By Syed Mohammad Aamir Ali,
“People crushed by laws, have no hopes but from power. If the laws are their enemies, they will be enemies to the law; and those who have much to hope and nothing to lose will always be dangerous,” Edmund Burke
In Post-9/11 scenario the countries in the first world such as Britain and America, which contributed significantly in the modern definition of liberal democracy are busy waging wars and promulgating draconian laws in the name of protecting democracy. It is heartening to see that in a relatively backward country such as India, not only the human rights and civil liberties movement but even mainstream political parties are resisting and creating public opinion against such acts.
The significance of the efforts being made for the repeal of POTA in strengthening and broadening democracy in the country can never is overstated. Yet it is time to attract the indulgence of these forces against similar draconian laws and acts that are in force in the relatively marginal regions of the country.
The Armed Forces (Special Power) Act of 1958 (AFSPA) is one of the most draconian legislations used by the Indian rulers to enslave and oppress peoples’ under the garb of fighting separatism. Under this Act, security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill based on mere suspicion that it is necessary to do so in order to “maintain the public order. It has been going on for decades in our North East states & Kashmir!
The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. This legislation is sought to be justified by the Government of India, on the plea that it is required to stop the North East states from seceding from Indian Union. However, it has not only led to de facto implementation of emergency in the areas of its implementation but also, the suspension of even the fundamental rights of common citizens, including their Right to life. Draconian laws are antithetical to modern democracy since they overturn the fundamental tenets of modern jurisprudence on which democracy rests viz. a person is presumed to be innocent till proven guilty the genre of draconian laws thereby makes it difficult for persons booked under it to redress their grievances and get relief, such as bail. It grants extra-ordinary power to the investigating agencies (police etc.) to elicit confession etc. Thus, the Act empowers the investigating agencies to easily frame a person whom they suspect to be guilty.
Provisions of the Armed Force Special Power Act are far more severe. The provisions of the Act provide special powers to the Governor, whereby they can on their own discretion, by notification in the Official Gazette, the whole part or part of the state or union territory to be a disturbed area. Bypassing duly elected and representative political authority is tantamount to de facto imposition of emergency. Unlike, other draconian laws, the Armed Force Special Power Act does not stop at providing special powers to the investigating agency to elicit confession and to conduct search and arrest operations. It in fact provides the investigating agency with absolute powers whereby, even a havaldar “if he is of the opinion that it is necessary” to fire or otherwise use force, even to causing death, can make use of the provisions the Act, thereby, harming the democratic fabric of the country.
More disturbingly, even while it provides the Armed Forces with such absolute powers, it also provides them with immunity from any legal accountability. Traditionally, the Armed Forces Special Powers Act (AFSPA) has been impugned act and has been at the heart of opposition of people’s movement in areas of armed conflict. Section 6 of the AFSPA provides immunity to Armed Forces for their acts done in disturbed areas by requiring a compulsory sanction from the Central Government before instituting any legal proceeding. If we trace the source impunity we may find and interestingly so, that legal impunity by way of AFSPA is only one form of immunity enjoyed by the Armed Forces. Section 70, 125 and 126, of the Army Act, and corresponding Sections of BSF Act, CRPF Act, etc. also provide legal immunity to Armed Forces.
One cannot forget the image of women protesting naked in front of the Assam Rifles headquarters in Imphal in Manipur holding banner titled: “Indian Army Rape us”. The protest was in response to an incident that took place on the night of 10-11 July, 2004 when Thangjam Manorma Devi was arrested by soldiers of Assam Rifles for interrogation. The next morning her dead body was found in mutilated condition. She had been sexually assaulted, tortured in custody, and ultimately killed. Today, even after 10 years of the incident, we have witnessed no prosecution in this regard. The contents of the report of the commission of inquiry instituted by the state government have not been made public as the Army had gone in appeal against the State of Manipur questioning its powers to order such an inquiry.
Since 1947, not even a single year has passed when Indian government was not involved in, either an overt or covert armed conflict, with its very own people. Many such wars are being fought for their right to self-determination in the north-eastern states, in the state of Jammu & Kashmir, and other Armed Conflict Areas. Countless cases of rights violations perpetrated by the Armed Forces, who subsequently enjoy immunity from prosecution, are heard from these areas. One such prominent example is of Manorma Devi as mentioned above. There are also several individual and equally heroic oppositions to the act. The brave but extremely tragic story of Irom Chanu Sharmila needs to be mentioned – a young girl who instead of falling in love as most people at that age do, is sitting on a hunger strike for the last several months demanding repeal of the Armed Forces Special Power Acts.
On one hand, the Government of India refuses to recognize these areas as Armed Conflict Areas as defined by International Humanitarian Law (thereby denying the rights that civilians are entitled to in these areas). And on the other hand, it continues to deploy its forces with unimpeachable legal immunity to suppress people’s struggles. Hence, people are at the losing end in all ways denial of internationally acknowledged rights, gross violation of basic human rights, and continuous denial of justice. Therefore, we all should appeal to the sanity of the Indian policy makers and Indian people to repeal this draconian Act.
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(Author is a law student at the Murshidabad Centre of Aligarh Muslim University.)