AFSPA (Armed Forces Special Powers Act, 1958) A Review

REVIEW OF THE AFSPA

(An analysis of the draconian Armed Forces Special Powers Act, 1958)

Introduction

After the alleged extrajudicial execution of 32-year-old, Ms Thangjam Manorama Devi following her arrest as a suspected member of the Peoples Liberation Army (PLA) by the Assam Rifles personnel at 3.30 a.m. on 11 July 2004, Manipur faced unprecedented civil disobedience over the demand for removal of the Armed Forces Special Powers Act (AFSPA), 1958. Modeled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the AFSPA empowers non-commissioned officers to search without warrant, arrest without warrant and shoot even causing of death. The security forces enjoy virtual impunity for any excesses while exercising these unrestrained powers as no one can be prosecuted without the prior permission of the Central government.

As a response to the civil disobedience movement led by the Apunba Lup, the Government of India has set up the “Committee to Review the Armed Forces Special Powers Act, 1958”.

This paper examines the illegality of the provisions of the Armed Forces Special Powers Act.

Section 3: Undeclared Public Emergency

Section 3 of the Armed Forces Special Powers Act, 1958 provides that:

“If in relation to any State or Union Territory to which this Act extends, the Governor of the State, or the Administrator of the Union Territory, or the Central Government in either case, is of the opinion that the whole or any is in such a disturbed or dangerous condition that the use of Armed Forces in aid of civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area”.

The process of declaration of emergency under the Armed Forces Special Powers Act, 1958 as amended in 1972, violates the provisions of the Constitution of India and International Covenant on Civil and Political Rights to which India is a party.

Domestic Law:

Under the AFSPA, the authorities only need to be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary." There is no definition of what constitutes “dangerous or disturbed condition”.

The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case (AIR 1983 Del 513). The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, it is not subject to judicial review.[1]

The Disturbed Areas (Special Courts) Act, 1976, however, provides a clear definition. Under the Disturbed Areas (Special Courts) Act of 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.[2]

In the original version of the Armed Forces Special Powers Act of 1958, only the state governments had the power to declare an area as disturbed. This was consistent with Article 246 of the Constitution of India[3] to be read with the 7th Schedule of the Constitution of India 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 an appointee of the Central Government. This is despite the fact that President can proclaim emergency under Article 356 of the Constitution of India.

Therefore, under the Armed Forces Special Powers Act, the Central government subsumes the powers of the State governments to declare certain parts or whole of a State or Union Territory under emergency with having to resort to the strictness required under the Article 356 of the Constitution of India.

Indian judiciary has failed to uphold the provisions of the Constitution and federal nature of the country in areas relating to internal conflict situations.

The Supreme Court of India in its judgement of 27 November 1997 stated that[4]:

“(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution.

(7) Section 3 of the Central act does not confer an arbitrary or unguided power to declare an area as a 'disturbed area". For declaring an area as a 'disturbed area" under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union territory of the Central Government can from an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of civil power is necessary.

(8) A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.

(9) Although a declaration under Section 3 can be made by the Central Government suo motto without consulting the concerned State Government, but it is desirable that the State Government be consulted while making the declaration.

(10) The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.

(11) The conferment of the power to make a declaration under Section 3 of the Central Act of the Government is not violative of the federal scheme as envisaged by the Constitution”.

On 28 May 2004, the Okram Ibobi Singh government decided to extend the disturbed area status for the whole of Manipur for a further period of six months under the Armed Forces (Special Powers) Act, 1958 as it was due to expire on 31 May 2004.[5] It was reported that the security forces were against withdrawal of the AFSPA. Since 1980, Manipur has been under undeclared emergency.

International Law:

India is party to the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides under what circumstances state of emergency can be declared. It states,

“1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”

The United Nations Human Rights Committee, in its General Comment No 29 on Article 4, explains the circumstances under which measures derogating from the provisions of the Covenant may be taken. It states:

“Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency, which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers.”[6]

Article 4(2) of the ICCPR requires that certain rights may not be derogated from under any circumstances. The Human Rights Committee in its General Comment No. 29 further states:

“Article 4, paragraph 2, of the Covenant explicitly prescribes that no derogation from the following articles may be made: article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfill a contractual obligation), article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion). The rights enshrined in these provisions are non-derogable by the very fact that they are listed in article 4, paragraph 2. The same applies, in relation to States that are parties to the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty, as prescribed in article 6 of that Protocol. Conceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified. The reference in article 4, paragraph 2, to article 18, a provision that includes a specific clause on restrictions in its paragraph 3, demonstrates that the permissibility of restrictions is independent of the issue of derogability. Even in times of most serious public emergencies, States that interfere with the freedom to manifest one’s religion or belief must justify their actions by referring to the requirements specified in article 18, paragraph 3. On several occasions the Committee has expressed its concern about rights that are non-derogable according to article 4, paragraph 2, being either derogated from or under a risk of derogation owing to inadequacies in the legal regime of the State party”.[7]

The Human Rights Committee in its General Comment No. 29 further states:

“The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists. The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation”. [8]

In its General Comment No. 29, the Human Rights Committee developed a list of elements that cannot be subject to lawful derogation.[9] These elements include the

following: all persons deprived of liberty must be treated with respect for their dignity; the prohibition against hostage‑taking, abduction, or unacknowledged detention; the protection of persons belonging to minorities; the prohibition of unlawful deportation or transfer of population; and that “no declaration of a state of emergency … may be invoked as justification for a State party to engage itself … in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.”[10]

In any event, where derogation is invoked, there is an obligation under Article 4(3) to notify other States parties through the United Nations Secretary-General and to indicate the provisions from which a State has derogated and the reasons for such derogation.

Though Manipur has been under emergency since 1980, the government of India has not publicly declared a state of emergency but have taken emergency measures under the Armed Forces Special Powers Act, which derogate from treaty obligations in violation of the Article 4 of the ICCPR.

Not surprisingly, the United Nations Human Rights Committee while examining the third periodic report of India in 1997 held that India is in violation of Article 4.3 of the ICCPR. In its Concluding Observations after examination of India’s third periodic report, Human Rights Committee regretted that “some parts of India have remained subject to declaration as disturbed areas over many years - for example the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer - and that, in these areas, the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant”. Therefore, the Committee recommended that the application of these emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant.[11]

Section 4: Operation of the AFSPA

The operative clauses of the Armed Forces Special Powers Act, 1958 allow extrajudicial executions under section 4(a), destruction of properties and firing upon any absconder without any warning under section 4(b), arrest without warrant under section 4(c) and search and seizure without warrant under section 4(d).

A comparison with the relevant provisions of the Indian Criminal Procedure Code (CrPC) and Indian Penal Code (IPC) shows that the AFSPA violates the laws of the land.

Comparison of the AFSPA and Cr.PC. and IPC

Armed Forces Special Powers Act, 1958

Criminal Procedure Code, 1973/Indian Penal Code

1. Powers of Arrest

Sec. 4 Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-

(c) arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest;

41.When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

42.Arrest on refusal to give name and residence.- (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.

(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required:

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.

(4) (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction

2. Powers of search and seizure

4. Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that Purpose use such force as may be necessary.

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;

47.Search of place entered by person sought to be arrested.- (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance;

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

52.Power to seize offensive weapons.-The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested.

3. Power to open fire even to the extent of causing death

4. Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-

(a) if he is of opinion that it is necessary so to do for the maintenance of Public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

No specific right to open fire except what is given as under the following provisions of the Indian Penal Code–

76. Act done by a person bound, or by mistake of fact believing himself bound, by law
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

Illustrations
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.

(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

100. When the right of private defence of the body extends to causing death
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-

First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

Sixthly- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

4. Immunity from legal consequences

Sec. 6-Protection to Persons acting under Act – No persecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

45.Protection of members of the Armed Forces from arrest.- (1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

(2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

For understanding of the operation of the Armed Forces Special Powers Act, 1958 and extrajudicial executions under the Act, the operative clauses of Section 4 of the Act needs to be read and considered in reverse order. While section 4(d) of the AFSPA allows search without warrant, section 4(c) allows arrest without warrant. The armed forces are allowed to destroy properties without any verification under section 4(b). The lack of any record while conducting search, affecting warrants or destroying properties facilitate extrajudicial executions under section 4(a). Under Section 6 of the AFSPA, the armed forces enjoy virtual impunity as none can be prosecuted without the prior permission of the Central government.

Section 4(d): License to search without warrant:

Section 4 (d) of the Armed Forces Special Powers Act, 1958 provides,

“Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area,

enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property or any arms, ammunition or explosive substance believed to be unlawfully kept in such premises: and may for that purpose use such force as may be necessary.”

The search and seizure proceedings laid down in the Code of Criminal Procedure (CrPC) for the police are not followed by the armed forces. Yet, the Supreme Court of India in its judgement of 27 November 1997 while upholding the constitutional validity of the AFSPA assumed that the guidelines provided under the CrPC would be followed despite the myriad of instances where they were not.[12] The Supreme Court in its judgement of 27 November 1997 stated:

“(16) The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer in charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.

(17) The provision of Cr.P.C. governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.”

Section 4(c): License to arrest without warrant:

Section 4(c) gives the authorities the authorisation to:

“Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area, arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest;”

Under section 4(c), any one can be arrested on the mere suspicion that he/she is going to commit an offence. This violates provisions of the Indian Criminal Procedure Code and Article 22 of the constitution of India.[13]

The Supreme Court in its judgement of 27 November 1997 merely reiterates:

(15) A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.

The case of Luithukla v. Rishang Keishing, (1988) 2 GLR 159, a habeas corpus case, exemplifies the total lack of restraint on the armed forces when carrying out arrests. The case was brought to ascertain the whereabouts of a man who had been arrested five years previously by the army. The court found that the man had been detained by the army and that the forces had mistaken their role of "aiding civil power". The court said that the army may not act independently of the district administration. Repeatedly, the Guwahati High Court has told the army to comply with the Code of Criminal Procedure (CrPC), but there is no enforcement of these rulings. The provision violates the customary Indian Code of Criminal Procedure. Section 50(1) of the Code of Criminal Procedure provides that "Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest."[14]

Section 4(b): License to destroy property without verification

The next subsection reads:

if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;

Section 4(b) is in clear violation of the Indian Constitution. "The Supreme Court has laid down in judgement after judgement that absconding by itself is not conclusive either of guilt or of a guilty conscience."[15] The presumption of innocence against the absconders is not respected. In the name of absconders, the armed forces have destroyed homes, schools, and even churches. Every home in the North East is looked upon with suspicion and as a place from where armed attacks can be made"[16]

Section 4 (a): Lincense to kill

“Any commissioned officer, warrant officer, non- commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area, (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

This provision gives license to kill innocent and suspected persons under the disguise of maintaining law and order and violates provisions of national and international human rights law.

This provision of the AFSPA violates Article 21 of the Constitution of India. Article 21 provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law." The courts have explained that a "procedure established by law" under Article 21 is a procedure which is reasonable, fair and just.

"Does the honourable minister feel that this is the procedure, he can shoot if it is a disturbed area, that is the procedure established by law? He can shoot. Anybody can be killed or shot at, but is this procedure established by law, does it go to that extent? Article 21 says that no person can be deprived of his life. Here any person can be deprived of life by any commissioned officer, he can shoot." -- asked the Speaker of Lok Sabha on 18 August 1958 to the then Home Minister Mr G B Pant.[17]

One of the experts of the United Nations Human Rights Committee while examining the third periodic report of India in October 1997 stated, “The Indian delegation's arguments concerning the Armed Forces (Special Powers) Act were clear, but not wholly convincing. The delegation had said that rights were safeguarded because it was mandatory to obtain judicial permission before opening fire; that requirement, however, applied only in the case of illegal meetings and in all other circumstances the police could open fire at will. In addition, permission had to be obtained from the central Government before proceedings could be brought against members of the armed forces. According to the delegation, that permission was needed because in India anybody could initiate proceedings. His own answer to that argument was that in common-law countries there were other ways of preventing vexatious actions. He remained of the opinion that the requirement to obtain the central Government's approval was among the means of removing the army and the security forces from judicial control”.[18]

Article 3 of the United Nations Code of Conduct for Law Enforcement Officials stipulates under what circumstances the officials may use force. It states, Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. In its commentary it, further states

(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.

(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force, which is disproportionate to the legitimate objective to be achieved.

(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990, restrict the situations in which firearms should be used, and specify the intentional lethal use of firearms only when strictly unavoidable in order to protect life.

“9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:

(a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

(c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;

(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;

(e) Provide for warnings to be given, if appropriate, when firearms are to be discharged;

(f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.

Yet the Supreme Court of India in its judgement in the case of Naga People's Movement of Human Rights, etc. vs. Union of India on 27 November, 1997 held that “The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution…. While exercising the powers conferred under Section 4(a) of the Central Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.” The Supreme Court judgement failed to take into account the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary executions of 1989.

Section 6: Impunity to the armed forces

Under Section 6 of the Armed Forces Special Powers Act, "No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act."[19]

This provision virtually eliminates any prosecution of armed forces personnel.[20] This despite the government of India already provides impunity under Section 197 of the Criminal Procedure Code.

While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated “Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government's fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case”.[21]

In its Concluding Observations, the United Nations Human Rights Committee noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant”. Therefore the Committee recommended, “that the requirement of governmental sanction for civil proceedings be abolished and that it be left to the courts to decide whether proceedings are vexatious or abusive. It urges that judicial inquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such inquiries, including those under the Commission of Enquiry Act of 1952, be empowered to direct the prosecution of security and armed forces personnel”.

The Supreme Court in its judgement on the constitutional validity of the AFSPA stated that “Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons”.

The defiance by the Assam Rifles to appear even before the Justice C Upendra Commission of Inquiry into the Death of Thangjam Manorama Devi has exposed how presumptuous the Supreme Court of India was.

The armed forces have always been treated as holy cows. They are also kept out of the purview of the National Human Rights Commission under the Protection of Human Rights Act of 1993. Section 19 of Human Rights Protection Act of 1993 provides:

"19. Procedure with respect to armed forces

(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely:-

(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;

(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.

(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.

(3) The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by that Government on such recommendations.

(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.[22]

The NHRC basically serves as the glorified post box with regard to the violations by the armed forces. This is despite the fact that according to 2002-03 Annual Report of the Ministry of Home Affairs (MHA) of the Government of India, 14 out of 28 States of India are afflicted by internal armed conflicts.[23] Hundreds of thousands of armed forces consisting of the para-military forces under the control of the government of India and the army have been deployed. There have been consistent and credible reports of serious human rights violations by armed forces such as torture, rape, extrajudicial executions and death in custody.

A handbook on the establishment and operation of National Human Rights Institutions published by the Office of the United Nations High Commissioner for Human Rights in Geneva states that "Designating the military as exempt from the complaints mechanism may also have a detrimental effect on an institution's effectiveness, particularly in view of the strength of the military in many States and its corresponding potential to violate human rights."[24]

The United Nations Human Rights Committee while examining India’s third periodic report regretted that “the National Human Rights Commission is prevented by clause 19 of the Protection of Human Rights Act from investigating directly complaints of human rights violations against the armed forces, but must request a report from the central Government. The Committee further regrets that complaints to the Commission are subject to a one-year time limit, thus preventing the investigation of many alleged past human rights violations. Therefore, the Committee recommended that “these restrictions be removed and that the National Human Rights Commission be authorized to investigate all allegations of violations by agents of the State”.

The NHRC itself has taken up the issue on various occasions. NHRC urged that impunity to the armed forces bring no credit to the government and the security forces and “it thwarts the purposes of justice and the prime objective leading to the establishment of this Commission, namely the need to ensure the "better protection" of human rights in the country”.[25] The government of India in a "memorandum of action taken" of December 2003 on the 2001-02 annual report of the National Human Rights Commission (NHRC) of India however has rejected the NHRC’s demand for amendment of Section 19 of the Human Rights Protection Act (HRPA) of 1993 to give powers to investigate allegations of human rights violations against the armed forces. The government of India cited “compulsions of fighting cross-border terrorism” and “widespread politicisation of human rights issues” for rejecting the NHRC’s demand.[26]

4. Conclusions and recommendations

“Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism — not privileges to be sacrificed at a time of tension.” – Secretary General Kofi Annan in March 2003 at a meeting of the Counter-Terrorism Committee of the Security Council with regional organizations.

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, short-circuiting of justice has blurred the distinction between those who are contemptuous of the law and those who preach the values of democracy, rule of law and due process of law.

The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions lucidly summarised the impunity and extrajuducial executions in her report to the 57th session of the United Nations Commission on Human Rights:

“Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity. ….., extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing justice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration. Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post‑conflict peace‑building efforts include effective measures to end the culture of impunity and protect the rule of law.”[27]

Manipur is an apt example.

Since Manipur has been declared as a Disturbed Area in 1980, according to Manipur Chief Minister Ibobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.[28] There were only about four armed groups in Manipur in 1980 and there are over 20 armed opposition groups at present. The AFSPA has manifestly failed to resolve the insurgency problem.

If the AFSPA is repealed, Asian Centre for Human Rights makes the following recommendations:

First, the state governments must have the sole right to declare certain areas or the whole of State as “disturbed” subject to the approval by the State legislative assembly. Therefore, Section 3 of the AFSPA be amended.

