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 The AFSPA should be repealed as per report.The UPA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.
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.

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.
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.

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:

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.

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

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.
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


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..