guarantees civil liberties to its citizens. Taking cognizance of past incidents of harassment and torture, both physically and mentally, AFSPA encroached upon personal liberties.
An innocent civilian harassed under AFSPA;
• was deprived of equality before law (Right to equality violated).
• was gagged from freedom of speech and expression. He was threatened from talking. He is prohibited from freedom of assembly (Right to freedom violated).
• was deprived from freedom to practice his religion as he was unable to attend his place of worship due to physical incapacitation from injury or because, his place of worship was destroyed. (Right to freedom of religion violated)
• was deprived of this right till AFSPA is repealed (Right to constitutional remedies violated).
• was deprived of this right as she was raped and he was sodomized by armed forces beyond human dignity (Right to life violated)
• was deprived of these rights as he was unable to attend his school/college due to injuries, physical and mental, caused to him (Right to education violated).
Rights to life and personal liberty are the most precious fundamental rights of a citizen. Articles 21 and 22 of the constitution of India seek to secure these rights. AFSPA is a negation of this promise.“in the disturbed area prohibiting the assembly of five or more persons” – this implied that AFSPA operation is qualified only in a curfew situation under Section 144 Cr.PC. In many instances, that was not so.
“arrest without warrant” – the requirement of a warrant officer of the armed forces as stated in the first para of Clause 4 and “arrest without warrant” are self-contradictory.
“suspicion”, “is about to commit a cognizable offence” – In many cases, the suspicions proved to be grossly wrong. Such wrongs were used as cover up for false encounters and the kill for gallantry awards.
“enter and search without warrant any premises” – This is an encroachment of personal liberty and more so, when no warning was given as required by the provision of AFSPA. Armed forces on AFSPA duty are there to aid the civil power. Therefore, to enter and search without warrant from civil power is nothing short of usurping its
powers. To aid civil power emphatically meant that armed forces are placed under civil power and not over civil authorities.
“the person so arrested should be handed over to civil authorities in the nearest Police Station with least possible delay” - No time-frame was specified though within 24 hours has been accepted as the norm.
Death, before being handed over to Police was not uncommon.
“No prosecution, suit or other legal proceeding shall be instituted except with previous sanction of the Central Government” - this is a license to kill, rape, torture and tell a lie by armed forces. In other words, armed forces were untouchable no matter how grave their crimes were under AFSPA. Such supernatural law exist nowhere in democratic or civilized countries.
All these interpretations proved that AFSPA is undemocratic, unconstitutional, illegal and inhumane.
Undemocratic in that; AFSPA depicts a junta government, a government by the army and a state of emergency when all civil liberties are suspended.
Unconstitutional in that; AFSPA violates the constitutional guarantees to the citizens of India under various sections. AFSPA was imposed to aid civil power for maintenance of public order. Today, threat to life of security personnel from militants has become the lone rallying point to continue this draconian law. Refusal to repeal AFSPA has been dictated more by military than political decisions. Military decisions have a tendency to usurp the constitution as manifested in countries under military rule.
In other parts of India, the role of armed forces to aid the civil administration to control law and order problem rests on the concurrence of the State governments. In AFSPA operative states, the Union government takes precedence based purely on allegation of anti-national activities by militants. That is constitutional discrimination.
AFSPA is against the very spirit of the constitution. AFSPA in peace time situations like bilateral ceasefire is condemnable because it is liable to misuse on slightest pretext.
Illegal in that; killings under AFSPA are extra-judicial. Immunity from judicial proceedings against armed forces tantamount to legalizing illegality. All human beings are equal in the eyes of law.
Any law which discriminates a citizen on ground of job position (armed forces) and circumstantial situation (AFSPA) is an abetment of law.
Inhumane in that; shoot to kill any suspect as provided in AFSPA showed total disregard to human life. It treated humans even worse than animals. AFSPA is a sign of total insanity. AFSPA is an epitome of the demon out of the frantic armed forces. Doesn’t the suspect deserve better? Death sentence in India requires the sanction of the President after series of trials in the court(s) of law, whereas in AFSPA, the executions were instant. In essence, it gives supreme power to a non-commissioned officer, even greater than that of the President of India.
AFSPA suspect is treated as a traitor; a threat to the security of India. How is he ifferent from other national traitors in other parts of India? A traitor is a traitor irrespective of the place of occurrence and circumstance. Then how was it that a traitor in other part of India was given fair trial while the alleged traitor under AFSPA were shot dead without trial?
Euthanasia (mercy killing of terminally ill patients) is illegal in India. Innocent civilians were mercilessly killed under AFSPA. These are sharp contrast laws.
It is true that when it comes to life, there’s no difference between the Indian soldier and insurgent. The great similarity is also that, the threat perception at personal level for both the insurgent and Indian soldier is same. Both of them had the order to shoot to kill.
Legally, Indian soldiers may have advantage because of the guaranteed immunity. But in terms of humanism and human rights, AFSPA doesn’t put the Indian soldier on any advantage.
AFSPA foments and not contains anti-national activities because of its blatant misuse on non-combatant innocent civilians. It has been proved counter-productive. The action of armed forces and reaction of those inflicted revolves in vicious cycle. AFSPA throws Indian armies in poor light because AFSPA has become synonymous with the demonic side of Indian armed forces.
Today, the Indian soldiers may be better informed on human rights issues through sensitization programs. But the threat to AFSPA’s misuse can never be totally eliminated because the large majority of armed forces are either still not sensitized or are not sensitizable because of their level of education.
So long as AFSPA is operative, Northeast India and J & K will continue to be alienated emotionally. There will never be total emotional integration of India in these states.
Repealing AFSPA will make India greater, more humane and make democracy in India wholesome. AFSPA also should be part of the Govt.’s exercise to shed-off all colonial legacies.
Let better sense prevail on those who defend or justify AFSPA.