Second, the Supreme Court in its judgement stated that the AFSPA “does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power”. If that is followed in practice, the armed forces must operate under civil power. Therefore, provisions giving special powers to the armed forces pertaining for search and seizure under section 4(d), arrest under section 4(c), destroying hideouts of the “absconders wanted for any offence” under section 4(b) and the power to use force including “the right to fire upon or otherwise use force, even to the causing of death” under section 4(a) are inconsonant with the intent and be amended to comply with normal Criminal Procedure Code or Indian Penal Code. In fact, Section 5 of the AFSPA provides that “any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest”. If such a procedure could be laid down with regard to the arrest, there is no reason as to why similar procedure cannot laid down with respect to other provisions. The problem is such a procedure is seldom respected by the armed forces. Therefore, there is a need to incorporate necessary clauses both to ensure that the procedures are followed and punishment be awarded for the failure to respect the procedures laid down in the Act.

Third, Section 6 of the AFSPA has been overtaken section 197 of the Criminal Procedure Code. Since its amendment in 1991, permission from the concerned State or Central Government for prosecution is mandatory. 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.

[1].www.hrdc.net/sahrdc/resources/armed_forces.htm

[2].www.hrdc.net/sahrdc/resources/armed_forces.htm and the bare act is also available at http://www.northeastvigil.com/facts/nedocs/docdasc.htm

[3]. 246. Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State _219*** also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").

(3) Subject to clauses (1) and (2), the Legislature of any State 219*** has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included _220[in a State] notwithstanding that such matter is a matter enumerated in the State List.

[4] . Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84

[5] . Ibobi govt extends disturbed area status, The Telegraph, Kolkata, 29 May 2004

[6] CCPR/C/21/Rev.1/Add.11, 31 August 2001

[7] Ibid. See also the following comments/concluding observations: Dominican Republic (1993), CCPR/C/79/Add.18, para. 4; Jordan (1994) CCPR/C/79/Add.35, para. 6; Nepal (1994) CCPR/C/79/Add.42, para. 9; Russian Federation (1995), CCPR/C/79/Add.54, para. 27; Zambia (1996), CCPR/C/79/Add.62, para. 11; Gabon (1996), CCPR/C/79/Add.71, para. 10; Colombia (1997) CCPR/C/79/Add.76, para. 25; Israel (1998), CCPR/C/79/Add.93, para. 11; Iraq (1997), CCPR/C/79/Add.84, para. 9; Uruguay (1998) CCPR/C/79/Add.90, para. 8; Armenia (1998), CCPR/C/79/Add.100, para. 7; Mongolia (2000), CCPR/C/79/Add.120, para. 14; Kyrgyzstan (2000), CCPR/CO/69/KGZ, para. 12.

[8] CCPR/C/21/Rev.1/Add.11, 31 August 2001

[9] ibid.

[10] Ibid

[11] . http://www.hrdc.net/sahrdc/hrfeatures/HRF51.htm

[12] . Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84

[13] . Missions incompatible, by Suhas Chakma, The Telegraph, 8 July 1996.

[14] . Ibid

[15] In Rehman v. The State of U.P. A.I.R. 1972 SC 110 Also Raghav 1963 SC 74. As quoted in the Arguments and Submissions made in Civil Rule No. 11 challenging the Constitutional Validity of the AFSPA, pg. 30.

[16] As quoted in the Arguments and Submissions made in Civil Rule No. 11 challenging the Constitutional Validity of the AFSPA, 30.

[17] . Lok Sabha Debates on 18 August 1958, also quoted in http://www.hrdc.net/sahrdc/resources/alternate_report.htm? and http://www.india-seminar.com/2002/512/512%20suhas%20chakma.htm

[18] CCPR/C/SR.1606 of 21 November 1997

[19] . Missons incompatible, by Suhas Chakma, The Telegraph, 8 July 1996.

[20] http://www.hrdc.net/sahrdc/hrfeatures/HRF51.htm

[21] CCPR/C/SR.1606 of 21 November 1997

[22] National Human Rights Commission, The Protection of Human Rights Act, 1993,

[23] http://www.mha.nic.in/annual-2002-2003/ch-3.pdf

[24] Office of the High Commissioner for Human Rights, National Human Rights Institutions, no.4 (Geneva: United Nations, 1995), 29.

[25] Annual Report of NHRC 1999-2000

[26] The Asian Age, New Delhi, 25 January 2004

[27] . E/CN.4/2001/9 and Corr.1

[28] . Ibobi unhappy over mushrooming growth of ultras' outfits, The Sangai Express, Imphal,16 June 2003

50 years of AFSPA in NE

50 years of AFSPA in NE

50 years ago, on 22nd May 1958, in the face of rising political dissent in the North-east, India decided to add to its laws -the Armed Forces Special Powers Act. Though enacted only for a year, it has continued since.

Provisions of AFSPA

Section 1: This section states the name of the Act and the areas to which it extends (Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram).

Section 2: This section sets out the definition of the Act, but leaves much un-defined. Under part (a) in the 1972 version, the armed forces were defined as "the military and Air Force of the Union so operating". In the 1958 version of the Act the definition was of the "military forces and the air forces operating as land forces". In the Lok Sabha Debates which led to the passing of the original Act, Mr Naushir Bharucha commented, "that probably means that the Government very mercifully has not permitted the air forces to shoot or strafe the area ... or to bomb." The Minister of Home Affairs did not confirm this interpretation, but certainly "acting as land forces" should rule out the power to resort to aerial bombardment. Nevertheless, in 1966, the Air Force in Mizoram did resort to aerial bombardment.

Section 2(b) defines a "disturbed area" as any area declared as such under Clause 3 (see discussion below). Section 2(c) states that all other words not defined in the AFSPA have the meanings assigned to them in the Army Act of 1950.

Section 3: This section defines "disturbed area" by stating how an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State, but does not describe the circumstances under which the authority would be justified in making such a declaration. Rather, the AFSPA only requires that such authority be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary." The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case. The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, the declaration that an area is disturbed is not subject to judicial review. So in practice, it is only the government's understanding which classifies an area as disturbed. There is no mechanism for the people to challenge this opinion. Strangely, there are acts which define the term more concretely. In the Disturbed Areas (Special Courts) Act, 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.

The 1972 amendments to the AFSPA extended the power to declare an area disturbed to the Central Government. In the 1958 version of the AFSPA only the state governments had this power. In the 1972 Lok Sabha debates it was argued that extending this power to the Central Government would take away the State's authority. In the 1958 debates the authority and power of the states in applying the AFSPA was a key issue. The Home Minister had argued that the AFSPA broadened states' power because they could call in the military whenever they chose. The 1972 amendment shows that the Central Government is no longer concerned with the state's power. Rather, the Central Government now has the ability to overrule the opinion of a state governor and declare an area disturbed. This happened in Tripura, when the Central Government declared Tripura a disturbed area, over the opposition of the State Government.

In the 1972 Lok Sabha debates, Mr S D Somasundaram pointed out that there was no need to extend this power to the Central Government, since the President had "the power to intervene in a disturbed State at any time" under the Constitution. This point went unheeded and the Central Government retains the power to apply the AFSPA to the areas it wishes in the Northeast.

Section 4: This section sets out the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer, only a jawan (private) does not have these powers. The Section allows the armed forces personnel to use force for a variety of reasons.

The army can shoot to kill, under the powers of section 4(a), for the commission or suspicion of the commission of the following offenses: acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. To justify the invocation of this provision, the officer need only be "of the opinion that it is necessary to do so for the maintenance of public order" and only give "such due warning as he may consider necessary".

The army can destroy property under section 4(b) if it is an arms dump, a fortified position or shelter from where armed attacks are made or are suspected of being made, if the structure is used as a training camp, or as a hide-out by armed gangs or absconders.

The army can arrest anyone without a warrant under section 4(c) who has committed, is suspected of having committed or of being about to commit, a cognisable offense and use any amount of force "necessary to effect the arrest".

Under section 4(d), the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search.

Section 5: This section states that after the military has arrested someone under the AFSPA, they must hand that person over to the nearest police station with the "least possible delay". There is no definition in the act of what constitutes the least possible delay. Some case-law has established that 4 to 5 days is too long. But since this provision has been interpreted as depending on the specifics circumstances of each case, there is no precise amount of time after which the section is violated. The holding of the arrested person, without review by a magistrate, constitutes arbitrary detention.

Section 6: This section establishes that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government. This section leaves the victims of the armed forces abuses without a remedy.

This legislation has been used as an instrument to deal with the people of the North-east militarily and not politically. While the people of Punjab had a brief taste of the Act in the 1980s, the people of Kashmir continue to be subjected to the same Act since 1990.

AFSPA violates INDIAN LAW

0.Violation of Article 21 - Right to life

0.Article 21 of the Indian Constitution guarantees the right to life to all people. Under section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of force.

0.Protection against arrest and detention - Article 22

0.Article 22 of the Indian Constitution states that "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

0.The Indian Criminal Procedure Code ("CrPC")

The CrPC establishes the procedure police officers are to follow for arrests, searches and seizures, a procedure which the army and other para- military are not trained to follow.

0.Military's Immunity / Lack of Remedies

0.The members of the Armed Forces in the whole of the Indian territory are protected from arrest for anything done within the line of official duty by Section 45 of the CrPC. Section 6 of the AFSPA provides them with absolute immunity for all atrocities committed under the AFSPA. A person wishing to file suit against a member of the armed forces for abuses under the AFSPA must first seek the permission of the Central Government.

AFSPA violates INTERNATIONAL LAW

Under relevant international human rights and humanitarian law standards there is no justification for such an act as the AFSPA. The AFSPA, by its form and in its application, violates the

Universal Declaration of Human Rights (the "UDHR"),

The International Covenant on Civil and Political Rights (the "ICCPR"),

The Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials,

The UN Body of Principles for Protection of All Persons Under any form of Detention,

The UN Principles on Effective Prevention and Investigation of Extra- legal and summary executions.

The UDHR articles which the AFSPA violates are the following: 1 - Free and Equal Dignity and rights, 2 - Non- discrimination, 3 - Life, liberty, security of person, 5 - no torture, 7 - equality before the law, 8 - effective remedy, 9 - no arbitrary arrest, 17 - property.

International Covenant on Civil and Political Rights ("ICCPR")

AFSPA violates International Customary Law

The UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra-legal and summary executions all form part of international customary law because they were passed by UN General Assembly resolutions. They lend further strength to the conclusion that the AFSPA violates basic human rights standards.

AFSPA violates International Humanitarian Law

The four Geneva Conventions of 1949 along with the two optional protocols, constitute the body of international humanitarian law. These provisions are suited to human rights protection in times of armed conflict. Under these conventions the International Committee of the Red Cross (ICRC) is given access to all international conflicts. In non-international armed conflicts, the ICRC can only offer its services.

The way forward

The only way to guarantee that the human rights abuses perpetrated by the state and non state actors in the North East is to repeal the AFSPA.

If the Indian Government truly believes that the only way to handle the governance of the North Eastern states is through force, then it must allow the UN bodies to intervene. This can only have a calming influence. Acceptance of UN services would demonstrate that the fighting parties want to bring an end to the violence. The UN involvement could help protect the residents of the North East who are currently trapped in the middle between state and non state actors.

--
Tom Mangattuthazhe
Secretary, Diphu Citizens Peace Forum
Secretary, United Christian Forum
Rector, Mission Home, Manja
Principal, Little Flower School, Manja
Correspondence
Bishop'sHouse
Diphu - 782460
Ph.03671- 275003
Mobile.09435066461
Emai.tmangatt@gmail.com
http://DDYC.blogspot.com
http://tommangattuthazhediphu.blogspot.com

Mobile.09435066461
Email.tmangatt@gmail.com
http://DDYC.blogspot.com
http://tommangattuthazhediphu.blogspot.com

AFSPA: A LAW FOR EXTRAJUDICIAL EXECUTION IN PERPETUITY

ARMED FORCES SPECIAL POWERS ACT, 1958
- A LAW FOR EXTRAJUDICIAL EXECUTION IN PERPETUITY

Dr. Naorem Sanajaoba[1]
Professor and Dean of Law Faculty
Gauhati University, Asom.

State parties including India is under International
and national obligations under Article 2 of the International Covenant
on Civil and Political Rights (ICCPR) to enforce the ICCPR in the
complete sense of the term. By invoking the AFSPA, 1958 for half
a century in the NSGT of NE region, India’s union government
has consistently not complied with the essential public emergency
provisions of Article 4 of the ICCPR. The repository of Rule of law
– Supreme Court in its 1997 verdict has overlooked possibly not
due to ignorance of the law, both Articles 2 and 4 of the ICCPR.
India has to mend its ways. Justice Jeevan Reddy report,2005 strongly
recommends the total repeal of the infamous Act; however
,the report suggests incorporation of the some of the provisions
to an existing Act- UPA,2002- for invocation in the country
as a whole. The AFSPA should be repealed as per report.The UPA
amendment could be done after nationwide debate only. The report
does not indicate any further justification of extrajudicial executions
and termination of impunity. The prime minister of India would like
to amend some provisions and not to repeal the black law by overlooking
Reddy report to repeal the black law[his statement
in Imphal on 3 December, 2006-Telegraph daily,Guwahat- see front
page headline- Human garb for ‘black law’.]
Loka Sabha Speaker Mr Somnath Chatterjee in the zero hour notice
in the lower house of the Parliament demanded on11th December 2006 that
the AFSPA be thrown out as it is repressive The major opposition parties of India also took the same stand for throwing out the dirty law.
The GOC of Eastern command of the Indian army in his statement
On 16th December,2006
at Kolkata insisted that the black law, with certain amendment, has
to stay;he did not explain why he wanted to continue extrajudicial executions
and torture of the citizens in the NE region in blatant transgression of
rule of law and offer immunity to extrajudicial murderers in his folk.
He did not explain why he remained silent about his governmen’ts not signing
the ICC Rome treaty.In the event of his government’s signing the Rome
treaty,he in his individual perso, has to be prosecuted and tried by the ICC under
the rule of law for commission of heinous crimes in the NE region.
A LAW THAT GUARANTEES EXTRA - JUDICIAL EXECUTION
The extra-judicial executions of innocent civilian populace and other forms of naked human rights violations remain a fact of life in the North-Eastern states in India for the last five decades. Two contentious stances are being advanced by the state, which has rationalized the enactment and enforcement of demonical law like the AFSPA 1958 (Armed Forces Special Powers Act 1958 – AFSPA, hereafter), and by the defenders of human rights, who not only defy the apparent legitimacy of such a law, but also raise the politico-historical basis of the upsurges, that characterize the North-Eastern life.
The apex court upheld the statute on 27 November, 1997, by overlooking the gross human rights violations since 1958, whereas it could have struck down the black law on the grounds of its incompatibility with the Rule of Law and the ICCPR, 1966 to which India is a State Party. Justice Jeevan Reddy report 2005( report hereafter) observes:
“{the} Act,for whatever reason,has become a symbol of oppression
,an object of hate and an instrument of discrimination and highhandedness.” [Report,p.75] “ The Court does not-it is not supposed to- pronounce upon the wisdom or the necessity of such an enactment.” [Report p.74]
Although the armed forces donot favour repeal of the black law- the AFSPA, the report has recorded the assessment of the armed forces about the political consequences of the AFSPA ;
“ Army:…(a) The insurgency situation in the north- east has worsened since the AFSPA has been applied in the 1950s.The insurgent groups have greatly increased .Their cadres, weapons,tactical capabilities have expanded and improved immediately.”[Report.p. 62] .Apparently, the black law has acted as surrogate mother of increasingly proliferating belligerency and insurgency.
The deployment of forces has been reenunciated by the government of India.
“Ministry of Home affairs: In its presentation to the Committee, the MHA stated that Armed Forces and other forces of the centre would be progressively withdrawn from the north-east,…”[Report p. 64] An impartial analysis of these official statements of the respectable national institutions of India reveals that they remain rhetorical at best.
Indian state, unlike the Indian nationhood is a nascent British-created entity, which has passed through diverse - and even, non-complimentary historical experiences. A nation-in-the-making that India is, Manipur state and Tripura state have been brought to the fold of the nascent state after two years of Indian independence ; the other states of the region remained parts of Assam, which on its part, joined the British Indian mainstream in 1826. Mainstream historians had misrepresented the acquired territories of the NE region as state succession from the British colonial power
In political terms, the sub-terranean faultlines are cracking up, and Indian state persists in quick-fixing the deep-structured NSGT faultlines with the help of the powerful Indian army and state repression, which would loose legitimacy without having demoniacal laws like the AFSPA, and the Punjab Security Act 1953. Occasional patchwork and cosmetic reforms apart, the deep-structured political contradictions are shelved beyond the reach of bold contradictions are shelved beyond the reach of bold and visionary stroke of statesmanship, which itself is a missing word in the colonial legacy.
The tangible political repercussions of the invocation of the AFSPA demonstrate the following phenomena: Firstly, the correlation of the demoniacal law with corollary of such a law is found in subsequent political fallout. The AFSPA’s predecessor - the Armed Forces Special Powers Ordinance 1942, had been enacted in order to neutralize quit-India movement. It was hundred percent a colonial instrument, used for legitimization and continuation of colonialism.The British colonial Armed Forces(Special Powers) Ordinance, 1942 promulgated byViceroy Linlithgow[ sic’self - style as Lord]had provided: “ 2(1)Any officer not below the rank of captain in His Majesty’s Military Force…,require any personnel under his command to use force as may be a necessary, even to the causing of death, against any person…” The Indian parliament had acted as Linlithgow –II in the North Eastern region for half a century.Nearly 30 nation-states are awaiting for independence in the 21st century notwithstanding states repression.
The 1942 demoniacal ordinance crafted by the British colonialists, among others, had expedited and facilitated the passage of Indian Independence Act, 1947. The 1958 law inherits the same powerful political potency.
Secondly, the AFSPA in 1958 has been enacted in 1958 in order to quell the ethnic uprising in Naga Hills in Assam in 1958. After four decades, like a nuclear chain-reaction, the invocation of the black law in a small range of hills spread over the conflagration like domino effect in all the seven states. It has the potency of flaring-up politically sensitive issues like prairie-fire.
aw…. It is being sought to be introduced in this House as a most innocuous measure.[LSD.p1424]; he Two- hour summary parliamentary debate
Concentration camp theory approved in the house
Inspite of referring the bill to a JOINT PARLIAMENTARY COMMITTEE to examine the statute and discussing the same in details,on 18th August,1958, the AFSPA had been adopted after two hour-long summary debate by the parliament . Manipur MP Sri L.Achaw Singh argued against the bill,” This is a black law….How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search ?This ia a lawless law.”[Lob Sabha Debates vol.XVIII,1958-hereafter LSD only,p. 1441]
Manipur hill MP Rungsung Suisa argued against the AFSPA,” All these Ordinances and sending of Armed Forces will not solve the problem.”[LSD,p. 1447]
MP Sri Warior(Trichur) opposed the bill-“ The whole of Assam and Manipur is going to come under Martial law though the Martial Law and an emergency are not declared.”[LSD,p1434].In the same vein, MP Sri Mahanty opposed the bill-,” What I am trying to submit is that this is a martial l further argued,” …But, we do not want a free India with barbed wires and concentration camps, where the Havildars can shoot at sight any man.LSD,p.1426]. However, brute majoritarianism of the ruling Congress got the bill passed without elaborate debate in the parliament in just two hours. Human rights had to be violated for half a century in the NE region ruthlessly and mercilessly following the passage of the concentration camp law.
EMERGENCY UNPROCLAIMED

