Dipankar Choudhury
Department of Mathematics
Bhawanipur Anchalik College, Bhawanipur
“The issue of human rights is one of the most fundamental human issues and also one of the most sensitive and controversial”- Ali Khamenei
Abstract: North East India possesses incomparable cultural wealth and natural beauty but has suffered badly due to insurgency and political turmoil. As the NE states, have remained cut off from the mainland for years, human rights violations in these areas largely go unnoticed and ignored. Armed Forces (Special Powers) Acts is collective name of several acts passed by Indian parliament for providing special powers to the Indian Armed Forces and to provide army officers and jawans legal immunity for their actions in disturbed areas. The Army maintains that it needs AFSPA’s protection; allegations of misuse of power have surfaced frequently and bred resentment against the state and its armed forces in Manipur.
In this paper we are going to discuss the necessity of AFSPA in Manipur or it is a black cave on human rights in India.
Key Words: Insurgency, political, violations, AFSPA, Army, Human Rights.
Introduction: The Armed Forces (Special Powers) Acts (AFSPA) is one of the oldest and the most controversial parliamentary regulations of the Indian government. The acts have been enforced in 'disturbed areas' whenever a large scale civil disrupts has taken place that can threaten the national security. Although it's a precautionary measure from the part of the Parliament, the Armed Forces (Special Powers) Acts have been criticized by academicians, activists and politicians since long. The Armed Forces (Special Powers) Acts allows the Indian Armed Forces to observe a strict vigil in what the acts term as 'disturbed areas'. The Armed Forces (Special Powers) Acts was put in action by the British Empire on August 15 in the year 1942 to suppress the Quit India Movement. Till date, the Government of India is using this act to mobilize the Indian Armed Forces to suppress any threatening uprising in 'disturbed areas'.
Importance for the study: Every country dealing with insurgency or with terrorism has its own laws and legislations to tackle the menace. Likewise, India has laws to fight insurgency and terrorism, and has given legal powers to armed forces operating in ‘disturbed’ areas under AFSPA 1958.
Objective for the Study: The main objective for study is to find the necessity of AFSPA in Manipur or it is a misused power for army and military to violate the fundamental rights of Manipuri people.
Methodology:
The data use in preparing the topic is the secondary data. The data are collected from various documents, periodicals, books, magazine and internet. These data are collected and analyzed in systematic order.
What can an Indian Armed Forces officer do under AFSPA?
Under AFSPA, an Indian Armed Forces officer can do the following:
· After giving warning, an officer can fire upon or use other kinds of force, even if it causes death, against the agitator who is acting against the law and order in the 'disturbed area', for the maintenance of public order
· Seize any unauthorized arms storage, hide-outs, shelter or training camp which is being used by the militants
· Arrest anyone who has committed cognizable offences or is suspected of having committed such a crime, without a warrant
· Search any place to make such arrests, or to recover any suspect, or confiscate unauthorized arms and ammunition
· Stop and search any vehicle or vessel, suspected to be carrying such a person or weapons
· The arresting officer must present the suspect to the nearest police station with least possible delay, with a report of the circumstances that resulted in the arrest
· No Army officer can be held against any arrest under the AFSPA. No prosecution or any other legal proceeding can be made against the arrest or seize. Even the state government cannot question his action.
