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Armed Forces Special Powers Act – Challenge to Democracy

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The Indian Constitution which came into force on 26th January 1950 guaranteed the Right to Life and the Equality before Law to the people of India along with social, economic and political justice, freedom of thought and expression on which Indian democracy thrives. These pillars of democracy on which India claims to be the largest democracy in the world were challenged with the enactment of a draconian and a anti-democratic law, the Armed Forces Special Powers Act (AFSPA), 1958 by the Indian Parliament on 11th Sept 1958 to suppress armed rebellion by the Nagas in the Naga Hills -Tuensang area of Assam. Though it was devised for a short period, the AFSPA remained enforced for the last five and a half decades, making a mockery of Indian democracy by violating the fundamental rights of the citizens in the North East and in Kashmir.

During the time of Partition, the Nagas under the Naga National Council (NNC) demanded independence from India. In 1955, the Indian army was moved in to crush the Naga independence movement which necessitated the enactment of AFSPA, 1958. The AFSPA, 1958 was simply modified and made into an Act of the colonial Armed Forces (Special Power) Ordinance, 1942, which was designed by the British to suppress anti-British agitations/activities during the Second World War.

The AFSPA, 1958 invested extraordinary powers on the Indian Army, even authorizing under section 4(a) a non-commissioned officer to shoot to kill any suspect; and under 4(c) anyone could be arrested without a warrant while under 4 (d) house breaking was permitted without a search warrant. The Act under section 6 ,also shielded the Armed Forces from prosecution by civil courts and thus enjoys blanket immunity for any murder or rape. Thus the AFSPA legitimized the army excesses, killings and sexual assault/abuses by the Indian Armed force in the conflict areas where the Act is enforced. The sweeping powers and the immunity enjoyed by the Indian Armed Forces under the AFSPA nullifies the Right to Life (article21) and Equality before Law(article 14 ) and in the process violates the Rule of Law which are guaranteed to the people by the Indian Constitution. The Indian Armed Forces operates without accountability and became a law into itself. By denying the fundamental rights of the people of these affected regions for decades, the AFSPA challenges the very basic pillars of the Indian democracy.

Till 1972, it was the prerogative of the State Govt. to declare an area disturbed and enforce the AFSPA, 1958. But by an amendment, in the same year, the power to declare an area disturbed and enforce the AFSPA was extended to the Central Govt. The AFSPA, which was promulgated to suppress the Naga rebellion in 1958, was soon used against the Mizos in 1966, against the Manipuris in 1980, against the Assamese and Kashmiris in 1990 and against the Tripuris in 1997. Delhi’s approach to these conflicts is colonial and militarist in nature. Instead of facing ideological challenges politically, the Indian State became authoritarian, opted strong arms tactics to crush these pro-independent movements. This prolonged counter-insurgency operations has led to deep disenchantment, alienating the people from the Indian mainstream. The continuous military atrocities had a dehumanizing effect and fear psychosis has gripped the people. The militarization of the Northeast and Kashmir has legitimized state terror and institutionalized unbridled state powers which finally undermined democracy in these regions. The suspension of the fundamental rights of the people of North East and Kashmir for such a long period exposed the double standard of the Indian State. A democracy can’t function properly in such conditions.

The army operation in Assam was launched on 28th November 1990, code named Operation Bajrang to crush ULFA which has demanded a sovereign Assam. The State Govt. was dismissed by Delhi and the largest military operation in post independent India mobilizing 30,000 soldiers begun. The Indian Armed Forces operated under the Assam Disturbed Areas Act, 1955 and under the AFSPA, 1958. The Indian armed forces under AFSPA operate to provide aid to the State civil administration. But in practice, the State Govt./Dispur were marginalized, its power encroached and the 4 corps Army Headquarters based at Tezpur became the real authority. The Indian Armed forces instead of aiding the State Govt. took over the power of the civil administration which led to mass arrests, torture, extrajudicial killings, fake encounters, disappearances of arrested persons, molestation, and rape of Assamese women.

Later, when the three tier Unified Command Structure was introduced in 1997 with the State Chief Minister/Chief Secretary as the head of the Command Structure, the operational part of the Indian Army was left out from the civil administration. Heady with by unbridled powers, the Indian Armed force became arrogant; its operational discipline declined and started behaving like an occupational army. There were reports of wide spread human rights violations across the state. Assam came virtually under military rule. The State police was made redundant.

The Indian army which is trained to guard International borders against external aggression is terrorising its own citizens internally. In the last 22 years of counter- insurgency operation against ULFA, about 12, 000 Assamese have lost their lives. But there is not a single instance of shooting down any Bangladeshi in Assam by the Indian Armed Forces ; whereas Pakistanis are shot along the western border. The Bangladeshi infiltration to India is massive, taking the form of an external aggression, changing the demography of the Northeast and hence more dangerous than a few Pakistani Jihadis entering Kashmir. The Bangladesh border is still open. That means, the Indian Armed Forces instead of killing the foreigners (Bangladeshis) are killing its own citizens in the name of security. The Indian Army instead of becoming a symbol of security became a symbol of terror to the Assamese people. The Indian state so far has spent about 1357.71 crores during the last 22 years(1990-2012) in counter -insurgency operations to eliminate about 12,000 Assamese and is one of the most counter-productive operation is post colonial India. The British had hardly killed 200 Assamese during its 121 years of colonial rule (1826-1947)of Assam. The Central government has a different policy and, ironically, the Indian Army has refused to operate in mainland India against the armed Maoist insurgency whose aim is to overthrow the Indian Parliamentary democracy. It is now clear that Delhi has a discriminatory policy for Northeast-Kashmir. Why this discrimination by Delhi? Are the people of Northeast- Kashmir regions not Indians?

Why the AFSPA should be repealed?

The AFPSA is undoubtedly a colonial and a black law .Any functional democracy can’t entertain such anti-democratic law and it has no place under the Indian democracy. From the time of its enactment since 1958, there have been continuous human rights violations under the Act. The AFSPA violates Indian law as well as International law. Moreover, the AFSPA has failed to serve the very purpose for which it was devised. The armed rebellion against Indian exploitation and domination spread from Naga Hills to the Lusai Hills (then a part of Assam), Manipur, Tripura, Assam, Meghalaya, Arunachal and Kashmir. The Indian State experimented the military option in Northeast and Kashmir but failed to crush these pro-independent movements .These conflicts are basically political and not merely a law and order problem. The only option left to the Central Govt. is political dialogue. If that is the case, then the AFSPA should be repealed and the army should be send to the barracks. The State police should be revamped and better equipped to tackle these internal conflicts along with political dialogue, which the Indian State is experimenting lately in a half-hearted manner. Way back in 2005, the Jeevan Reddy Committee which was constituted by the Central Government for suggestions/amendments of the AFSPA recommended repeal of the Act. The report was not debated in the Parliament.

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Armed Forces Special Powers Act – Challenge to Democracy

By: Hiranya Saikia Read time: 6 min