MPs opposed the the invocation of unproclaimed emergency through the backdoor.MP Mahanty opposed the bill,-“It has to be conceded that there are enough materials to show that there is an emergency. But the Energency provisions of the Constitution have been invoked without the President declaring an Emergency.”[LSD,p1401].
In similar vein MP Dr Krishnaswami opposed the bill,-“ This is a state of affairs that can be brought about only by a Proclamation of Emergency promulgated under article 352 of the Constitution. The Bill seeks to circumvent these provisions and attempts to usurp the powers of the state not warranted by the Constitution.”[LSD,p.1406] He further argued,-“ I suggest,here, the unconstitutionality is so patent that we are justified in requesting the Chair to rule that the measure is ultra vires.”[LSD,p.1409]
The state and security forces have also been conditioned to demoniacal-law-dependency so much so that the state feels deeply vulnerable without resorting to unproclaimed emergency and special power laws. It is comparable euphemistically to the addicts’ drug dependency. The decision-makers in the state and security forces have evolved a different short of hyper-subjective perception in regard to the unresolved political question of historical importance. The distorted perceptions are indicated by the following official projections:
I - The security forces are fighting low-intensity war against ANEs (Anti National Elements, as they are known to the army – the insurgents (ANE for enemy) ;
II - In aid of the civil authority, the forces assume the power for internal security management on par with defence against external aggression:
III - The forces use military power so as to quick-fix the fault lines, inherited from colonial history;
IV - The armed forces need additional empowerment like the AFSPA and other concomitant draconian laws in order to maintain public order - extra judicial power for execution of any suspected citizen under section 4 of the AFSPA and virtual immunity from prosecution under section 6 of the same statute ;
V - In doing so, the forces should not be dragged into allegations of human rights-violations while the forces have their own court-martial system;
VI - The forces, deployed by the third largest army in the world against a few hundreds of politically motivated secessionists can not be considered to have been deployed in excess of the requirement of military necessity;
VII - Human rights violations are not atrocities, 4 but a modest inconvenience, to be born by the civilian population: These violations are considered a military necessity to keep India in tact.
The reasons had espoused the same set of strong arguments, advanced at the time of enactment and invocation of the colonial Armed forces Special Powers Ordinance in 1942 by the imperial power, who desired the British to keep the empire in tact. The obvious contradiction lies in the fact that the justification for colonization or, re-colonization through colonial statute after the lapse of the colonialism is totally absurd and false. The demoniacal colonial law had to exist in order to sustain NSGT colony and conversely, the invocation of colonial statute proves that the colony survives after the British left India in 1947. -
The central issue, which resulted to insurgency or, national liberation movement - as it has been known to the insurgents or, in the parlance of universal de-colonization, is the historical legacy and a deep structure political question, which should not be addressed to legitimize the draconian law and the army, who had been given additional empowerment for extra-judicial execution under the AFSPA.
The issue has been misconceived as ‘law and order’ or, at most ‘internal security’ issue, whereas it bears the intrinsic essence of de-colonization and national liberation war- euphemistically, known as secessionism. The issue remains very deep and the fault lines are profound. The sustenance of the issue for more than four decades itself indicates that human eights violations and the twisted perceptions are merely symptoms of the malaise. The Annual Report of Home Ministry, Government of India 1996-97 reports about the state most affected by insurgent activities of various militant groups. The union government, has therefore, arranged for talks with a Nagaland outfit since 1997.
The available evidence, the demand-structure, the historical facts and the pattern of union government’s response to the political issue make it amply clear that the decades-old political violence, as espoused by the insurgents or liberation army of the NSGT, has been a consequence of unresolved political question from the time of Indian Independence.
Historical evidence very clearly stipulates that –
(I) Manipur and Tripura had been annexed to the Indian political fold, in 1949 after two years of Indian independence;
(II) Assam became a part of British India_ not by her choice_ but by the choice of Burma and British, which signed the Treaty of Yandaboo in 1826 without the consent of independent Assam;
(III) the ethnic tribes which remained in the excluded hill areas of Assam fused themselves in the last five decades into nationhood, and claimed independence prior to the passage of Indian Independence Act 1947, and
(IV) British-created India has been a totally different entity from the original Indian nation that continued for centuries in the Gangetic basin – the Aryabrata.
The British-created India has been a deliberate political creation, unlike the homogenous Indian nation, based on Aryabrata. The issue is, therefore, not secession, but about fixing the NGST region to India by hammer and tongs – coercive mechanisms.
The accords, reached and breached between national groups and the government during the last five decades, being purely political issues in all sense of the term, exclude the wide arms of the apex court or, human rights commissions or, the instruments of the civil government like the army. Since 1997, the union government has initiated political moves by holding dialogue with one of the liberation outfits of Nagaland. Even after 9 years of talks, no result has so far emerged.
The human right violations following the invocation of special demoniacal laws and state repression for nearly half-a-century has been inextricably associated with the political question. The issue, therefore, stands for the closest political scrutiny ; however, the enactment of special laws, invocation of half-a-century old emergency laws without formal declaration of emergency have to be assessed on the basis of ‘rule of law’ and accepted standards civilized jurisprudence.
HUMANITARIAN LAWS
The imperative need for the government to abide by the International bill of human rights arises out of constitutional requirement, general customary International law, common law background, state practices and above all, the union government’s signature and ratification of the two covenants, 1966 on 10 April, 1979.
The bindingness of human-rights law on the part of the union government and its instruments like the security forces or the judiciary etc. arises out of the following norms, NATIONAL obligations and assured compliance:
I: Articles 253, 51,246, schedule VII list I items 10-15, among others, of the Constitution of India;
II: State practices starting from India’s becoming a member of the United Nations in 1945, even before two years of her independence;
III: General and customary International law, Jus Cogens as followed by the comity and community of nations, of which India is an inseparable part;
IV: The supreme court of India’s endorsement of the human rights covenants of the United Nations in the process of evolving ‘human rights jurisprudence’ in several landmark public interest litigation cases; and the apex court’s endorsement of the human rights covenants by incorporation as part of particular fundamental right, is found in the apex court statement in PUCL vs. Union of India (1977)2 JT 3/1/1), among others;
V: Fundamental rights under chapter III of the Constitution which can no longer be suspended even during a situation of emergency, following the 44th amendment of the Constitution;
VI: Article 21, compounded with article 14 and 19 of the Constitution that has been placed as a special class of mini-code, especially after the construction of ‘due process of law’ meaning the ‘procedure duly established by law ‘
VII: Rule of law, democracy and judicial review which are the basic features of the Constitution, unlike peripheral and unsustainable special laws, which do not conform to the basic tenets of rule of law.
Human rights covenants, signed and ratified by the union government of India are no longer convenient appendages, which could be dispensed with, whenever found inconvenient. They are increasingly indispensable. Civilized international comity expects India to act differently from USA and other ROQUE states of the world. India has been NAM leader for 130 countries unlike the USA.
The international standard of human rights, which has been defined by the Constitution and International bill of human rights, has to be complied with by the union government and its civil as well as military instrumentalities. In the case of the compliance or non-compliance, the union government has been placed for reporting obligations under article 40 of the ICCPR, 1966. The union government has so far submitted three periodic reports to the UN Human Rights Committee and the Fourth report which was due by 2001, as reported by the committee has not been submitted till 2006. The delay reflects India’s utter neglect of ICCPR obligations under Article 2 and 40.
Besides constitutional and legal accountability, the union government is politically accountable to the comity of nations for the maintenance of ‘peace’ and ‘security’, as envisaged by the UN Charter, the violation of which could be made a subject matter of the UN instrumentalities including the action of the UN Security Council. Just because India is having one of the largest army in the world and special laws empowering the army to commit covert or, overt genocide, it should not waive its accountability towards the maintenance of peace and security in the world with impunity by resorting to naked state repression of the dependent populace – of the NSGT (NON – Self – Governing Territories), neglected by the UN, which is apathetic to NSGT of South Asia.
The union government of India had recognized a number of national liberation outfits or, insurgent groups as bodies demanding secession from the country vide the Unlawful Activities (Prevention) Act 1967 and other similar laws. The statute has paradoxically given recognition to the national liberation outfits as bodies fighting war of independence and secession from the union of India.
Periodically, notice has been publicly issued by the state to these NLM/NSE bodies through dailies in order to lend testimony to that they mean separation from India and claim independence. The series of governmental gazettes, notices and publications, by implication, label that these outfits are merely ‘goons’, ‘criminals’ provocateurs of ‘law and order’ problem and both the parties, interlocked in insurgency and counter-insurgency armed conflicts endorse the same view point that outfits demand independence from India and they use ‘Any Means available with them’ in the process of their liberation struggle. International humanitarian laws become, therefore, relevant in the context of the governmental recognition of the outfits as political organizations, committed to a political cause and armed conflicts.
The prevailing International humanitarian Laws invariably stipulate the following universal standards, which even in the event of violation do not lose their standing legitimacy:
I: The four Geneva Convention, 1949, signed by the union government of India and Indian enactment of Geneva Convention Act 1960 render that the International Humanitarian Laws are applicable to India and its forces:
II: The protection of life, liberty and property of the civilians, hors de combat is non-derogable under common article 3 of the Conventions and the two Protocols. World Court (ICJ) has endorsed these rights as Jus Cogens and the same under customary international law (Nicaragua vs. USA, 1986):
III. the Government of India has been disempowered to under Common Article 3 to commit extra judicial execution without judicial guarantees. The Supreme Court has to see that AFSPA be struck down, as it is incompatible with common Article 3 of Geneva Conventions and ICCPR article 4. The Judiciary has failed its duty in this context by overlooking ‘judicial guarantees’ as required by common article 3 of Geneva Conventions. protected under the law, (see Martens clause).The common article 3 of the 4 Geneva Conventions binding to the government of India and by extended constitutional construction, to the Supreme Court of India provides the law as follows :
Common article 3(I) …. “ To this end, the following acts are and shall remain
prohibited at any time and in any place[NE included-sic] whatsoever with respect
to the above-mentioned persons[ sic. persons taking no part in hostilities} :
(a) violence to life and person,..”
(d) “ the passing of sentences and the carrying out of executions
without previous judgement pronounced by a regularly constituted court,…” .
IV The Supreme Court Judgment in NPMHR vs. Union of India, 27 November, 1997 has laid down guidelines in Para 56-58, (see document annexed); these guidelines cannot be violated, but has also been violated recurrently. Children under 18 years have also been extra judicially executed for half a century in violation of laws and conventions. Children under 18 years have also been extra judicially executed for half a century in violation of laws and conventions in blatant violations of right of the child laws and conventions.
V: The insurgents and national liberation movements (INLMs) had been admittedly accepted as subjects of International law, especially after the decolonization movements since the 1960s. Since the beginning of the 1960’s - “It has been increasingly the practice among states, based on claims by the Third World and as expressed in United Nations resolutions, to consider manifestations of a people’s right to self determination as an International event”. Insurgents are also bound by International humanitarian law. The details of the application of the law are widely known.
VI: State practices indicate that national liberation movements are legitimate unlike naked terrorism and heinous crimes. UN resolutions passed by the General Assembly, Security Council, International Court of Justice and UN committees make it abundantly clear that legitimate movements are not terrorism per se and internal security matters. Large number of states after 1945 have emanated in this process.

VII. In compliance with the current development of International Law, the State of India should deter itself from committing extrajudicial executions, made emphatically in the NSGT of the NE region.
VIII: The use of force is not only governed by the humanitarian laws and state practices, but also but other principles, like ‘Basic Principles on the use of Force and Firearms by Law Enforcement Officials.’ [UN, Professional training series No.5, Human Rights and Law enforcement, 1997]. India could not use force against legitimate liberation movements.
IX : Since the crystallization of International criminal law jurisdiction in Tokyo and Nuremberg war crime tribunals and in UN jurisdiction in Yugoslav and Rwanda tribunals in the recent years, crimes committed against a race or, mankind are subject to persecution, trial and punishment. Protection of civilian life and property is taken more seriously in armed conflict-situation and it is non-derogable.
X: The International Criminal court has come to exist and is a reality. The Government of India is under obligation to amend its criminal laws in order to fix individual criminal responsibility for commission of heinous crimes and or to adopt the ICC Rome Treaty, 1998 forewith. Heinous criminals- government officials, members of the security forces, guerrillas or soldiers could be prosecuted by the ICC if the union government of India is honest enough to deal with them. The government evades the ICC prosecution by not being a party to the Rome Treaty,1998.
As discussed above, the state has the responsibility and obligation to honor and comply with the internal and international human-rights standards in all shifting circumstances. The insurgents are also under obligation to protect civilian life and property; they have to declare that they abide by the Geneva Conventions in this regard. The PLA of Manipur in 1997 had signed Common Article 3 of the Geneva Conventions and others have to follow suit.
However, they lack the compulsory state obligation as long as they do not constitute recognized state and become a member of the United Nations. In this sense, their obligations are more narrowed and limited than what the state had to comply with and to periodically report compliance to the comity of nations. The insurgents could demonstrate their sense of responsibility by complying with common article 3 of the Geneva Conventions, 1949. The compliance of common article 3 in no way affects their political status.