Feeling among People of Manipur
The 1972 amendments to AFSPA extended the power to declare an area disturbed to the Central Government whereas in the 1958 version of AFSPA, only the state Governor had the power. A section of the Manipuri’s feels that power should remain only with the state government. They also feel that the Section 3 of the AFSPA does not specify any time limit. The notification in Manipur issued in 1980 still continues even after 24 years, and thereby they feel that they have been deprived of the spirit of liberty, freedom and democracy for too long a period. The exercise by the armed forces of the unchecked powers to arrest, search, seize and even shoot to kill conferred under Section 4 of the Act has resulted in large-scale violation of the fundamental rights of the citizens under Articles 14,19,21,22 and 25 of the Constitution. The power under the Section 4(a) of AFSP Act 3 has hurt the citizens of Manipur the most as they feel that the Act confers the armed forces with broadly defined powers to shoot to kill and that this is a law, which fosters a climate in which the agents of law enforcement are able to use excessive force with impunity. It is alleged that security forces have destroyed homes and other structures presuming them to be used by insurgents under provisions of Section 4(b) of AFSPA. Manipuri’s also feel that arrests without warrants is a serious encroachment on the right to liberty of a person. The power of search and seizure under Section 4(d) has been extensively used by the armed forces in cordon and search operations leading to widespread violation of fundamental rights of citizens and the forces have kept arrested persons (Section 5) for several days in their custody. Due to protection under Section 6 of the Act 8 some security force personnel even violated the human rights of people and left the victims without any effective remedy. The failure to identify those responsible for human rights violations and to bring them to justice has meant that some members of the security force continue to believe that they are above law and can violate human rights with impunity.
Why Are Special Powers Essential:
Every country dealing with insurgency or with terrorism has its own laws and legislations to tackle the menace. The power to declare an area ‘disturbed’ lies with the Governor or the Central Government, who have to form an opinion that the use of armed forces in the aid of civil power is essential and then notify it as ‘disturbed area’. The declaration of an area as a ‘disturbed area’ is for a limited duration and review of the declaration before the expiry of six months has to be undertaken by the executive. A non-commissioned officer has also been conferred with the powers under the Act because it is he who is the commander of a section and leads it for any operation. While exercising powers under Section 4(a), the armed forces should use minimum force required for effective action. This force is to be used against armed militants. While executing action under powers conferred under Section 4(b) of the Act during operations against militants, there are chances that a few houses may get damaged where the militants take shelter. Section 4(d) is essential, so as to search out the militants or any other equipment hidden in villages or in residential areas. Innocents are likely to be harassed during cordon and search operations. Though, the security force personnel are protected under Section 6 of the Act, but if they violate the law they are severely punished under the respective laws of Army and the Armed Forces. The powers conferred under the AFSPA have been upheld by the Supreme Court in 1998. The people influenced by the militants are concerned about human rights violations by security forces, but what about the violations committed by the militants? As per a police report, during 2000-2004, militants killed more than 450 civilians and kidnapped several senior government officials. Initially, there were only three militant groups; today, there are at least 26 militant groups operating in the small state. Most of the groups operate under the influence of external directors. There is also the menace of drug trafficking in the state. Overall, the situation in Manipur is alarming and to counter this, the armed forces operating in the state require special powers to support them.
General Effect, if AFSPA is repealed in Manipur:
It will cause a chain reaction in all states where the Act has been enforced.
No armed force would like to carry out any operation in the insurgent affected areas without proper legal protection for its personnel.
It will demoralize the armed forces and all initiative will be lost.
Whenever any offensive action is taken by armed forces, the militant groups will instigate the people/local authorities to initiate legal cases against the armed forces. Justice may be biased under the influence of militants.
The militants will get an upper hand and may be difficult to contain.
Incidents of extortion from the civilian population/government organizations will go unchecked.
Civil administration will be overrun by the militants and there will be chaos all around.
The Supreme Court has come out strongly in favor of the human rights of Indian citizens, including those living in the “disturbed” areas. The court’s direction on a PIL petition on the 1,528 alleged killings by security forces and the police in Manipur shows that it was not satisfied with the submissions made in defense by the government and the Army. After a long time the controversial Armed Forces Special Powers Act (AFSPA) has come under a critical review. The court has asserted that there is no absolute immunity under the Act.
