The cause is AFSPA (The Armed Forces Special Powers Act)

The cause is AFSPA (The Armed Forces Special Powers Act)

Irom Chanu Sharmila has always made puzzling decisions, whether it is going on a hunger strike and steadfastly sticking to it for 16 whole years, or suddenly calling it off and deciding to contest elections. Most remarkable, however, is how she remained in solitary confinement all these years, foregoing the sense of taste, unquestionably a fundamental need which adds texture and meaning to life, and stayed sane. Sanity for her certainly does not mean what it means to others — conforming to practiced norms and standards.

India, in general, and Manipur, in particular, were caught unawares by her latest decision, but now as emotions settle, there is widespread agreement that the Iron Lady’s decision may be the most practical way forward, both for her and for the campaign.

So,in this background of news we should know about AFSA in details:

AFSPA explained: How does it work exactly?

The Armed Forces (Special Powers) Act was enacted in 1958 to bring under control what the government of India considered ‘disturbed’ areas. The Tripura government on Thursday decided to lift the controversial law which according to a Press Trust of India report “was in effect for the last 18 years to curb insurgency.”

The Act has often faced flak from human rights groups as it gave sweeping powers and immunity to the army in conflict-ridden areas.

As of now, according to the home ministry, six more states come under the ambit of this law under various conditions. Here is a simple explainer to make sense of it all:

Which other states are under AFSPA right now?

Assam, Nagaland, Manipur (except the Imphal municipal area), Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam), Meghalaya (confined to a 20-km belt bordering Assam) and Jammu and Kashmir.

Why is this required?

The government (either the state or centre) considers those areas to be ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”

How does one officially declare a region to be ‘disturbed’?

Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the centre has the authority to send in armed forces for civilian aid. It is still unclear whether the governor has to prompt the centre to send in the army or whether the centre on its own sends in troops.

Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.

What about the state government’s role?

The state governments, as in Tripura’s case, can suggest whether the Act is required to be enforced or not. But under Section (3) of the Act, their opinion can still be overruled by the governor or the centre.

Is the Act uniform in nature?

No. Originally, it came into being as an ordinance in 1958 and within months was repealed and passed as an Act. But, this was meant only for Assam and Manipur, where there was insurgency by Naga militants. But after the north-eastern states were reorganized in 1971, the creation of new states (some of them union territories originally) like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA Act to be amended, so that it could be applied to each of them. They may contain different sections as applicable to the situation in each state.

What about Jammu and Kashmir?

There were reports saying that it technically wasn’t a disturbed area after 1998.

This is a bit more complex. Jammu and Kashmir (as with a lot of things) has a separate legislation for this—its own Disturbed Areas Act (DAA) which came into existence in 1992. Even if the DAA for J&K lapsed in 1998, the government reasoned that the state can still be declared disturbed under Section(3) of AFSPA.

Is Tripura then the first state to completely do away with AFSPA?

No. It was applied in Punjab and Chandigarh in 1983 due to secessionist movements and lasted for 14 years until there 1997. What is interesting was that while the Punjab government withdrew its DAA in 2008, it continued in Chandigarh till September 2012 when the Punjab and Haryana high court struck it down following a petition filed by a local member of the Janata Dal (United).

Overview:

The Armed Forces (Special Powers) Act, or AFSPA, is one such example. Nothing, it seems, can move the Central government to have this draconian Act repealed or moderated — not Ms.Sharmila’s hunger strike, not the periodic eruptions of violent street protests against it in Imphal or Srinagar, not even the recommendations of three high-powered panels set up by the Central government. These include the 2005 recommendations of the Justice Jeevan Reddy Commission set up to “humanise the AFSPA”, as former Prime Minister Manmohan Singh said; the 2005 VeerappaMoily-led second Administrative Reforms Commission (ARC); and the2013 Justice J.S. Verma Committee set up in the wake of the December 16, 2012, Delhi rape case, looking into reforms to speed up as well as ensure conviction in rape cases.

While the Justice Jeevan Reddy Commission and the ARC had no doubt that the AFSPA had to go and that its provisions be incorporated into a civil Act, the Justice Verma report mentioned the Act as a part of a section on offences against women in conflict areas. “Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law,” the report said, adding that “there is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.” This resonates with the ruling by the Supreme Court in July that the Army and police are not free to use excess force even under the AFSPA. However, none of these have made any real difference to the status of the AFSPA.

There is obviously a very strong lobby, not just of the military but also a prominent section of the Indian intelligentsia, which believes that the country cannot hold itself together without the use of its military. This is indeed a sad reflection on a country which calls itself a republic. What does it say about India that it does not trust, even after nearly seven decades of independence, its people or its police? If in a republic the military is an instrument of war, can it wage war on its own people?

It is true that there are many violent insurrections in India which must be met militarily, at least in the short run. But if the situation has not subsided even after so many years, isn’t there something seriously wrong with the nation itself?

Keeping internal order is the job of the police. And if the firepower of the police is felt to be inadequate sometimes, it is understandable that the military has to be called in its place. However, should not the military in such situations be seen as doing policing duty and therefore be put under the provisions of civil laws for as long as it performs these duties? If India thinks this is war, it should in all fairness allow international laws of war, such as the Geneva Conventions and Hague Conventions, to be invoked, allowing international bodies such as the United Nations and the International Committee of the Red Cross to intervene and moderate. And if it doesn’t think so, then what is wrong in asking the military to be governed by civil laws while on civil policing duties? In the mistrust of its own people and in the military aggression on its own people sanctioned by the AFSPA, India has inherited the DNA of the imperialist administration. Should not this vestige of injustice from the past be purged?

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