THE REICH STATE
Procedure established by law

The protection of life and liberty of a person including a citizen is a sacrosanct commitment of the Constitution under article 21 which states:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The provision intrinsically is not an enabling law, but a disabling law. It cannot and should not be construed so as to mean that one’s life should be taken away, by State by simply enacting a law. A larger bench of the apex court should - it is deeply felt - review, therefore, the 27 November, 1997 judgment. The sharp difference to be discovered between an enabling law and disabling law can be best understood only by considering the paradigm of justice as the basic foundation in the constitution.
The ‘procedure established by law’ has been construed as one of the easiest ways and methods to commit gross injustice and even genocide against an alien race. The 27 November, 1997 apex court ruling is henceforth untenable. A counterpart example is seen in the third Reich, which has taken several millions of human lives as tuition-fee for teaching the world that one can establish such a procedure under law, and constitutionally wipe out a people (race), you dislike for absurd reasons.
After this lesson, we learnt after paying a hefty tuition-fee that all the constitutional and legal acts should pass through a test of profound justice, fairness and reasonableness. Not so long ago, the USA bought and cut off colored people as they do to the vegetables and the same was repeated in apartheid regime in South Africa under ‘procedure established by law’. The ‘procedure established by law’ of these regimes had been condemned unto the last man by the civilized world.
Similarly, the parliament had enacted in 1958 according to ‘procedure established by law’ - the demoniacal AFSPA 1958 - in order to give additional empowerment to the security forces to arbitrary commit extra-judicial murders by shooting down, a race of people, who have recently joined the Indian mainstream as ‘distinct people’ of NSGT (Non Self Governing Territories).
Ridiculously, the Third Reich had enacted lawfully. It had Nuremberg laws of September 15, 1936, Reconstruction of Law, January 30, 1934 and had witnessed Emergency Presidential Decree of February 28, 1933 under article 48 of the German Constitution. By law of March 21, 1933, special court had been set up for trial of cases of “insidious attacks against the government.” The official gazette “Reichsgesets blatt” published the lawful government orders under “AB Action” or, beautifully worded “extraordinary Pacification Action’ (Ausserordenliche Befriedigungsaktion). Intelligentsia who do not subscribe to ‘one people, one Reich and one faith’ had been cleansed away. The third Reich and Indian parliament acted absolutely intra vires their respective constitution’
The cleansing of Germany by weeding out the Jews had not been performed without observing constitutionality and a lawful procedure. The ‘Procedure established by law’ may wipe out the entire populace in the North-Eastern states or, the indigenous people in the region by enacting laws like the AFSPA and the apex court totally ignored complaints since 1958, till the contemplated act has been undertaken. However, India’s apex court is usually prompt to strike down, at a moment’s notice, incompatible statutes or executive action sue motto or, otherwise in the normal course. In did not happen to writ No. 550 of 1982 till 1997. The parliament has repealed TADA, and not the black AFSPA.The discriminatory approaches had reinforced the existing faultlines between the acquired NSGT and the metropolitan India.
The less nefarious ‘procedure established by law in the context of article 21 of the Constitution of India has undergone enormous change in the process of construction. The transformation, it has undergone is crystallized below:
(I) Justice Fazal (in minority, but in saner way that the majority) in Gopalan vs. state of Madras (1950 SCR) stated that the word ‘established’ - suggests “certain principles of justice which inhere in every civilized system of law” (p 180). The absence of the word “due processes in article 21 could not lead to a possible self-righteous and arbitrary use of the procedure;
(II) The majority judgment in Menaka Gandhi vs. Union of India, A.I.R., 1978, S.C. 597 made it amply clear that whatever procedure is prescribed by the statute “cannot be arbitrary, unfair or unreasonable” (p.622-). If the procedure is arbitrary or so, the court would invalidate laws which prescribed and unjust, unfair or unreasonable procedure. The procedural ‘due process’ has been constructed out of the silent zone of article 21;
(III) By a creative interpretation of the article 21, Justice P.N. Bhagwati enlarged the sweep of the procedure. In his words: “The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Art. 14 like and omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Art, 21 would not be satisfied.”
(IV) The meaning of life under Art. 21 have been progressively and more affirmatively interpreted by the apex court 21 in the subsequent PIL cases. In this context, the amplitude of ‘reasonableness’ is widened to the extent of saving the life from arbitrary deprivation, and statutes forestall the slightest tinge of arbitrariness even in the common sense.

(V) The “Human Rights Jurisprudence” which all the agencies of the government subscribe to, by virtue of the International Bill of Rights and Jus Cogens blatantly censures extra-judicial executions and other brutalities, committed by the states. The apex court of India has, however, overlooked the reasonableness aspect of the statute, and wantonly upheld the discriminatory law for extrajudicial execution – the AFSPA – as a good law.
The near permanent perpetuation of a ‘lawless law’ – the AFSPA - in the post colonial period, cannot at all be justified except on the score of coercive re-colonization of a ‘distinct group of people’ belonging to and rooted in a distinct region, who happily remained outside the geo-political geography of India for millennia, till they had been conveniently quick fixed to the mainland in the recent past.
The ‘distinct people’, more particularly - the indigenous people of the region find no other region than considering the ‘Lawless Law’ as outrageously repressive. The demoniacal AFSPA statute does not deserve to remain for a day longer in the statute book of a civilized legal system. Home Minister G. B Pant got this statute enacted as a short term measure in 1958 after a discussion for three hours only. The jurisdiction for the immediate scrapping of such a statute are cited below:
HISTORICAL REASONS

I In the post colonial era, no repressive law whatsoever had ever succeeded in resolving deep- structured political crisis. It could be Palestine case, Vietnam, Bangladesh or, Soviet Union in 1991 or situation of the Rowlatt Act, 1911; and the Armed Forces Special Powers Ordinance, 1942 had rather hastened and expedited passage of Indian Independence Act, 1947, before it was actually due in June 1948.
II AFSPA is a crude recrudescence and revival of the British colonial statute and it should not be re-enacted in the post – colonial scenario under any circumstances. AFSPA is the best evidence of sustaining colonial law in a new post- colonial era.
III Parliament did not fully apply its mind to the passage of this black statute in 1958. The law which partook an emergency status had been enacted without formal declaration of emergency. Ostensibly, the statute was enacted for a brief while and not for perpetuity. The United Nations Human Rights Committee addressed itself to this issue in July 1997. Human rights NGOs all over the world denounce the Indian black law.
IV When the parliament briefly discussed the purpose of invoking the law in Manipur and Naga Hills, among others, all the MPs of Manipur resisted the passage of the law. It has been thrust upon the helpless racial minority by another alien, brute and tyrannical majority against the vehement resistance of the minority. It is inherently racist and genocidal in character.
V It justifies covert agency of the state for committing genocide of the NE people. Reddy
Report has recorded,”[when] certain members[ sic. of the security forces] thereof
may seek to take advantage of their power and position to harass or otherwise trample
upon the rights of the citizens of this country.” (Report p.73)
VI The initial objective of enacting the black law had been totally betrayed and frustrated. The statute was enacted so as to contain a small scale uprising in Naga hill district of the erstwhile state of Assam, which was just a tiny district among the large districts of Assam. After four decades of invocation of the black law, the insurgent flare-up has spread over in Manipur, Assam, Nagaland, Tripura, Arunachal Pradesh, Meghalaya etc. ‘The mightier the state repression, the wider is popular discontent and insurgency proliferation’ – is apparently the law of nature in the new epoch.
VII- The NSGT in NE region rose against the metropolitan India for half a century.
Indian university professors of history and political science near unanimously teach millions of students wrongly that India has not been a federated state unlike the USA or the former USSR and hundreds of Ph.Ds had been awarded on this concocted lies. British India was a separate entity from the sovereign native states.The Indian Supreme Court in as many as 9 verdicts since 1954 to 1993 [ see –Virendrasingh vs.state of UP,AIR,1954 SC 447 and also Raghunathrao vs.union of India,AIR 1993 SC 1267] had unambiguously laid down the verdicts that native states had been completely sovereign and independent in 1947. The 1993 Supreme Court verdict is –“On the commencement of the Indian Independencxe Act,1947,British Paramountcy lapsed and the Indian States[ sic.states including Manipur and Tripura] became completely sovereign and independent”.They conceal this truth. Native sovereign states joined or were forced to join the Indian union after signing two international treaties- the Standstill agreement ,1947 and the Instrument of Accession, 1947.Hence,Indian union had been a federated state.These fabricated white lies misled the parliament and the forces were indoctrinated to hate the region .The black law had been givSen a moral support on this misgiving.

VIII The over all cost- benefit of the passage and invocation of the black law is counter productive. It had already cost not less than 30,000 Crores of poor tax payer’s money, while the starving millions of Indians need a square meal from this drained out money. In the list of HDI in 1999, India stands as the 134th in terms of human development in the world, because of this obsession. The position is not better in 2006. The arms race is flagged off on 11th May 1998 in South Asia with 5 nuclear weapons test by Government of India.
IX The NHRC of India – the apex statutory commission has recommended the repeal of AFSPA in 1997 by way of impleading in the 1997 apex court hearing. The Government of India fails to honor the impartial NHRC recommendation. The recommendation of impartial body like the NHRC is more authoritative than that of prime minister’s committee.

CONSTITUTIONAL INCOMPATIBILITY
NON COMPLIANCE WITH ARTS. 2 AND 4 OF ICCPR
The binding obligations of government of India towards the ICCPR arises out of its signature given to and ratification of the ICCPR in 1979.The binding article 2 of the ICCPR provides,” 1.Each State Party ( sic.India) to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant(sic.ICCPR),…” .The binding obligation has not been complied with by the government of India.

I The declaration of disturbed area by the union government has not been guided by obvious, objective criteria. The whole exercise has been arbitrary since de facto emergency had been impaired without formal promulgation. The government of India has blatantly violated article 4, 6, 9 etc of the ICCPR, 1966 to which it is a party. The article 4 of the ICCPR which is binding to the government of India as follows :
Article 4 [2] : “ No derogation from articles 6,7,8(paragraphs 1 and 2),11,15,16 and 18 may be made under this provision.”
The right_ non-derogable_ even during the extreme form of public emergency when the life of a nation is being threatened is provided by article 6 of the ICCPR which is binding to the government of India and by judicious construction, to Supreme Court of India as well .
Article 6 [1} –“ Every human being has the inherent right to life. This right shall be protected by law. No one shall be deprived of his life.” The parliament of India and the apex court of India has blatantly violated article 6 and article 4 of the ICCPR, in the same way as international treaties had been cast aside by the third Reich off late in the history.The blatant violation of human rights by the state agencies for half a century in Manipur and the NE region resulted to gross transgression of the human rights standards viz., Extrajudicial killing [p. 1-82 of COHR report], Enforced disappreance {p.83-84], Illegal detention and harassment[p. p.85], Rape and sodomy[p.86-89] and Torture[p.90-104, Report on Human Rights violations in Manipur, Committee on Human Rights9 COHR), Manipur].The Amnesty reports also corroborate the innumerable crimes committed by the state forces in Manipur and the NE region for half a century.[see all reports of Amnesty International for decades]
II The maintenance of the public order and tranquility is within the ambit of the Cr. P.C Section 129 of Cr. P.C provides for the dispersal of assembly by use of civil force; Section 130 for use of armed forces to disperse assembly and provides for use of armed forces to disperse assembly and section 13O provides for power of certain armed forces officers to disperse assembly. The existing fundamental law of the land is adequate enough to mobilize armed forces in bringing peace and tranquility in the civil order. The AFSPA is an additional, but highly repressive and oppressive empowerment of the forces.
III It blatantly violates the internal and international standards of human rights, as enunciated above and enunciates above and universally agreed upon. It negates India’s conviction and national commitment.
IV Section 4(a), (b), (c), (d), of the black law is a direct transgression upon articles 21 and 22 of the Constitution. The power to ‘fire upon’ to the extent of ‘causing death’ given to the lowest ruling of NCO on the slightest suspicion i.e. the power to commit extra-judicial execution is not only arbitrary, unjust, unfair, but is also a legitimization of outright extrajudicial murder. No civilized jurisprudence would justify this additional empowerment, given to the forces to kill citizens. The apex court by its 27 November, 1997 judgment failed to give reason to refute the criticism of the powers so exercised under the black law. It has in just one or, two pages very weakly upheld section 4 of the Statute. It has run short of ammunition. While defending (a) the unproclaimed public emergency by overlooking the emergency provisions of the constitutional India, (b) a racialist and discriminatory law for the subjugation of the NE people, and (c) extrajudicial execution of the people of the NSGT in direct contravention of the ICCPR, 1966 and Jus Cogens.
V The apex court judgment commands respectability and bindingness according to article 141 of the Constitution. The Delhi High Court judgment – Indrajit Barua vs. State of Assam (AIR 1983, Delhi 513) had the least bearing with article 141. The Supreme Court has disposed of the writ petition nos. 5328 of 1980, 550 of 1982 and 9229 and 9230 of 1982, which challenged the constitutionality of impugned black statute, on November 27, 1997 after long seventeen years of receiving the petition in 1980. The Supreme Court had bee indifferent to the extrajudicial execution of the NE People.
After accepting a set of guidelines to be followed at the time of enforcing the law, the apex court has upheld the validity of the Armed Forces (Special Powers) Act, 1958, the repeal of which has also been recommended by the Chairman of the National Human Rights Commission in 1996. The constitutional bench, headed by Chief Justice, J. S Verma, in its 60 page judgment observed that the parliament could enact the impugned statute, under power conferred under article 248 read with list 1 entry 2, entry 97 and entry 2A, inserted after the 42nd Constitutional amendment.
The verdict borders on the extreme edge of technical formalism of the crudest positivist kind, which is totally devoid of the public justice, as accepted at this stage of our civilization. Till a full bench of the apex court (13 Judge or so) decides, the positivist verdict stands in justification for a draconian law. The Supreme Court in spirit upholds a NAZI statute in India.
The PUDR rightly observed, “The court refused to go into the actual working of the Act and deemed it irrelevant for purposes of deciding its constitutionality” and the basic fact that the Constitution does not envisage long term deployment of the armed forces in civilian areas has been concealed.
VI The apex court did not apply to mind to the relevance of humanitarian laws to the conflict – situation in the NE region. It has deliberately overlooked India’s treaty laws like the ICCPR, 1966.
The universal benchmark of rule of law
INTERNATIONAL STANDARDS

All the black laws – particularly, the AFSPA, 1958 – enacted by the parliament of India are found to be manifestly incompatible with the international standard for the following reasons:
1) The United Human Rights Committee in 1991 found section 4 of the AFSPA and other sections too, to be incompatible with articles 6, 9 , and 14 of the International Covenant on Civil and Political Rights, 1966, the compliance of which has become Union Government’s binding obligation, following India’s ratification of the Covenant on 10 April, 1979; the incompatibility has not yet been rectified by the union government; ‘Tight to life’ cannot be violated even when he life of a nation like India is being threate4ned during war. The union government has blatantly violated article 4 of the ICCPR for 50 years.
II) The UN Human Rights Committee in 1997[CCPR/C/60/IND/3 -1 August,1997,Geneva] had observed the following for necessary compliance by the government of India, and also for reporting on the compliance in 2001 when the 4 th periodic report of India was due –ie. 5 years back from the present :
“ 18. The committee …. Hopes that its[AFSPA] provisions will also be examined for their compatibility with the Covenant.
19. The Committeee regrets that some parts of India have remained subject to declaration as disturbed areas for many years- for example the Armed Forces (Special Powers )Act has been applied through out Manipur since 1980 and in some areas of that state for much longer-, and that in these areas,the State party is in effect using emergency powers without resorting to article 4,para 3 of the Covenant.
21.---It urges that judicial enquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such enquiries including those under the Commission of Enquiry Act of 1952, be empowered to direct prosecution of security and armed forces personnel.
22.The Committee … recommends that the National Human Rights Commission be autghorized to investigate all allegations of violations by agents of State.
23.---,it[the HR committee] recommends: a. the early enactment of legislation for mandatory judicial enquiry into cases of disappearances and death,ill-treatment or rape in police custody.
35. The Committee… requests that,its next periodic report due on 31 Decem,ber,2001,should contain material which responds to all these Concluding Observations….”
III) The enlightened opinion passes strictures on the violation of human rights by the state with the instrumentality of black laws. The Amnesty International in 1993 had recommended that the government should review the black law and incorporate the minimum safeguards, as provided in the relevant articles of the covenant. The Amnesty had further recommended in April 1997 that the Government of India should “review the Armed Forces (Special Powers) Act to ensure that there are strict legal limitations on the use of force and firearms by law enforcement officials”, and “remove the requirement of sanction for the prosecution of police or armed forces personal under section 7 of the Armed Forces (Special Powers) Act.”
IV) The human rights organizations in India had submitted memoranda to the National Human Rights Commission by censuring and denouncing sections 3, 4 and 5 of the AFSPA, which have been instrumental in the gross violations of human rights.
V)The UNHRC in 1997 has recommended that the government of India should remove restrictions, given by article 19 of the 1993 Human Rights Act.
VI) Prevention of terrorism (Additional Powers) Act 1967 and also the 1989 Act had been inappropriately cited as reference point of United Kingdom.
But they are temporary measures unlike the perpetual AFSPA. In United Kingdom, the anti terrorist Act of 1989 – now 1996 has been invariably followed by a political package like the ‘Downing Street Declaration’ (Anglo – Irish), December 15, 1994 prescribing right of the Irish people to Self determination and 10th April Belfast Agreement 1998. In British India also, the demoniacal Armed Forces (Special Powers) Ordinance 1942 was not enacted without itself being followed by the complimentary, all healing Indian Independence Act, 1947. The Brits are relinquishing Northern Ireland in phases by virtue of the 1998 Agreement.
VII)The Non Self Governing Territories – NSGT in North East region are in need of de-colonization and a popular consultation could be arranged as it has been in East Timor on 30 August, 1999.
TASK AHEAD
The gross human rights violations in the North- Eastern states of India have been fully documented by human rights NGOs in India. The Amnesty International observes that the AFSPA 1958 empowers the government to make ‘de facto derogation from non derogable covenant rights’ and it has urged upon the UNHRC to examine the factum of this derogation. By criticizing the black law – AFSPA 1958 and the license to shoot and kill and citizen merely on suspicion, SHRDC observes, “These provisions give a broad license to extra judicially execute” innocent and suspected persons under the disguise of maintaining law and order. It violates every norm of civilized society. The juridical conscience in the apex court and elsewhere legitimized extra-judicial massacres. This is deplorable in the sense that the world community opposes extrajudicial massacres.
The UN Human Rights Committee while showing deep concern at the state’s continuing reliance on the AFSPA, the Public Safety Act and National Security Act, which are incompatible with Article 6, 7,9 and 14 of the Covenant recommends in 1997 that the insurgency problems which are essentially political in character be resolved with means that are compatible with the Covenant. Reacting against clause 19 of the Protection of Human Rights Act 1993, the UNHRC recommends that “these restrictions be removed and that the National Human Rights Commission be authorized to investigate all allegations of violations by agents of the State.” The government continues to uphold illegitimate derogation of the ICCPR, 1966.
The union government of India has already considered the insurgency as a political question and initiated unconditional political Dialoque with certain section of hill insurgents since August 1997; but it left out other effective and equally viable insurgent groups from the political Dialoque on the chronic political questions. The United Nations Human Rights Committee in its recommendations had also noted that the issue is simply political that calls for political solution. The very fact of holding political negotiation between the union government and the insurgent group on the initiative of the former has disproved the administrative misnomer in treating the political questions as ordinary law and order problem. The polemic is blatantly self contradictory.
The Supreme Court bench, headed by Chief Justice J.S Verma heard seven petitions challenging the constitutionality of the impugned Armed Forces (Special Powers) Act, 1958, the first of which has been filed by the Manipur Human Rights Forum in October 1980. The bench upheld the law that interferes with the deep rooted political question. India’s defence Minister, George Fernandez, however, calls for repeal of the black law of 1958 during his tenure. The continuance of this black law gives a fill up to the insurgency. The PUDR report,May 1998 –‘ An Illusion of Justice- Supreme CourtJudgement on the Armed Forces(Special Powers) Act ‘ had criticized the supreme court verdict on the AFSPA. It records,” The court refused to go into the actual working of the Act and deemd it irrelevant for purposes of deciding its constitutionality.”[Report p. 3].
Justice Reddy report has found little comfort with the supreme court judgement on AFSPA.It has observed,” It is true that the Hon’ble Supreme Court has upheld its constitutional validity but that circumstance is not an endorsement of of the desirability or advisability of the ACT….The Court does not- it is not supposed to-pronounce upon the wisdom or necessity of such an enactment.”[Report.p. 74]. It appears that the Supreme Court had acted more on legitimization of extrajudicial executions of genocidal nature than upholding the firmly established constitutional values on sanctitiy of human life and the international rule of law on human rights which have direct bearing with the Indian laws and obligations.