While the Army maintains that it needs AFSPA’s protection, allegations of misuse of power have surfaced frequently and bred resentment against the state and its armed forces in Manipur and Jammu and Kashmir. Ideally, the Army should not deal with terrorism. Punjab was able to contain militancy without Army help. Whenever the Army is deployed, it has to be ensured that excessive or retaliatory force is not allowed to be used. A prolonged Army deployment with unlimited powers under AFSPA can prove counter-productive as has happened in Manipur. For many years now Manipur has lived with internal disturbances, fake encounters and protests against AFSPA. The Centre and the state government are to blame for the excessive reliance on the Army to contain insurgency.
The Supreme Court has called for an inquiry by an independent agency into all Manipur encounters that have happened in the last two decades. This will hopefully make the powers-that-be realise that no matter how difficult and challenging a situation, violations of the rule of law cannot be overlooked or sanctioned. The Army, at best, can supplement the civil administration’s efforts to control a volatile situation in the short term. If allowed to carry on beyond a point for whatever reason — political convenience or inadequacies of the state/Central forces — the arrangement is bound to backfire. When AFSPA is allowed to stay for six long decades, instances of abuse of power are bound to crop up. As and when excesses happen, these must be investigated thoroughly and swiftly so that the guilty don’t go unpunished.
Remedial Measures:
The general administration in Manipur is not able to give effective justice to the people, with the result that it has to depend on the security forces for its normal functioning. Therefore, the forces operating in the state have to be honest, law abiding and must respect the rights of the people of the state. The commanders at all levels should follow the principle of “use of minimum force” required for effective action. They should brief their men to respect all womenfolk. In case any woman is to be arrested, then it should be done with the help of a lady police/ force personnel, who should also remain present during interrogation. While carrying out search operations, the force personnel should associate a local respected person and also the owner of the house, and after the search, the owner should be permitted to search the search party is he so desires. One must challenge before opening fire and to ensure that one fires only in self-defense. A grievance cell should be opened at Sector Headquarters/ Battalion Headquarters so that the civilians can lodge complaints against the force personnel if they so desire and the commander should take necessary action as deemed fit. Police representatives must be associated with every operation conducted by the security forces.
The training should be of high level so that the armed force may be able to handle all types of situations with professional competence. It is high time that the state police is trained to take over operational responsibilities from the Army and the BSF. The normal operations may be conducted by the state armed police and only major and pinpointed operations be left for the armed forces. Junior level personnel should be properly briefed to not to over react to any sensitive situation.
It is also important to evolve a mechanism to deal/ tackle with over ground support structures that are generally well-connected with local politicians and are regarded in the society. Everything depends on intelligence and hence we must sharpen the skills of the armed forces for collection of hard intelligence. Senior commanders should handle civil society sensibly so as to extract sympathy and maximum information from them. This will also help in changing the perception of the local population in the larger interest of the Government/ Nation.
Conclusion:
There can be no two options that insurgency has to be put down with a firm hand within the provisions of law and not to be dictated by the militants. You cannot tie both hands of the security forces and then ask them to fight armed militants. The militants will keep on exploiting the sentiments of the local people and they (militants) will try to reap benefits from such situations. Avoid any tendency to carry out blind operations against militants without specific intelligence/information. Indiscriminate arrests and harassment of people out of frustration for not being able to locate the real culprits should be avoided. Security forces should be very careful while operating in the Northeast and must not give any chance to the militants to exploit the situation. All good actions of the force get nullified with one wrong action. Any person, including the supervisory staff, found guilty of violating law should be severely dealt with. The law is not defective, but it is its implementation that has to be managed properly. The local people have to be convinced with proper planning and strategy.
Reference:
1) Armed Forces (Special Powers) Act, 1958
2) AFSPA in Manipur: Securing India's Northeast
3) Human Rights Violation :Exposing AFSPA
4) Wikipedia, Google.
5) A Place where Human Rights are violated - E-Pao.
6) The Tribune- Misuse of AFSPA (Jul 11, 2016)
7) Various Newspapers and Magazine articles related to the topic.
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