In India, there are many laws that make no sense. For example, a woman having an extra marital affair is not a criminal but the man – he will be jailed. Another such law is AFSPA, the Armed Forces Special Powers Act, of 1942. Yes, the law came into existence in 1942 under the then British government in India led by Lord Linlithgow. The reason why this law was introduced was Mahatma Gandhi. When Mahatma Gandhi led the Quit India movement, Linlithgow faced protests all over the country. To suppress the protests, the AFSPA was brought. Later on, after Indian independence, the law was restructured and added in the Indian Constitution.
The political successor of Mahatma Gandhi, Pandit Jawaharlal Nehru, was the reason why AFSPA was legally approved by the Indian Constitution. When Nagaland started to demand a separate nation, Jawaharlal Nehru did not feel very pleased about it. That is when AFSPA set foot in independent India. Thousands of military men were sent inside Nagaland to “restore peace”. To prevent any judicial problems the opposition parties may create, the AFSPA was passed in Parliament in 1961.
Unfortunately, AFSPA is still in India. This act will remain in effect as long as a region is deemed “disturbed”. At present, these states are under AFSPA: Assam, Nagaland, Arunachal Pradesh (a few areas), Manipur (but not Imphal),
Meghalaya (a few areas), Jammu and Kashmir.
The Armed Forces Special Powers Act as the name itself says is a law that gives special powers to the Armed Forces – both the army and paramilitary. AFSPA gives them more powers in regions that have been declared as “disturbed”. A disturbed area is usually one where public violence or separatism is a risk. For example, during the Khalistan movement in Punjab and especially after Prime Minister Indra Gandhi was shot dead, Punjab was put under AFSPA. In 2012, AFSPA was lifted from Punjab.
The patriotism and the discipline of the Indian army are far from question. They are the people protecting us against threats that come from both outside the country and inside the country. Some civilians may be fooled by the propaganda of anti-national elements like terrorist groups and may end up helping such groups. If the army has to follow protocol and get court’s approval before arresting anyone suspicious, India as a country will soon be history.
However, every coin has two sides. If a soldier in a region under AFSPA commits a human rights violation, where will the victim go and complain? Do we really expect a civilian to file a complaint against a man who is authorised by the government to use a gun? Even if he has the guts to lodge a complaint, AFSPA will make it difficult for the victim to get justice.
There are also some incidents in the past which raise questions over relevance of AFSPA.
Manipur: In 2000 at Malom in Manipur, the Assam Rifles fired upon 10 persons at a bus stand and all of them were killed. Irom Sharmila started her fast unto death demanding repeal of AFSPA after that incident.
Pathribal: In 2000, at Pathribal, 5 civilians were picked up by Rashtriya Rifles and killed on the false accusation that they were foreign militants who were responsible for the massacre of Sikhs at Chattisinghpora. The CBI investigated this case and it found that the army officers were guilty of killing civilians. However, no action was taken against the army officers and the case was closed by the CBI.
Thangjam Manorama: In 2004 at Imphal, the Assam Rifles went to the house of Manorama Devi at night, tortured her in front of her brother and mother, then took her away. Her dead body was found the next morning with several bullet injuries in her private parts.
2009 Shopian rape and murder case: Two women went missing from their way back home in Shopian. Their bodies were found the next morning in a stream. The forensic report revealed that they were gangraped and killed. People accused army soldiers who were camping nearby.
Mass graves in north Kashmir: Mass graves containing 2,900 unmarked bodies were found in 2008 at Baramulla, Bandipora and other districts. It was believed that these persons were civilians killed and buried by security agencies. No one was held accountable.
Machil ‘fake’ encounter: In 2010, 3 civilians were killed in Baramulla and framed as foreign militants. After prolonged protests, an investigation was carried out and army personnel were found guilty.
1,528 cases of extra judicial killings: A writ petition filed in SC stated that between 1979 and 2012, 1,528 cases of extra judicial killings happened in the northeast. The SC picked up 6 random cases from the list and formed a high-level commission to investigate these 6 cases. The commission submitted its report in which all 6 cases were found to be fake encounters.
The AFSPA is an act written many years ago. The time has come for the Indian government to amend the act keeping in view the rights and dignity of people. Though the Indian Army needs a few special powers to carry out important operations in a few areas, it will be better if there are some checks and scrutiny allowed. Though AFSPA was responsible for the successful defence against the Khalistan movement and many other illegal activities, the time has come to review the act. We cannot pass judgement just by sitting in our room and relaxing on the sofa; we have to think from the point of view of a soldier who is thousands of kilometres away from his/her family. But we should also think from the point of view of an innocent child who lost his/her dad who went to buy some snacks for him but was killed just because he was living in a “disturbed” area. As the saying goes, “Thousands of criminals may escape, but not one single innocent should be punished”.
The writer is a student at Department of Politics and Governance, Central University of Kashmir. [email protected]