After prolonged mass movements in Manipur state of the country, in the wake of gang rape and extrajudicial execution of Miss. Thangjam .Manorama by the 17th Assam Rifles on 11 July 2004, for the immediate repeal of the infamous AFSPA which had been mercilessly invoked for half a century in the entire North- East region, the prime minister admitted the inhumane nature of the black law, and constituted a five-member committee under the chairmanship of Justice B. P. Jeevan Reddy, who submitted the report in June 2005 to the prime minister for necessary action .
The Report (Jeevan Reddy committee report) made two major recommendations-firstly, for total repeal of the AFSPA, 1958 and secondly, for incorporation of some of the provisions of the black law in the Unlawful Activities (Prevention) Act, 1967 as amended in 2004.

It has observed,”.the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.” The main recommendation is _

“(a) the armed Forces (Special Powers) Act, 1958 should be repealed
.Therefore, recommending the continuation of the present Act, with or without amendments, does not arise.” (See page 74 of the report)

However, the report has encouraged backdoor- entry or colorable legislation of some of the nefarious provisions of the otherwise would-be- repealed statute in another existing statute in virtual departure of the committee’s firm stand against inhumane provisions. The Report states:

“(b) The Committee is also of the firm view that it would be more
Appropriate to recommend insertion of appropriate provisions in the
Unlawful Activities (Prevention) Act, 1967(as amended in the year 2004)-
Which a cognate enactment is as pointed out in Chapter III Part II of this
Report instead of suggesting a new piece of legislation.” (See p.75)
Reddy report suggests, among others, for incorporation in the ULAPA,2002 the following;

“ (5)(b): In the course of undertaking operations mentioned in (a) above
,any officer not below the rank of a non-commissioned officer,may,if
it is necessary,in his judgement for an effective conduct of operations
,use force or fire upon,after giving due warning, an individual or a
group of individuals unlawfully carrying or in possession of or is
reasonably suspected of being in unlawful possession of the articles
mentioned in Section 15 of this Act.”
[Report p.84]
The Report suggests :
“ Section 40-E : The Armed Forces(Special Powe) Act,1958 is repealed
Herewith.” [ p.87]
The report has been silent on the preponderant issues relating the prevention of extrajudicial executions and termination of impunity of the offenders.The studied, possibly calculated silence would encourage the law-makers and law interpreters to take complete liberties with the life of citizens.Immediately after receipt of the report, the army reacted strongly that they are in dire need for powers to commit extrajudicial executions and immunity for the crimes, they would like to commit.The state has encouraged the forces to identify nationalism with extrajudicial executions and absolute immunity. By the human rights standard, these arguments are untenable.

Before tabling the report to the parliament, in an apparent breach of the privilege of the house, the government submitted the report to the Indian army .The chief of the army General J.J. Singh asked for immunity of the soldiers from judicial scrutiny of alleged crimes committed by the members of the forces. He has stated:” We cannot fight with both hands tied behind our backs. We need some sort of immunity for our soldiers from court cases.”(Telegraph, Guwahati, 21 October, 2006). The world community stands as one man to terminate impunity of heinous criminals, and the rule of law evolved by human civilization does not deserve termination at the hands of powerful terminators or institutions.

New Delhi summit of civil society organizations held at the Press Club on 17 October,2006 in presence of large number of print media of the country, which meticulously and very systematically like the Goebbel’s media blacked out the proceedings from professional reporting for extraneous reasons under the conventional cloak of press liberty or whatever they had in their mind, addressed by the national HR leadership including Mr Collin Gonzales, Professor Naorem Sanajaoba, Mr Ravi Nair of SAHRDOC, Amnesty International-India , Mr Loitongbam .Babloo, among others, has urged upon the union government of India to forthwith scrap the black law-AFSPA,1958, and also to see subsequently that black norms recommending extrajudicial executions, torture and according impunity to extrajudicial executioners are not incorporated in any other existing law. Some of the speakers alerted that military rule should not be imposed all over the country subsequently after the repeal of the black law in the name of anti-discrimination. Sevreal rallies followed suit in the NE region and New delhi.UK Manipuris made a protest on 1oth December 2006 at Trafalgar square for the repeal of the balck law

WHY THE PARLIAMENT SLEEPS OVER REDDY REPORT?

The draconian law – AFSPA – 1958 – that violates the vital provisions of the International covenants to which India is a party, infringes upon the basic tenets of civilized norms and ‘Rule of Law’ for the last half a century ought to be scrapped from the statute book once and for all. Whereas Indian nobel laureates or ultranationalist intellectuals would like to prefer silence on the repeal issue, Nobel laureate Shirin Ibadi has vowed on November 28 this year in New Delhi that she would take up the AFSPA repeal issue to the UN High Commissioner for Human Rights, the recently established UN Human Rights Council and all the international fora and also to the Speaker of Indian Loka Sabha, among others.
After her one hour long meeting with the Manipuri iron lady on hunger strike for 6 years- Irom Sharmila Chanu at AIIMS private ward bed no.56 at New Delhi, the peace Nobel laureate has stated that,her one hou rlong tape-recorded talk with Sharmila would be handed over to the UN Human Rights Council for stopping the half a century long state repression of the helpless Manipuris.[See the HINDU daily, 27 Nov,2006,p. 12] The Iranian Nobel laureate spoke to the HINDU daily[ 29 Nov.2006 p.3] that the Indian parliament, the courts and the armed forces should be responsible if Sharmila dies. It is rather late for the international community and the members of the Indian parlaiment to remain silent on this issue for half a century.
The deep structured political and nationality questions that characterize the turmoil in the North- Eastern states, Manipur in particular for half a century deserve political attention and resolution. Notwithstanding the changing political dynamics and fluidity in the discourse – pattern, the fact remains that the global human rights standard should not be at all compromised with one pretext or another for such a long time in a situation of de facto unproclaimed emergency and the state responsibility in this context shall no longer be abdicated .
The prime minister failed to table the Reddy report to the parliament even today.Instead, the report has been made available in blatant breach of the privilege of the house to the security forces which are the muscle of the executive wing of the government, for their recommendations, without taking the parliament into confidence No unprejudiced parliamentarian in the country including those from Manipur and the NE region had ever raised the breach of the privilege of the house when this impropriety had been committed by the home minister and prime minister of the great country and greater parliamentary traditions.If the prime minister has respect for the Reddy report, he had been left with no option other than repealing the black law first before taking up other considerations whatever. The Indian MPs like the MPs of the third Reich of Germany conveniently sleep over the Reddy report without exercising their constitutional mandate to examine the report.Some local degenerate- so called communist of motherland India [a la Akhand Bharat of a Fascist party]- make local populist noise menace in Imphal municipality only, inspite of urging upon their party MPs to withdraw immediately from the working de-facto coalition at Delhi unless they repeal the black law.
The Hindu editorial [4th December p.10-“ Repeal the Hated Act”] has been critical of the prime minister’s non-action at the Reddy report for a year and a half.It has categorically urged upon the conscience of the nation and the union government in these words-“ The situation demands that AFSPA go lock stock and barrel,so that the non –acountability of the armed forces to the rule of law is ended and the people of the North East are invested with the same undiluted Right to Life that people elsewhere in India enjoy.”
It is time that the government of India repeals immediately the infamous AFSPA and, in due course of time, signs the ICC Rome treaty, 1998 and terminates impunity that the government of India had consistently espoused for half a century in the peripheral North Eastern region and elevated to a new great Indian tradition.

--------------------------------------------------------------------------------

[1] The author is a human rights defender and a social activist in the NE region of India for more than 4 (four) decades and is a reknown author of several internationally distributed books on human rights, humanitarian laws, among others..

AFSPA: Manipur woman's marathon fast

AFSPA: Manipur woman's marathon fast

Sharmila says her battle is symbolic Guarded by armed policemen, a frail young woman lies on a bed in Jawaharlal Nehru Hospital in Imphal, capital of the north-eastern Indian state of Manipur.

On hunger strike since 2000, Irom Sharmila Chanu is being force-fed through a pipe in her nose on the orders of the state administration.

The 35-year-old is an iconic figure in Manipur's politics. She completes six years of fasting in November, in what is perhaps the longest such political protest ever recorded.

Sharmila is demanding the repeal of the controversial Armed Forces Special Powers Act or AFSPA, which gives sweeping powers to the army in the state.

Manipur, with a population of 30 million, has been administered by the Indian army since 1980 and human rights organisations often describe the army's powers as "draconian".

Atrocity

While the government maintains that the law is necessary to restore normalcy in a state racked by a militant secessionist movement, civil society groups allege gross human rights violations by the army.

My fast is on behalf of the people of Manipur. This is not a personal battle

Irom Sharmila Chanu

In fact, Sharmila's hunger strike started after one such alleged atrocity.

Her brother, Irom Singhajit Singh says she began her fast after soldiers of the Assam Rifles paramilitary force allegedly killed 10 young Manipuri men in Malom.

"The killings took place on 2 November, 2000. It was a Thursday. Sharmila used to fast on Thursdays since she was a child. That day she was fasting too. She has just continued with her fast," says Mr Singh.

Three days later, police arrested Sharmila on charges of trying to take her life.

Later she was transferred to judicial custody and taken to hospital where she remains to this day, force-fed a liquid diet through her nose.

From her hospital bed, Sharmila says she will not budge under pressure.

There have been a number of protests against the law

"I will withdraw the fast as and when the government withdraws the Armed Forces Special Powers Act unconditionally."

Hers is not a lone voice.

In 2004, Manipur erupted after the brutal rape and murder of a young woman activist, Manorama Devi, allegedly by soldiers of the Assam Rifles.

After days of violent protests, the government withdrew the law from certain areas of Manipur.

'Symbolic battle'

But Sharmila says she will relent only after the law is withdrawn from the entire state.

She is doing her job - we are doing our duty Police chief AK Parashar

"My fast is on behalf of the people of Manipur. This is not a personal battle - this is symbolic. It is a symbol of truth, love and peace," she says.

As one would expect, the years of hunger strike have taken their toll on her health.

Doctors say her fasting is now having a direct impact on her body's normal functioning - her bones have become brittle and she has developed other medical problems too.

The government cannot afford a high-profile martyr for the Manipuri nationalist movement. So they cannot let Sharmila die.

To keep her alive, she is fed a cocktail of vitamins, minerals, laxatives, protein supplements and lentil soup through the nose with a rubber pipe.

The state director general of police, AK Parashar, says: "A young citizen of the country cannot be allowed to die. We have an obligation to see that she doesn't die an unnatural death.

"We are doing our best to keep the young lady alive. She is doing her job - we are doing our duty."

The editor of a local daily newspaper, Irengabam Arun, feels the administration has its own reasons to keep Sharmila alive.

"On the one hand, human rights activists across the world know about her and on the other hand, if she dies, the armed forces act will be back on the centre stage. The government cannot afford that," he says.

In Manipur, women have always been at the forefront of political and social movements. And many say Sharmila is part of that legacy.

But some analysts say her protest may be losing its sting. And that she may be fighting a losing battle.

Sharmila's health is failing fast

The Armed Forces Special Powers Act, which is operational in the north-eastern states of India and Jammu and Kashmir, has been in force in Manipur for 26 years now.

A committee formed by the government has suggested the act be scrapped, but its report has been rejected.

"The AFSPA is to stay. It is difficult for the armed forces to function without it", says India's Defence Minister Pranab Mukherjee.

So Sharmila continues her unequal battle against the Indian state - sacrificing, according to her brother, "what could have been the best years of her young life".

Manipur woman's marathon fast
By Suvojit Bagchi
BBC News, Manipur
BBC

Center for Justice and Peace in South Asia
Centre pour la justice et paix en Asie sud

An advocacy group for Indigenous and Minority Rights

AFSPA: Sharmila discharged but not allowed to leave

Sharmila discharged but not allowed to leave

IMPHAL, Dec 14: In what can be described as a mockery of Irom Sharmila`s six-year struggle against the Armed Forces Special Powers Act, 1958, she was ostensibly discharged from the All Indian Institute of Medical Sciences, AIIMS, today, but was prevented from leaving the hospital.

According to a report from New Delhi, the AIIMS authorities informed Sharmila and her attendants at around 3 pm this afternoon that she was being discharged. However, she was not allowed to leave the hospital without a clearance from the Union ministry of home affairs.

It is worth mentioning here that the petition filed by Sharmila`s brother, Irom Singhajit in the Delhi High Court praying that her actual condition and status be made known to him comes up for hearing tomorrow.

The Delhi police had earlier submitted to the court that Sharmila is not under arrest.

According to the Delhi report, Sharmila was clearly told by the AIIMS authorities that with her discharge, doctors and nurses would no longer attend her.

The report added that Sharmila, upon learning that she would not be allowed to leave even after her discharge, forcibly removed her nose-feeding tube, and may thereby have suffered some injuries.

The report added that upon learning of Sharmila`s `discharge`, representatives of the Apunba Lup students from Manipur as well as representatives of the all party political forum who are presently camping in Delhi, gathered to continue the protest along with Sharmila at the Jantar Mantar, but later dispersed upon learning the true state of affairs.

Meanwhile, volunteers of the Kumaon University Manipuri Association staged a protest demonstration at the Kumaon University today extending solidarity to Sharmila`s struggle for the repeal of the Armed Forces Special Powers Act 1958.

