ARMED FORCES SPECIAL POWERS ACT- NEED FOR RETHINKING
The release of Irom Sharmila from custody and her subsequent arrest have again raised the issue whether the Armed Forces Special Powers Act of 1958 should continue to remain in areas like Manipur. The Chief Minister of J & K has been demanding for some time that his state, at least some parts of that province, can do without this special legislation. In Manipur, Irom Sharmila has been on hunger strike for the last fourteen years, asking for the repeal of this controversial and a definitely draconian law.
Neither the UPA nor the present government has paid any heed to these demands. What is so special about this law and why are all governments so reluctant to do away with this piece of legislation? The simple answer is that this law provides the authorities a short cut to assume certain repressive powers that are not normally available to them in a democratic society.
This law gives special powers to the commissioned as well as non commissioned officers of the armed forces to deal with law and order situation in an area, which has been notified by the central or state government as a “disturbed area.” Special powers include using force even to causing death; arresting people without warrant; destroying shelters, camps, structures, arms dumps etc and entering and searching premises without warrant. Neither this nor any other law defines what constitutes disturbed or dangerous area. It is thus left to the discretion of the concerned authorities to decide that the law and order situation in an area in a state has become disturbed or dangerous enough not only to call for the deployment of the army but even to confer some special authoritarian powers on them.
The Act was originally intended to be a short term measure, but it has remained in force for decades in states like Manipur. Despite tremendous public agitation in that state against this law, the central government has declined to repeal it, even though there is considerable evidence that it has led to gross violations of human rights in that area. A number of committees appointed from time to time, like Jeevan Reddy committee, Santosh Hegde Committee etc have clearly indicted the armed forces for gross violations of human rights of citizens in Manipur and recommended the repeal of this exceedingly harsh law.
An argument often given by the government, particularly the army, in support of retaining this law is that the Supreme Court upheld its constitutional validity in its judgement delivered in 1998 in Naga Peoples’ Movement of Human Rights vs. the Union of India case. A law may be constitutionally valid, but that is no guarantee against its misuse. Pathribal fake encounter case of March 2000 and the alleged rape and murder of Thangjam Manorama Devi, a 34-year-old Manipuri woman in 2004 by armed forces personnel, are only two of the many examples of such misuse.
Another argument that the army often makes is that the majority of complaints of human rights violations filed against them are false. The problem with this type of argument is that most complaints are investigated and tried by the army itself. The army has shown considerable reluctance to hand over such cases to the civil authorities or courts. It is only at the intervention
of higher courts that the army has been forced to hand over some cases to outside investigating agencies like the CBI.
The Act provides protection to armed forces’ personnel working under it, as no prosecution can be launched against them without sanction from the central government. The civil rights activists have often complained that it provides impunity to armed forces personnel. The argument is not very convincing as even if this provision is removed from the Act, members of the armed forces will continue to be covered by Section 197 of the Criminal Procedure Code that debars the courts from taking any cognizance of any offence alleged to have been committed by them without sanction from the central government.
The state police forces, particularly their armed components, occasionally complain that they face the initial burnt of law and order situation in disturbed areas or even insurgency, without getting the powers and protection that AFSPA provides to the central armed forces in such situations. This happens even in areas where armed forces of the union work in conjunction with the state law and order authorities. The state police forces feel that they are definitely at a disadvantage in such situations.
The central government has not only shown lack of will or courage to dispense with this Act, but even blocked full debate on this subject of enormous public concern by suppressing Justice Reddy’s report. Last year, the then union finance minister P Chidambaram was brazen enough to express the helplessness of his government to revoke the law because the army was not willing to do so. This is a country where the army is supposed to work under the civilian control and decisions like imposing or revoking a particular law have to be taken by the government and not by the army. Mr. Chidambaram should have found a less phony argument to explain the central government’s reluctance to withdraw the law.
The army has been deployed to deal with serious law and order situations in this country on numerous occasions. In most instances, it has successfully dealt with such problems without having the powers or protection of AFSPA. It is therefore time the government showed willingness to assess objectively the need to retain this law. It may consider keeping this law in operation in states affected by insurgency or terrorism, particularly when the trouble is emanating from across the border. However, it may revoke the law in areas that are comparatively peaceful. If the government can think of controlling Maoist violence in some areas of the country without invoking AFSPA, why can’t it do the same in areas like Manipur?
This article with some minor changes was published in the Indian Express dated August 26, 2014 under the heading " Rethinking Impunity"