You can log on www.kanglaonline.com

Best,
Sapamcha Kangleipal
President,
Manipur Forward Youth Front(MAFYF)
Manipur.(INDIA)

PEOPLE CONDEMN STATE-LED VIOLENCE AND REPRESSION AND DEMAND REPEAL OF AFSPA

PEOPLE CONDEMN STATE-LED VIOLENCE AND REPRESSION AND DEMAND REPEAL OF AFSPA

THE LIBERALISATION POLICIES OF GOVERNMENT ARE FURTHER MARGINALISING POOR,DALIT AND ADIVASI WOMEN

The final day of the People's Parliament culminated with the theme of Violence. The first session focused on Violence on Women and their
right to resources. The second session looked specifically at State Repression and Militarization. Kalyani from Jagori, Delhi moderated the session on 'Violence against Women' started by saying that women's issues and rights cannot be seen separately from all other rights. "The new economic policy and religious fanaticism has only strengthened patriarchy and made the life of women worse." Uma Chakravarty, Delhi, gave an overview of State Violence since the Delhi riots of 1984, the 2002 Gujarat carnage, the agitations against AFSPA in Manipur upto what is happening today in Kashmir. Gujarat was not only communal violence but it was also very patriarchal in its barbaric treatment towards women during riots. In state sponsored violence it is the women who are attacked. In Kashmir more than 8000 women are missing and there is no record of it. Meera and Kusum Karnik from Maharashtra, highlighted the status of adivasi women. "Large projects
and increasing industrialization has led to forced displacement of which women are the worst affected. They lose community co-operation and support and forced to survive in an alien society which is completely insensitive towards them" Sunita, National Dalit Forum, Hyderabad said that Dalit women face exploitation "four times that of other women", namely economic, cultural, religious and internal. Dalit women have to face the brunt of caste led violence, rape, molestation, harassment like in the Khairlanji case recently. "Our study of Telangana area shows that the highest rate of HIV/AIDS is among Jogini's who are Dalit women" The Indian Government's privatization policy has brought so much competitiveness in available job standards that they are difficult to meet by poor Dalit women or girls, who have no access to education. Dalit woman's rights over land was another major issue raised. Even today land titles are in the name of the men
in the family, hence, they control resources of the family. Hazira Bi, an activist and victim of the Bhopal Gas Tragedy spoke about the plight of women after the gas tragedy in 1984. "We have been demanding drinking water facility in affected area from past three decades but even after Supreme Court order of 2004 the Government failed to provided it".Last year the victims of Bhopal walked 100 km from Bhopal to Delhi with our demands are yet to be met. On March 5th this year they started a fast for their demands but were forced to end their protest and brutal police force was used to disrupt our movement. Ghar Bachao Ghar Banao activist Syeda Khatoon and Shanti Devi from Mankhurd, Mandala, Mumbai presented their experiences of police brutality in evicting slums of Mumbai. They said that after 2004 their lives have been on the roads, "our kids have become wanderers because they burnt our homes, demolished schools in our localities, they
are merciless and do not treat us like humans." Many of the womens have lost their children. If at all the Government thinks of compensation is of material loss but how can the life of children be compensated. Sandhya Devi from Kalahandi, Orissa castigated the devastating impact of mining projects on the lands culture of Adivasis. As it is the women, who sustain the community and are in the forefront of the struggle, they are also the ones who are targeted by the goons of the Vedanta Alumina company. She emphasized the need to defend Adivasis land rights and culture. Annie Raja of NFIW picked up from the moving presentations and shared how in the present budget the survival rights of women in agriculture and urban slums are not respected, while MNC'c and military expenses are privileged. She emphasized the need for protracted struggles to resist globalization policies and SEZ's. The first session 'women rights issues in the context of
liberlization, globalization and privatization' chaired by the national convener of NAPM Ms. D. Gabriele from TamilNadu. The afternoon session on State Repression and Militarization brought out issues from all over the country ranging from the state sponsored violence in Orissa, Jharkhand and Chhattisgarh in the name of development and industrialization and the increasing militarization of regions like North East and Jammu and Kashmir. In North East and Kashmir, the Armed Forced Special Powers Act 1961 has provided unprecedented powers to the army to arrest on grounds of suspicion and without any repercussions. Erome Sharmila has been fasting for 7 years now with a demand for Repeal of the Act which has been used to torture people, molest and rape women and kill thousands of people. Tapan Bose, a human rights activist said in the last 20 years in Kashmir alone, at least 1 lakh people were killed and over 5000 missing. The region has over
5 lakh Army Jawans posted for a population of over 4 crore. Nandini Sunder, Professor Delhi School of Economics, spoke about the militarisation and divisiveness being created by the Congress and BJP governments in Bastar, Chhattisgarh, in the name of fighting Naxal forces. More than half of the Dantewada district of Bastar has been cleared out with more than 3000 families having been shifted out of their homes into refugee camps. "Thousands of people are migrating into neighboring regions because of this campaign called Salwa Judum which the government has initiated in the area.But there is no offical record of the number of people affected by Salwa Judum" Women and children have been the worst affected. Poorno, an activist from Kalahandi, Orissa spoke of the use of violence in Kashipur, Kalinganagar and Kalahandi from promotion of industrial projects of big companies. The adivasi communities residing in these areas for centuries are
being forcefully displaced and each time they have resisted the police and armed force has been used to repress the movement. The same is the case in Jharkhand. Examples of the struggles against the Netrahat field firing range and Koel karo Dam were given were people have had to fight unarmed to maintain their right to their lands and forests in the face of severe physical violence by the state. Several people over last few years have lost their lives. Yet over the past few years instances of state repression have only increased. "All the companies are eying or mineral resources and the state to earn revenue is not just selling out the resources to private companies but is also helping them by using force and violence to curb resistance" In the days to come, ACTION 2007 will continue the struggle on the streets of Jantar Mantar. Co-ordination Committee ACTION 2007

For Further Details Please Contact-9910354505 _______________________________________________________

Delhi Office: Action 2007, 1-A, Goela Lane, Under Hill Road Civil Lines, Delhi � 54 Tel.: 011-23933307 , Rajendra Ravi (0-9868200316 ), Vijayan MJ (0-9868165471 ) Mumbai Office: Action 2007, C/0 Chemical Mazdoor Sabha, 28-29, First Floor 'A wing' Haji Habib Building, Naigaon Cross Road , Dadar (East), Mumbai-400014, E-Mail: action2007@gmail.com Tel.: 022-24150529

AFSPA: The hated Act must go

AFSPA: The hated Act must go THE HINDU -23-10-06

The Armed Forces (Special Powers) Act, 1958 "should be repealed," as the Justice B.P. Jeevan Reddy Committee set up to review its provisions has recommended unambiguously. "The Act is too sketchy, too bald, and quite inadequate in several particulars," the committee explains, adding that "for whatever reason" it has become in the Northeast "a symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness." It balances this recommendation by noting that "the overwhelming desire of the overwhelming majority" of people in the Northeast is that "the Army should remain [though the Act should go]." The 147-page report was submitted in June 2005. For the United Progressive Alliance Government to procrastinate any longer on tabling it in Parliament, and acting on it, would be political folly of the first rank. This newspaper obtained a copy of the report and published its highlights in the issue of October 8. Subsequently, it posted, in the public interest, the whole report on its website ManipurFreedom.org- campaign website against AFSPA The draconian Act - a hand-over from the British Raj - was brought into force in 1980 in parts of the Northeast, including Manipur where opposition to it is strongest. Labelling virtually the whole State as a "disturbed" area, the armed forces have had a free run under cover of the Act, which empowers them to arrest, search, and shoot anyone on the basis of mere suspicion.

The rape and murder of Thangjam Manorama by men of the Assam Rifles in 2004 as well as other incidents came in the backdrop of the structure of high-handedness it engendered. Reliance on such statutes to perpetrate state violence invites counter-violence in a region that should be doing much better. All this slows down the search for political solutions and undermines development effort.

There can be no quarrel with the committee's recommendation that the armed forces should stay on in the region, given its continuing volatility. However, the rationale for the suggested incorporation of certain provisions of the hated Act in other laws is dubious. The state already has all the powers it needs in other instrumentalities. Through repealing the Act, the Government can set the stage for an active peace process, especially in Manipur (which accounts for nearly 40 per cent of all violent incidents in the Northeast). That draconian laws cannot be repealed so long as there are forces that conduct politics through violence is a morally feeble argument. It sanctions a vicious cycle in politics. If the Government asks the right question - do the armed forces need extraordinary protective guarantees and immunity in the line of duty more than the ordinary people need the constitutional protection - it will come up with the right answer.

Visit Manipur Freedom.org for More Information and followup of campaign to repeal AFSPA

Brother still longs for justice in sister rape after 32 yrs

Brother still longs for justice in sister rape after 32 yrs

KUMRAM (Ukhrul), Sep 23: Since the day her lovely sister Rose Machui was found hanging inside a room in their homestead two days after she was gang-raped by security forces, a lingering fear still inhibits N Prengam from lodging a complaint at the proper forum or law courts. His sister`s rape, one of the most heart rending, involving security forces was hushed up through o a compromise between the family and the Border Security Force. The official version was that the death was caused by either an illness or else a case of suicide.

But, even after 32 years, Rose Machui`s brother, Prengam still long for justice and to this day the scars left by his sister`s ignominious demise refuses to go away.

Talking to this reporter , N Prengam bared his heart and expressed his strong condemnation and anguish over the manner true facts about his sister`s rape incident have been concealed.

Mentioned may made that Rose Machui was allegedly gang-raped by two officer of the Border Security Forces on the night of March 4, 1974 and she committed suicide on March 6, 1974 by hanging inside the kitchen of her own house. The two BSF officers were identified only as Major Bondir and Captain Negi.

In an exclusive interview, Rose`s surviving brother Prengam told this reporter that he is still fearful of complaining to higher authorities or at a proper forum for getting justice over his sister`s rape incident.

During the time, no one, not even the village elders, dared speak a word against the security forces. Security forces acted at their will and drive villagers to any direction they intended them to take.

Recalling that fateful day to this reporter, Prengam said that that about 500 personnels of the Border Security Force came to Kumram village for counter insurgency operation on March 4, 1974.

Every men and women of the villagers were called out and no one were allowed to move from the position they were told to hold. Three girls amongst the villagers including Rose were chosen by two BSF officers commanding the trooper to help them in preparing food and arranging bedsheets and blankets Prengam said adding the names of the other girls were Chonmila (now 47) and Thamila (now 52).

After both Chonmila and Thamila were told to procure extra cloths and blankets for them, the two BSF officers raped Rose inside a house in the village where the two BSF officers had chosen for their stay in that night.

"However, Rose did not disclose anything about the incident. We came to know about the rape incident when only a handwritten letter of her was found after she was found hanging inside our house", Prengam said.

Rose, as narrated by Prengam wrote, "Oh! my lovely brother, Angam, through this small piece of paper, I am delivering few words of my last moment of life that I do not want to live anymore on this earth full of disgrace and shame. I felt sad that I could no longer sleep with lovely Aphe (sister) as today is my last day.

No one can save my precious life and I have no other option but to follow the stream that life takes.

If my lovely friend Amei Stone happened to visit me, please tell him that the incident happened as I am telling you through this letter.

Dear brother, I believe that justice will not prevail in my case for they (security forces) are clever and powerful. Do not go for trial as I believe God will surely bring justice.

If I happen to go on life with the situation I was in, me as well as my family will be dishonored and I do not want to lead such a life. My brother, do not shed any tears or cry for me as I could no longer hear and see you. All of you lead life in a happy and joyous way and let us meet together in heaven."

Born to N Pinu (mother) and N Angte (father), on February 2, 1954, Rose Machui was a bright student of Grihang Sadar Patel High School, Grihang and she had cleared class IX and she was awaiting class X session to begin at the time of her death.

Both Chonmila and Thamila, who were with Rose moments before she was gang-raped, are still living and they still believe that justice will surely be delivered one day.

Sapamcha Kangleipal
President,
Manipur Forward Youth Front(MAFYF)
Manipur.(INDIA)
www.mafyf.org

IROM SHARMILA'S HEALTH DETERIORATES

IROM SHARMILA'S HEALTH DETERIORATES

New Delhi: 19th January 2007
The health condition of Irom Sharmila Chanu deteriorates under the arbitrary detention of Delhi police in Ram Manohar Lohia Hospital. Since 7 th October 2006 she has been detained in two different hospitals (AIIMS and RML) at Delhi. Since then she has lost 4 kgs. and her current body weight is only 37 kg.

Today, the Delhi High Court heard the two fresh applications filed by her brother Singhajit. The first application asked for RML to be made a party to the case and also to handover all medical records to Sharmila's family. So far the hospital had refused to give any medical reports. The High Court has now asked for copies of all medical records to be produced on Tuesday, 23 rd January – the next date of hearing. The Court has expressed its opinion that Sharmila can be detained in order to protect her health. It is critical to note that during six years of detention in Manipur her weight had remained almost constant.

The second application was for Sharmila to be allowed to attend a meeting in New Delhi. The Court will decide the application on Tuesday after receiving and assessing for itself Sharmila's health status.

Since November 2000, the 'Iron Lady of Manipur', Sharmila has been on hunger fast for the repeal of the repressive Armed Forces Special Powers Act. Determined to continue her agitation for justice and peace, she is currently detained at Room No. 8 A, Nursing Home, Ram Manohar Lohia Hospital.

-------------------
For further information contact:
Kshetrimayum Onil – 98187 81767
Coordinator Desk for Sharmila's Struggle

India's shame: Armed Forces Special Powers Act, 1958

India's shame: The Armed Forces Special Powers Act, 1958

REVIEW OF THE AFSPA

(An analysis of the draconian Armed Forces Special Powers Act, 1958)

 

 

Introduction

 

After the alleged extrajudicial execution of 32-year-old, Ms Thangjam Manorama Devi following her arrest as a suspected member of the Peoples Liberation Army (PLA) by the Assam Rifles personnel at 3.30 a.m. on 11 July 2004, Manipur faced unprecedented civil disobedience over the demand for removal of the Armed Forces Special Powers Act (AFSPA), 1958. Modeled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the AFSPA empowers non-commissioned officers to search without warrant, arrest without warrant and shoot even causing of death. The security forces enjoy virtual impunity for any excesses while exercising these unrestrained powers as no one can be prosecuted without the prior permission of the Central government.

 

As a response to the civil disobedience movement led by the Apunba Lup, the Government of India has set up the “Committee to Review the Armed Forces Special Powers Act, 1958”.

 

This paper examines the illegality of the provisions of the Armed Forces Special Powers Act.

 

Section 3: Undeclared Public Emergency

 

Section 3 of the Armed Forces Special Powers Act, 1958 provides that:

 

If in relation to any State or Union Territory to which this Act extends, the Governor of the State, or the Administrator of the Union Territory, or the Central Government in either case, is of the opinion that the whole or any is in such a disturbed or dangerous condition that the use of Armed Forces in aid of civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area”.

 

The process of declaration of emergency under the Armed Forces Special Powers Act, 1958 as amended in 1972, violates the provisions of the Constitution of India and International Covenant on Civil and Political Rights to which India is a party.

 

Domestic Law:

 

Under the AFSPA, the authorities only need to be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary." There is no definition of what constitutes “dangerous or disturbed condition”.

 

The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case (AIR 1983 Del 513). The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, it is not subject to judicial review.[1]

 

The Disturbed Areas (Special Courts) Act, 1976, however, provides a clear definition. Under the Disturbed Areas (Special Courts) Act of 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.[2]

 

In the original version of the Armed Forces Special Powers Act of 1958, only the state governments had the power to declare an area as disturbed. This was consistent with Article 246 of the Constitution of India[3] to be read with the 7th Schedule of the Constitution of India 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 an appointee of the Central Government. This is despite the fact that President can proclaim emergency under Article 356 of the Constitution of India.

 

Therefore, under the Armed Forces Special Powers Act, the Central government subsumes the powers of the State governments to declare certain parts or whole of a State or Union Territory under emergency with having to resort to the strictness required under the Article 356 of the Constitution of India.

 

Indian judiciary has failed to uphold the provisions of the Constitution and federal nature of the country in areas relating to internal conflict situations.

 

The Supreme Court of India in its judgement of 27 November 1997 stated that[4]:

“(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution.

 

(7) Section 3 of the Central act does not confer an arbitrary or unguided power to declare an area as a 'disturbed area". For declaring an area as a 'disturbed area" under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union territory of the Central Government can from an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of civil power is necessary.

 

(8) A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.

 

(9) Although a declaration under Section 3 can be made by the Central Government suo motto without consulting the concerned State Government, but it is desirable that the State Government be consulted while making the declaration.

 

(10) The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.

 

(11) The conferment of the power to make a declaration under Section 3 of the Central Act of the Government is not violative of the federal scheme as envisaged by the Constitution”.

 

On 28 May 2004, the Okram Ibobi Singh government decided to extend the disturbed area status for the whole of Manipur for a further period of six months under the Armed Forces (Special Powers) Act, 1958 as it was due to expire on 31 May 2004.[5] It was reported that the security forces were against withdrawal of the AFSPA. Since 1980, Manipur has been under undeclared emergency.

 

International Law:

 

India is party to the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides under what circumstances state of emergency can be declared. It states,

 

“1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

 

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

 

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”

 

The United Nations Human Rights Committee, in its General Comment No 29 on Article 4, explains the circumstances under which measures derogating from the provisions of the Covenant may be taken. It states:

 

“Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency, which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers.”[6]

 

Article 4(2) of the ICCPR requires that certain rights may not be derogated from under any circumstances. The Human Rights Committee in its General Comment No. 29 further states:

 

Article 4, paragraph 2, of the Covenant explicitly prescribes that no derogation from the following articles may be made: article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfill a contractual obligation), article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion). The rights enshrined in these provisions are non-derogable by the very fact that they are listed in article 4, paragraph 2. The same applies, in relation to States that are parties to the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty, as prescribed in article 6 of that Protocol. Conceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified. The reference in article 4, paragraph 2, to article 18, a provision that includes a specific clause on restrictions in its paragraph 3, demonstrates that the permissibility of restrictions is independent of the issue of derogability. Even in times of most serious public emergencies, States that interfere with the freedom to manifest one’s religion or belief must justify their actions by referring to the requirements specified in article 18, paragraph 3. On several occasions the Committee has expressed its concern about rights that are non-derogable according to article 4, paragraph 2, being either derogated from or under a risk of derogation owing to inadequacies in the legal regime of the State party”.[7]

 

The Human Rights Committee in its General Comment No. 29 further states:

 

“The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists. The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation”. [8]

 

In its General Comment No. 29, the Human Rights Committee developed a list of elements that cannot be subject to lawful derogation.[9] These elements include the

following: all persons deprived of liberty must be treated with respect for their dignity; the prohibition against hostage‑taking, abduction, or unacknowledged detention; the protection of persons belonging to minorities; the prohibition of unlawful deportation or transfer of population; and that “no declaration of a state of emergency … may be invoked as justification for a State party to engage itself … in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.”[10]

 

In any event, where derogation is invoked, there is an obligation under Article 4(3) to notify other States parties through the United Nations Secretary-General and to indicate the provisions from which a State has derogated and the reasons for such derogation.

 

Though Manipur has been under emergency since 1980, the government of India has not publicly declared a state of emergency but have taken emergency measures under the Armed Forces Special Powers Act, which derogate from treaty obligations in violation of the Article 4 of the ICCPR.

 

Not surprisingly, the United Nations Human Rights Committee while examining the third periodic report of India in 1997 held that India is in violation of Article 4.3 of the ICCPR. In its Concluding Observations after examination of India’s third periodic report, Human Rights Committee regretted that “some parts of India have remained subject to declaration as disturbed areas over many years - for example the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer - and that, in these areas, the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant”. Therefore, the Committee recommended that the application of these emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant.[11]

 

 

 

 

Section 4: Operation of the AFSPA

 

The operative clauses of the Armed Forces Special Powers Act, 1958 allow extrajudicial executions under section 4(a), destruction of properties and firing upon any absconder without any warning under section 4(b), arrest without warrant under section 4(c) and search and seizure without warrant under section 4(d).

 

A comparison with the relevant provisions of the Indian Criminal Procedure Code (CrPC) and Indian Penal Code (IPC) shows that the AFSPA violates the laws of the land.

 

Comparison of the AFSPA and Cr.PC. and IPC

 

Armed Forces Special Powers Act, 1958

Criminal Procedure Code, 1973/Indian Penal Code

 

 

1. Powers of Arrest

 

Sec. 4 Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-

(c) arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest;

 

41.When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

42.Arrest on refusal to give name and residence.- (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.

(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required:


Provided that, if such person is not resident in
India, the bond shall be secured by a surety or sureties resident in India.


(4) (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction

2. Powers of search and seizure

 

4. Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-

 

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that Purpose use such force as may be necessary.

 

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

 

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;

 

 

 

 

47.Search of place entered by person sought to be arrested.- (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance;

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

 

52.Power to seize offensive weapons.-The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested.

3. Power to open fire even to the extent of causing death

 

4. Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-

 

(a) if he is of opinion that it is necessary so to do for the maintenance of Public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

 

 

 

 

No specific right to open fire except what is given as under the following provisions of the Indian Penal Code–

 

76. Act done by a person bound, or by mistake of fact believing himself bound, by law
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

Illustrations
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.

(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.

 

100. When the right of private defence of the body extends to causing death
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-


First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;


Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;


Thirdly- An assault with the intention of committing rape;


Fourthly- An assault with the intention of gratifying unnatural lust;


Fifthly- An assault with the intention of kidnapping or abducting;


Sixthly- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

4. Immunity from legal consequences

 

Sec. 6-Protection to Persons acting under Act – No persecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

 

 

 

45.Protection of members of the Armed Forces from arrest.- (1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.


(2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

 

197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-


(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;


(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.


(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.


(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

 

For understanding of the operation of the Armed Forces Special Powers Act, 1958 and extrajudicial executions under the Act, the operative clauses of Section 4 of the Act needs to be read and considered in reverse order. While section 4(d) of the AFSPA allows search without warrant, section 4(c) allows arrest without warrant. The armed forces are allowed to destroy properties without any verification under section 4(b). The lack of any record while conducting search, affecting warrants or destroying properties facilitate extrajudicial executions under section 4(a). Under Section 6 of the AFSPA, the armed forces enjoy virtual impunity as none can be prosecuted without the prior permission of the Central government.

 

Section 4(d): License to search without warrant:

 

Section 4 (d) of the Armed Forces Special Powers Act, 1958 provides,

 

“Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area,

 

enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property or any arms, ammunition or explosive substance believed to be unlawfully kept in such premises: and may for that purpose use such force as may be necessary.

 

The search and seizure proceedings laid down in the Code of Criminal Procedure (CrPC) for the police are not followed by the armed forces. Yet, the Supreme Court of India in its judgement of 27 November 1997 while upholding the constitutional validity of the AFSPA assumed that the guidelines provided under the CrPC would be followed despite the myriad of instances where they were not.[12] The Supreme Court in its judgement of 27 November 1997 stated:

 

“(16) The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer in charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.

 

(17) The provision of Cr.P.C. governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.”

 

Section 4(c): License to arrest without warrant:

Section 4(c) gives the authorities the authorisation to:

 

“Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area, arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest;”

 

Under section 4(c), any one can be arrested on the mere suspicion that he/she is going to commit an offence. This violates provisions of the Indian Criminal Procedure Code and Article 22 of the constitution of India.[13]

 

The Supreme Court in its judgement of 27 November 1997 merely reiterates:

 

(15) A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.

 

The case of Luithukla v. Rishang Keishing, (1988) 2 GLR 159, a habeas corpus case, exemplifies the total lack of restraint on the armed forces when carrying out arrests. The case was brought to ascertain the whereabouts of a man who had been arrested five years previously by the army. The court found that the man had been detained by the army and that the forces had mistaken their role of "aiding civil power". The court said that the army may not act independently of the district administration. Repeatedly, the Guwahati High Court has told the army to comply with the Code of Criminal Procedure (CrPC), but there is no enforcement of these rulings. The provision violates the customary Indian Code of Criminal Procedure. Section 50(1) of the Code of Criminal Procedure provides that "Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest."[14]

 

Section 4(b): License to destroy property without verification

 

The next subsection reads:

 

if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;

 

Section 4(b) is in clear violation of the Indian Constitution. "The Supreme Court has laid down in judgement after judgement that absconding by itself is not conclusive either of guilt or of a guilty conscience."[15] The presumption of innocence against the absconders is not respected. In the name of absconders, the armed forces have destroyed homes, schools, and even churches. Every home in the North East is looked upon with suspicion and as a place from where armed attacks can be made"[16]

 

Section 4 (a): Lincense to kill

 

“Any commissioned officer, warrant officer, non- commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area, (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

 

This provision gives license to kill innocent and suspected persons under the disguise of maintaining law and order and violates provisions of national and international human rights law.

 

This provision of the AFSPA violates Article 21 of the Constitution of India. Article 21 provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law." The courts have explained that a "procedure established by law" under Article 21 is a procedure which is reasonable, fair and just.

 

"Does the honourable minister feel that this is the procedure, he can shoot if it is a disturbed area, that is the procedure established by law? He can shoot. Anybody can be killed or shot at, but is this procedure established by law, does it go to that extent? Article 21 says that no person can be deprived of his life. Here any person can be deprived of life by any commissioned officer, he can shoot." -- asked the Speaker of Lok Sabha on 18 August 1958 to the then Home Minister Mr G B Pant.[17]

 

One of the experts of the United Nations Human Rights Committee while examining the third periodic report of India in October 1997 stated, “The Indian delegation's arguments concerning the Armed Forces (Special Powers) Act were clear, but not wholly convincing. The delegation had said that rights were safeguarded because it was mandatory to obtain judicial permission before opening fire; that requirement, however, applied only in the case of illegal meetings and in all other circumstances the police could open fire at will. In addition, permission had to be obtained from the central Government before proceedings could be brought against members of the armed forces. According to the delegation, that permission was needed because in India anybody could initiate proceedings. His own answer to that argument was that in common-law countries there were other ways of preventing vexatious actions. He remained of the opinion that the requirement to obtain the central Government's approval was among the means of removing the army and the security forces from judicial control”.[18]

 

Article 3 of the United Nations Code of Conduct for Law Enforcement Officials stipulates under what circumstances the officials may use force. It states, Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. In its commentary it, further states

 

(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.

 

(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force, which is disproportionate to the legitimate objective to be achieved.

 

(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.

 

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990, restrict the situations in which firearms should be used, and specify the intentional lethal use of firearms only when strictly unavoidable in order to protect life.

 

“9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

 

10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

 

11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:

 

(a)    Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

(b)    Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

(c)    Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;

(d)    Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;

(e)    Provide for warnings to be given, if appropriate, when firearms are to be discharged;

(f)     Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.

 

Yet the Supreme Court of India in its judgement in the case of Naga People's Movement of Human Rights, etc. vs. Union of India on 27 November, 1997 held that “The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution…. While exercising the powers conferred under Section 4(a) of the Central Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.” The Supreme Court judgement failed to take into account the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary executions of 1989.

 

Section 6: Impunity to the armed forces

 

Under Section 6 of the Armed Forces Special Powers Act, "No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act."[19]

 

This provision virtually eliminates any prosecution of armed forces personnel.[20] This despite the government of India already provides impunity under Section 197 of the Criminal Procedure Code.

 

While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated “Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government's fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case”.[21]

 

In its Concluding Observations, the United Nations Human Rights Committee noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant”. Therefore the Committee recommended, “that the requirement of governmental sanction for civil proceedings be abolished and that it be left to the courts to decide whether proceedings are vexatious or abusive. It urges that judicial inquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such inquiries, including those under the Commission of Enquiry Act of 1952, be empowered to direct the prosecution of security and armed forces personnel”.

 

The Supreme Court in its judgement on the constitutional validity of the AFSPA stated that “Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons”.

 

The defiance by the Assam Rifles to appear even before the Justice C Upendra Commission of Inquiry into the Death of Thangjam Manorama Devi has exposed how presumptuous the Supreme Court of India was.

 

The armed forces have always been treated as holy cows. They are also kept out of the purview of the National Human Rights Commission under the Protection of Human Rights Act of 1993. Section 19 of Human Rights Protection Act of 1993 provides:

 

"19. Procedure with respect to armed forces

 

(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely:-

 

(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;

(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.

(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.

(3) The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by that Government on such recommendations.

(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.[22]

 

The NHRC basically serves as the glorified post box with regard to the violations by the armed forces. This is despite the fact that according to 2002-03 Annual Report of the Ministry of Home Affairs (MHA) of the Government of India, 14 out of 28 States of India are afflicted by internal armed conflicts.[23] Hundreds of thousands of armed forces consisting of the para-military forces under the control of the government of India and the army have been deployed. There have been consistent and credible reports of serious human rights violations by armed forces such as torture, rape, extrajudicial executions and death in custody.

 

A handbook on the establishment and operation of National Human Rights Institutions published by the Office of the United Nations High Commissioner for Human Rights in Geneva states that "Designating the military as exempt from the complaints mechanism may also have a detrimental effect on an institution's effectiveness, particularly in view of the strength of the military in many States and its corresponding potential to violate human rights."[24]

 

The United Nations Human Rights Committee while examining India’s third periodic report regretted that “the National Human Rights Commission is prevented by clause 19 of the Protection of Human Rights Act from investigating directly complaints of human rights violations against the armed forces, but must request a report from the central Government. The Committee further regrets that complaints to the Commission are subject to a one-year time limit, thus preventing the investigation of many alleged past human rights violations. Therefore, the Committee recommended that “these restrictions be removed and that the National Human Rights Commission be authorized to investigate all allegations of violations by agents of the State”.

 

The NHRC itself has taken up the issue on various occasions. NHRC urged that impunity to the armed forces bring no credit to the government and the security forces and “it thwarts the purposes of justice and the prime objective leading to the establishment of this Commission, namely the need to ensure the "better protection" of human rights in the country”.[25] The government of India in a "memorandum of action taken" of December 2003 on the 2001-02 annual report of the National Human Rights Commission (NHRC) of India however has rejected the NHRC’s demand for amendment of Section 19 of the Human Rights Protection Act (HRPA) of 1993 to give powers to investigate allegations of human rights violations against the armed forces. The government of India cited “compulsions of fighting cross-border terrorism” and “widespread politicisation of human rights issues” for rejecting the NHRC’s demand.[26]

 

4. Conclusions and recommendations

 

Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism — not privileges to be sacrificed at a time of tension.” – Secretary General Kofi Annan in March 2003 at a meeting of the Counter-Terrorism Committee of the Security Council with regional organizations.

 

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, short-circuiting of justice has blurred the distinction between those who are contemptuous of the law and those who preach the values of democracy, rule of law and due process of law.

 

The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions lucidly summarised the impunity and extrajuducial executions in her report to the 57th session of the United Nations Commission on Human Rights:

 

“Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity. ….., extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing justice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration. Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post‑conflict peace‑building efforts include effective measures to end the culture of impunity and protect the rule of law.”[27]

 

Manipur is an apt example.

 

Since Manipur has been declared as a Disturbed Area in 1980, according to Manipur Chief Minister Ibobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.[28] There were only about four armed groups in Manipur in 1980 and there are over 20 armed opposition groups at present. The AFSPA has manifestly failed to resolve the insurgency problem.

 

If the AFSPA is repealed, Asian Centre for Human Rights makes the following recommendations:

 

First, the state governments must have the sole right to declare certain areas or the whole of State as “disturbed” subject to the approval by the State legislative assembly. Therefore, Section 3 of the AFSPA be amended.

 

Second, the Supreme Court in its judgement stated that the AFSPA “does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power”. If that is followed in practice, the armed forces must operate under civil power. Therefore, provisions giving special powers to the armed forces pertaining for search and seizure under section 4(d), arrest under section 4(c), destroying hideouts of the “absconders wanted for any offence” under section 4(b) and the power to use force including “the right to fire upon or otherwise use force, even to the causing of death” under section 4(a) are inconsonant with the intent and be amended to comply with normal Criminal Procedure Code or Indian Penal Code. In fact, Section 5 of the AFSPA provides that “any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest”. If such a procedure could be laid down with regard to the arrest, there is no reason as to why similar procedure cannot laid down with respect to other provisions. The problem is such a procedure is seldom respected by the armed forces. Therefore, there is a need to incorporate necessary clauses both to ensure that the procedures are followed and punishment be awarded for the failure to respect the procedures laid down in the Act.

 

Third, Section 6 of the AFSPA has been overtaken section 197 of the Criminal Procedure Code. Since its amendment in 1991, permission from the concerned State or Central Government for prosecution is mandatory. 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.



[1].www.hrdc.net/sahrdc/resources/armed_forces.htm

[2].www.hrdc.net/sahrdc/resources/armed_forces.htm and the bare act is also available at http://www.northeastvigil.com/facts/nedocs/docdasc.htm

[3]. 246. Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State _219*** also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").

(3) Subject to clauses (1) and (2), the Legislature of any State 219*** has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included _220[in a State] notwithstanding that such matter is a matter enumerated in the State List.

[4] . Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84

[5] . Ibobi govt extends disturbed area status, The Telegraph, Kolkata, 29 May 2004

 

[6] CCPR/C/21/Rev.1/Add.11, 31 August 2001

[7] Ibid. See also the following comments/concluding observations: Dominican Republic (1993), CCPR/C/79/Add.18, para. 4; Jordan (1994) CCPR/C/79/Add.35, para. 6; Nepal (1994) CCPR/C/79/Add.42, para. 9; Russian Federation (1995), CCPR/C/79/Add.54, para. 27; Zambia (1996), CCPR/C/79/Add.62, para. 11; Gabon (1996), CCPR/C/79/Add.71, para. 10; Colombia (1997) CCPR/C/79/Add.76, para. 25; Israel (1998), CCPR/C/79/Add.93, para. 11; Iraq (1997), CCPR/C/79/Add.84, para. 9; Uruguay (1998) CCPR/C/79/Add.90, para. 8; Armenia (1998), CCPR/C/79/Add.100, para. 7; Mongolia (2000), CCPR/C/79/Add.120, para. 14; Kyrgyzstan (2000), CCPR/CO/69/KGZ, para. 12.

[8] CCPR/C/21/Rev.1/Add.11, 31 August 2001

[9] ibid.

[10] Ibid

[11] . http://www.hrdc.net/sahrdc/hrfeatures/HRF51.htm

[12] . Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84

[13] . Missions incompatible, by Suhas Chakma, The Telegraph, 8 July 1996.

[14] . Ibid

[15] In Rehman v. The State of U.P. A.I.R. 1972 SC 110 Also Raghav 1963 SC 74. As quoted in the Arguments and Submissions made in Civil Rule No. 11 challenging the Constitutional Validity of the AFSPA, pg. 30.

[16] As quoted in the Arguments and Submissions made in Civil Rule No. 11 challenging the Constitutional Validity of the AFSPA, 30.

 

[17] . Lok Sabha Debates on 18 August 1958, also quoted in http://www.hrdc.net/sahrdc/resources/alternate_report.htm? and http://www.india-seminar.com/2002/512/512%20suhas%20chakma.htm

[18] CCPR/C/SR.1606 of 21 November 1997

[19] . Missons incompatible, by Suhas Chakma, The Telegraph, 8 July 1996.

[20] http://www.hrdc.net/sahrdc/hrfeatures/HRF51.htm

[21] CCPR/C/SR.1606 of 21 November 1997

 

[22] National Human Rights Commission, The Protection of Human Rights Act, 1993,

[23] http://www.mha.nic.in/annual-2002-2003/ch-3.pdf

[24] Office of the High Commissioner for Human Rights, National Human Rights Institutions, no.4 (Geneva: United Nations, 1995), 29.

[25] Annual Report of NHRC 1999-2000

[26] The Asian Age, New Delhi, 25 January 2004

[27] . E/CN.4/2001/9 and Corr.1

[28] . Ibobi unhappy over mushrooming growth of ultras' outfits, The Sangai Express, Imphal,16 June 2003

 

Forums: 

Irom Sharmila: 'Iron Lady' Of Manipur By Subhash Gatade

Irom Sharmila: 'Iron Lady' Of Manipur By Subhash Gatade

Yes, 'n' how many times can a man turn his head, Pretending he just doesn't see? -Bob Dylan

Irom Sharmila.*(Age 34). Does that name sound familiar?

Well, like most of us this youngest daughter of Irom Nanda and Irom Sakhi Devi has many identities. For sister Vijayanti or brother Singhajit she is their dearest sister who had the 'never say die' spirit ingrained in her since childhood. For some of her dear friends she is an Yoga enthusiast who at times also dabbled in naturopathy. For litterateurs of Manipur, she is a budding poetess who has written hundreds of poems but till date only one of her collections 'Imadi Khongdai Setlaroi' has been published. And for the vast majority of Manipuris, she is not Irom Sharmila Thanu rather she is the 'Iron Lady of Manipur' who has challenged a callous and apathetic government and its regime of draconian law with her unique struggle.

Interestingly, despite plethora of TV channels and a boom in the print media, not many of us from 'mainland' India would be able to tell what made this young girl from a lower middle class family who could not even continue her education after 12 th, a legend in her own lifetime.

It is difficult to believe the saga of struggle of Irom Sharmila Thanu

In fact it will be nearly six years that she would be on her hunger strike.She has remained without solid food since then, demanding withdrawal from her state, of one of the most draconian laws in the statue books called Armed Forces Special Powers Act (AFSPA).

At present she is lodged in AIIMS, New Delhi where she is being 'nasal fed' by a team of doctors.

*Read More http://manipurfreedom.org/sharmila-Ironlady
Jeevan Reddy Committee Report online

The full text of the Report of the Committee, headed by Justice (Retd) B.P. Jeevan Reddy, to Review the Armed Forces (Special Powers) Act 1958, is now online at the Hindu website. Here is the link: http://www.hindu.com/nic/afa/
Read More Reports At : http://manipurfreedom.org

Background Materials on Armed Force Special Power Act & Sharmila's struggle:
http://manipurfreedom.org/background

~ In solidarity

Anivar Aravind
GAIA (Global Alternate Information Applications)

Public Fund Rising Request Campaign Against AFSPA

Public Fund Rising Request
Campaign Against AFSPA, Militarisation and Impunity public fund raising program request from all the Civil Society Organisations, involved in the struggle.

Dear All,

The long drawn campaign against AFSPA, Militarisation and Impunity has reach a crucial phase. The arrival of Sharmila in Delhi, who has been fasting for last 6 years to repeal AFSPA. This historical juncture must serve as a rallying point to strengthen the struggle. The subsequent visit of Shirin Ebadi, Nobel Peace has endorsed the ligitimacy of this struggle. The biggest ahead of us is the sustainance and strengthening of this struggle. There is a need for a nation-wide campaign against the AFSPA, Militarisation nad Impunity. As a part of the strategy, there is also a need to internationalise the struggle. Support in kind or monetary assistance to oversome some of our organizational handicaps.

As we have difficulty in arranging joint account you could send across your donation through cheque, address to KSHETRIMAYUM ONIL. Address to A-1/125 Safdarjang Enclave, New Delhi - 110 029. Please pass on the message.

Warm Regards
Onil
Coordinator
+919818781767
onilrights@gmail.com

--

RTI AFSPA and Vohra committee report: Nodal Ministry has not Issued any Guidelines for implementing J&K AFSPA

Several districts in the State of Jammu and Kashmir have been notified under the Armed Forces (Jammu and Kashmir) Special Powers Act (J&K AFSPA) enacted in 1990. The text of this law is available at:
http://mha.nic.in/pdfs/Armed%20forces%20_J&K_%20Spl.%20powers%20act,%201990.pdf
****

** **

*Nodal Ministry has not Issued any Guidelines for implementing J&K AFSPA*

The J&K AFSPA permits even a non-commissioned officer of the armed forces to shoot to kill any person in order to maintain public order in an area declared as a “disturbed area” in the State. Law enforcement officers can even arrest a person using whatever force may be necessary if there is a suspicion that such person is likely to commit a cognizable offence (any offence where the accused may be arrested without warrant from a magistrate). One would ordinarily expect such a harsh law to be implemented on the basis of strict guidelines to prevent abuse of these powers. However the J&K AFSPA does not contain any provision that empowers either the Central Government or the J&K Government to make Rules for its implementation. Perhaps guidelines for use of force under J&K AFSPA may exist in other instruments. So we decided to submit a formal information request under the Right to Information Act, 2005.****

** **

We sought the following information from the Ministry of Home Affairs, Ministry of Defence and the Indian Army in separate applications:****

**1) **“A list of exact dates on which any rule, regulation, instruction, guideline, circular, office memorandum, standing order, standard operating procedure, gazette notification or any other written communication was issued by your Ministry in relation to the implementation of *The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990*. Please provide* *the subject matter of each such communication along with the designation of the signatory officer; and****

**2) **A clear photocopy of all rules, regulations, instructions, guidelines, circulars, office memoranda, standing order, standard operating procedure, gazette notification or any other written communication issued by your Ministry in relation to the implementation of *The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990*.****

** **
*The Public Information Officer for the Home Ministry stated that no guidelines had been issued for the implementation of J&K AFSPA* (copy of reply is in the second attachment). So we filed a first appeal with the designated appellate authority. *The First Appellate Authority has reiterated that no rules, regulations, guidelines or instructions have been issued by the Home Ministry for the implementation of J&K AFSPA* (copy of the order is in the third attachment). Readers may remember that under the Allocation of Business Rules, 1961, the Union Home Ministry is the nodal agency for the implementation of the J&K AFSPA under the Central Government (see under Dept. of J&K Acts : http://mha.nic.in/uniquepage.asp?Id_Pk=290) Yet it has not issued any guidelines or instructions for the implementation of this law till date.****

** **

*The Ministry of Defence did not respond to our RTI application. So a first appeal has been filed with them. The Indian Army sent us a reference number for our RTI application but no further reply was received. So we have filed a first appeal with the Indian Army citing this reference number. Decisions are due in both cases soon*.****

** **

*Vohra Committee Report on criminal-politician-bureaucrat Nexus Denied under the RTI Act*

We also sought an additional document from the Home Ministry in the same application:****

**3) **“A clear photocopy of the complete report along with Annexures, if any, submitted to the Government of India by the Committee established in July 1993 under the Chairmanship of the then Home Secretary, Shri N N Vohra.”****

The PIO transferred the application to another division but there was no reply. The same First Appellate Authority has rejected our request by mechanically citing Section 8(1)(a) without giving any reasoning whatsoever.
****

This important Report on the criminal-politician-bureaucratic nexus was discussed and debated widely in 1995 in the aftermath of the Naina Sahni murder case, infamously known as the Tandoor murder case. The main report was tabled in Parliament in August 1995. However this report is not accessible in the public domain either on the website of the Home Ministry or of Parliament. This is what prompted us to file a formal request for a copy of the report. *So the First Appellate Authority has essentially denied access to a report which was tabled in Parliament.*****

Readers will remember that Shri Dinesh Trivedi, MP who recently stepped down as Minister for Railways had participated in the Rajya Sabha debate on the Vohra committee report in 1995. He is said to have made a representation to the Central Government seeking disclosure of various reports from the intelligence agencies that formed the basis of the Vohra Committee report. As the Government did not comply with his request, he filed a public interest litigation (PIL) suit in the Supreme Court of India along with PILSARC and Consumer Education and Research Centre demanding publication of the background papers. In its 1997 judgement the Supreme Court reiterated the value of people’s right to know as a fundamental right implied under Article 19(1)(a) of the Constitution. However the Court on balance refused to order disclosure of the background reports as that would be harmful to the public interest ( copy of the judgement is in the fourth attachment).****

*So while the Apex Court upheld the confidentiality of the background reports in a pre-RTI era, the Home Ministry believes that even the main report of the Vohra committee tabled in Parliament cannot be disclosed under the RTI Act*. *It looks like the background reports remain sensitive even after 19 years and the main report has become more sensitive than earlier*. Under Section 8(3) of the RTI Act seven of the 10 exemptions under the RTI Act become inoperational for information that is 20 years old or more. However when a document is covered by the exemptions under Section 8(1)(a)- mostly relating to national security- it continues to remain exempt from disclosure unless the Information Commission orders disclosure in public interest. ****

*So now we will take the matter to the Central Information Commission.**

Incidentally Shri N N Vohra is now the Governor of Jammu and Kashmir.*****

** **

*In order to access our previous email alerts on RTI and related issues please click on: http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=65&Itemid=84
You will find the links at the top of this web page.

Thanks****

Sincerely,****

Venkatesh Nayak****
*Programme Coordinator*
*Access to Information Programme*
*Commonwealth Human Rights Initiative*
*B-117, First Floor, Sarvodaya Enclave*
*New Delhi- 110 017*

*Tel: +91-11-43180215/ 43180201*
*Fax: +91-26864688*
*Skype: venkatesh.nayak@skype.com*
*Alternate Email: nayak.venkatesh@gmail.com*
*Website: www.humanrightsinitiative.org*

Solidarity actions are planned all over India on the 6th anniversary of Sharmila's hunger strike

Solidarity Actions are planned All Over the Country on November 2nd in Solidarity to Irom Sharmila Channu's HungerStrike to repeal AFSPA with the slogan "Support Sharmila, Repeal AFSPA, Restore Right to Life in Manipur" . November 2nd 2006 marks as the 6th Anniversary Of Sharmila's fast-unto-death for the repeal repressive Armed Forces (Special Powers) Act. For six years, she has been imprisoned and force-fed by the State for her 'crime'.

Solidarity Actions are Happening in Thiruvanathapuram , Thrissur, bangalore, Mumbai , Patna, Delhi & culcutta & Manipur.

The Act, AFSPA 1958, gives draconian powers to the security forces and has repeatedly been used with brazen brutality in the Northeast states in India. The implementation of this law has led to brutal rape, arbitrary detentions, “disappearances”, killings, and loot. This law is being actively used by security forces to terrorize and subordinate local communities in the name of counter-insurgency.

The campaign call for Letter Issued by 32 Organisations all Over India Says "AFSPA has challenged not only the democratic norms of Manipur, but also of the entire freedom loving people in India for allowing such blatant repression to take place."

In Thiruvanathapuram the Protest is Initiated By Theeradesa mahilavedi (Women wing of Kerala independent Fishworkers Union). A march & sathyagraha (Sit-in) of 50 fisherwomen is planned in Trivandrum. " We are looking at the struggle of Manipuri people as an issue of Women all over the World. We understand sharmils's struggle as the struggle for Manipury Women's right to live with Dignity, for with we too stand for" Said Magline Peter of Theeradesa Mahila Vedi

In bangalore a Solidarity Protest At Gandhi Staue is Planned by a Group of Organisations and ndividuals in The name of Forum for Protection of Humanrights in Manipur. In Thrissur a Dharna & Cultural event is planned in front of Corporation Office Thrissur. In Thrissur a Manipur solidarity Forum is formed by The Cultural & Human rights Groups in Thrissur. Similar kind of events are Happening all Over The Country.

The Groups called For The Action on Nov 2nd Demands Immediate Repeal Of the Draconian Act AFSPA & Restore of Right to Life in manipur

Reports & analysis & Critiques on AFSPA is available at http://manipurfreedom.org/background

Poster Set For Campaign is available at http://manipurfreedom.org/pictures.zip

Contacts:

K.P Sasi +91 9945282056
Magline Peter +91 9447154491
Anivar Aravind +91 9846885539
Nobo +91 9862032625
Email: campaign@manipurfreedom.org

Support Petition: Repeal AFSPA!

To endorse this statement, send an email with your name and details to: ajoexavier@gmail.com

A Statement of Two National Seminars on the Armed Forces (Special Powers) Act, 1958

The Indian Parliament enacted the Armed Forces (Special Powers) Act in 1958 as an interim measure with the hope of suppressing the Naga Nationalist Struggle, the only such movement in the North East at that time. It was gradually extended to other North Eastern States and then in 1990 to Jammu and Kashmir.

The Armed Forces (Special Powers) Act is to-date the single most direct instrument violating the democratic rights of the people of the North East and of Jammu and Kashmir. The Act is implemented when an area is declared ‘disturbed’ by either the Central or the State Government.

The Act is under much debate today on several grounds, not only in Jammu and Kashmir and the North East, but also in the rest of India. One, it enables the security forces to “fire upon or otherwise use force even to the causing of death”. Two, according to Section 6, no criminal prosecution can be initiated against the security personnel who take action under this Act. Three, till now, but for a few exceptional cases of public fury or when the security forces were caught in the act by the public, no paramilitary officer or soldier has been prosecuted for destruction of property or murder or rape. Finally, five official commissions and committees have recommended either repeal or drastic review of the Act.

We the participants of these two seminars and other individuals consider this and other such acts a gross abuse of the Constitution. AFSPA has led to atrocities in the North East and Kashmir. Currently, a case concerning 1,528 deaths in alleged fake-encounters in Manipur alone is before the Supreme Court. Over and above these, one can mention the Thangjam Manorama Devi case in Manipur in July 2004. She was arrested by the security forces and was allegedly raped and killed. Amongst other cases is the attempted molestation near Kokrajhar in Assam, on 23rd December, 2005, of some university students who entered by mistake a compartment carrying Haryana Armed Police personnel. Four students died when the police opened fire on other students who blocked the train after hearing the screams of the students. No action has been taken till today against the perpetrators of these and other crimes. Also many other cases of massacres, mass rapes and torture like the destruction of Oinam village in Manipur in 1987, the killing of some innocent persons in the Pathribal case, the Sophian sexual violence case and the discovery of mass graves in different places in Jammu and Kashmir raise similar concerns.

Many commissions and committees, such as the Justice Jeevan Reddy Committee (2005), the Second Administrative Reforms Commission (2007), the Prime Minister’s Working Group on Confidence Building Measures in Jammu and Kashmir (2007) headed by Shri Hamid Ansari, the Interlocutors’ Report on Jammu and Kashmir (2012) and Justice J S Verma Committee (2013) have recommended that the Act be repealed or amended. Even the Planning Commission in the 12th Five-year Plan document passed by the National Development Council has for the first time ever asked for not only a gendered review of the Act, but also of gendered violence in the ‘Disturbed Areas’, as women and children are the most vulnerable in conflict regions. These voices should be heard because AFSPA is symptomatic of a larger militarization. The negative impacts on human development such as health and education have been extensive so also the scars left by these acts and the negative effects on the psyche of people who live in a situation of low intensity warfare and are treated as unequal citizens

At the international level, India has been repeatedly flagged on the issue of AFSPA in the Human Rights bodies of the UN, including the Universal Periodic Review of the Council, in almost all the major human rights treaty bodies and Special Procedures. It is clear that the Act has not served its purpose. But the Government of India has not even amended the Act for more than 50 years. A reason given by Finance Minister P. Chidambaram in a speech in New Delhi on February 6, 2013 is that there is no consensus because both the retired and present army generals oppose even the idea of making it more humane.

Why does the army oppose the repeal or even amendment of this inhuman Act? Is it because they want to protect their personnel who abuse power? Surely, as the Verma Committee (2013) has remarked, the armed forces cannot expect impunity for actions such as rape, which are not in the line of duty. Can a democratic country tolerate such an anti-democratic Act? The situation in Jammu & Kashmir and the North East is complex and can be resolved only through a political process and dialogue. Those decisions cannot be taken by the army. The elected representatives have to take decisions that should include Confidence Building Measures (CBM). That is impossible when such abuses under a draconian Act continue. The rights of the people must be protected by judicial and official / administrative processes such as grievance cells that protect the right to information of relatives of detainees.

The security situation in most areas where the Act is in place has improved enormously in the last decade because of ongoing peace processes and civil society initiatives. So the stated purpose of the Act no longer exists. The security forces cannot presume that they have an unfettered right to continue using the Act in perpetuity. There has to be sunset date in these legislative measures. Continuing such Acts indefinitely would be undemocratic and violative of human rights. As a result of such violations a trust deficit has developed between the people of the North East and Jammu and Kashmir on the one hand and the rest of India on the other.

In addition, major state legislative measures exist in Jammu and Kashmir and Nagaland such as the Jammu and Kashmir Public Security Act and the Nagaland Security Regulations Act which are no less arbitrary. They provide the police with impunity. Such laws no longer have a place in our democratic polity, especially after the extensive peace processes in these states. We, therefore, call on States like Jammu and Kashmir and Nagaland that have been demanding the repeal of AFSPA to take a lead in changing the undemocratic tenor of the legal regime. We call upon all political parties and political candidates, including the major regional parties, to take a position on the repeal of AFSPA in the run-up to the general elections.

It is critical that a civil society alliance takes up a robust programme of advocacy and dissemination especially through the media. As a step towards it, we the 90 participants of the Seminar on AFSPA held at Indian Social Institute, New Delhi on 6th April 2013, and sponsored by ICSSR (NCR) and 160 persons present of the seminar held at Indian Social Institute, Bangalore on 13th April, 2013 demand the immediate repeal of AFSPA. We also demand that, that the armed forces be brought under the purview of the civilian government with no impunity.

Dr Joseph Xavier Dr George Mutholil
Executive Director Director
Indian Social Institute, New Delhi Indian Social Institute, Bangalore

With Partner organisations and individuals
Human Rights Alert, Imphal,
The Other Media, Centre for Policy Analysis, New Delhi,
North Eastern Social Research Centre, Guwahati,
National Council of Churches in India, Nagpur

Bangalore:
Alternative Law Forum, Mithra Foundation, NAPM, PUCL Karnataka, SCM, St Joseph’s College, Openspace, Vistaar, NAPM-Karnataka, Women’s Department, UTC.

Individuals
Ms Patricia Mukhim, Shillong, Mr Bashir Manzar, Srinagar, Ms Nandita Haksar, Goa, Mr Sanjoy Hazarika, New Delhi, Prof. Anuradha Chenoy, New Delhi, Prof. Ritu Dewan, Mumbai.