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Updated: February 12, 2013 00:41 IST

An abomination called AFSPA

Sanjoy Hazarika
Comment (34)   ·   print   ·   T  T  

Mr. Chidambaram has sought to blame the Army for the failure to repeal the draconian Act but the government is equally guilty as it has abdicated responsibility in the matter

At an institute that is virtually owned, funded and run by the Ministry of Defence (MoD), Union Finance Minister P. Chidambaram did the unthinkable the other day. He virtually attacked the Army for refusing to review and amend the draconian Armed Forces (Special Powers) Act (AFSPA), if not repeal it altogether.

Like a clever politician, he tossed the issue squarely into the lap of the Army and the MoD, saying they were unambiguously opposed to any change and that “you should ask the question to the armed forces and ask why are they so opposed to even some amendment to AFSPA which will make [it] more humanitarian. We have [the] Jeevan Reddy Committee report but yet if the Army takes a very strong stand against any dilution or any amendment to AFSPA, it is difficult for a civil government to move forward.”

This raises a startling issue about democracy, the rule of law and of civilian control over the military. Now that the most powerful figure in the Cabinet after the Prime Minister has spoken, perhaps someone will take notice. But the problem is far more complex than it appears to be.

After all, the Minister did not say why the Government of India has refused to publish the Reddy Committee’s report or even table it in Parliament eight years after it was submitted. It remains accessible on The Hindu’s website, the place where the report was first leaked and published verbatim in 2005.

It is not that the question is simple, stark and frightening: who runs the north-east or Jammu & Kashmir or any area that is affected by insurgency? AFSPA is put in place after the area has been declared “disturbed” under the Disturbed Areas Act, the enabling provision of law, which facilitates the summoning of the Army to the aid of civil authorities who are unable to control armed insurrection. This is the call of the State government or the Centre.

No prosecution in over 50 years

Passed in 1958 when the Naga movement for independence had just taken off, AFSPA is a bare law with just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act. In 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram). In the discussions over the past days, no one has even mentioned the regrouping of villages in both places: villagers were forced to leave their homes at gunpoint, throw their belongings onto the back of a truck and move to a common site where they were herded together with strangers and formed new villages. It is a shameful and horrific history, which India knows little about and has cared even less for.

Impact of Verma report

A year ago, two judges of the Supreme Court, intervening in a case where the Central Bureau of Investigation was seeking to prosecute army officers accused of murdering five villagers in Jammu & Kashmir, in what is known as the Pathribal incident, declared clearly that AFSPA’s protection was limited to acts conducted in the line of duty.

“You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” declared the bench of Justices Swatanter Kumar and B.S. Chauhan.

It’s simple: you don’t rape or murder “in the line of duty.” These are aberrations to the law of military conduct with civilians. And the Army is upset that the Justice J.S. Verma Committee even suggested that military men accused of sexual assault should be tried under normal law and not be protected by the law that guarantees absolute protection: Immunity.

A retired general came on a TV programme the other day and fumed that reviewing AFSPA was not the mandate of the Verma Committee. Sorry sir, you’ve got it completely wrong. The question of life and death in a “disturbed” area where, according to a case now before the Supreme Court 15,000 people (men, women and children) have disappeared from the killing fields of Manipur is everyone’s concern.

Army circles are worried that soldiers and officers will be dragged to civilian courts and that frivolous cases will be filed against them. This is a real matter of concern but it cannot be the rationale for blocking efforts to repeal or amend AFSPA. Come up with an alternative instead. But the MoD has not or is perhaps unable to do so. A former general even said publicly that 97 per cent of all cases against army men were found to be false. The question I will put is simple: how far back are you going? Do you forget those murdered, raped and tortured, their homes and granaries burned and their places of worship desecrated? Should these crimes go unpunished? Remember too that the Indian Air Force, in March 1966, bombed Aizawl and civilian targets in the Lushai Hills (now Mizoram) to repulse an insurgent attack that had almost overrun the district headquarters.

Many in Mizoram do not even talk about those days. They are simply spoken of as “the troubles” and no discussion takes place, such is the trauma that has been inflicted on people. And are we merely supposed to forget all this, to sweep it under the carpet and “move on”? Why should the victims continue to pay the price? Why not those who inflicted the devastation, who gave the orders and who carried them out?

Nagaland is peaceful now

We need to remember two points here about AFSPA and the place where it all began — Nagaland, in 1958. Nagaland today is peaceful. It is not free of intimidation, extortion or factional killings, but not a single Indian solider has fallen in combat here for the past five years. The State government has been asking, since 2005, for the removal of the Disturbed Areas Act. The Government of India refuses to listen.

What is the greater abomination then? Is it that the Army, which is easy to blame and always in the line of fire, is stuck in a thankless task? Or is it that the civilian government which first sent them there is unable to take the political decision that will bring the boys home? Fifty-four years is a long time to have a law as revoltingly brutal and obscure as AFSPA. Now, both sides are stuck. The army says it is like its “Bible” and that if the Act is removed it will face the prospect of fighting “with one hand tied.” The central government says that it can’t persuade the Army to back down.

What will it take to close this sad, ignominious and bloody chapter in our nation’s history? We will need to go beyond Mr. Chidambaram’s remarks — for what he was doing is to lay the blame at the door of the Army. That is not right for the civilian government is equally complicit in this. He is seeking to show that the “civilian” government is opposed to a doctrinaire securitised approach and that the MoD and the Army are isolated. But this approach doesn’t work. Instead, it shows that the two, even when isolated, are more powerful than the rest of the government put together. They have, after all, successfully stalled any effort to dilute or amend the Act. Why did the “civilian” government not have the courage to act in 2005 when the Reddy Committee gave its report, which not only recommended AFSPA’s repeal but also proposed a legal mechanism by which the Army could be used in extraordinary situations involving national security? Our essential recommendation was that no one could be above the law; everyone must be equal before and under it.

Display statesmanship

The Centre has lost more than seven years in coming to no decision on the recommendations. Yes, internal wrangling is difficult to resolve but how long should anyone have to wait for a resolution? Today, the situation has become much more complex because the window of opportunity provided by the Reddy Committee has virtually closed. The Army has bolted it because it does not want to be seen as the villain of the piece. It did not ask to go anywhere. It was sent to Nagaland and Manipur. But now it must, in its own interests and that of the country, get out of places where threats to national security simply do not exist, and when the central government thinks it should leave. After all, if required, the security forces can always be summoned again.

The situation calls for statesmanship of a very high order. Atal Bihari Vajpayee showed this in 2003 on his maiden visit to Kohima when he reflected, as Prime Minister, on the suffering that both sides had faced and sought to reach out and seek reconciliation: “Let us leave behind all the unfortunate things that happened in the past. For too long this fair land has been scarred and seared by violence. It has been bled by the orgy of the killings of human beings by human beings… Each death diminishes us … The past cannot be rewritten. But we can write our common future with our collective, cooperative efforts.”

The present situation demands measures no less significant from the current Prime Minister, who decided that AFSPA must be reviewed. But he did not follow this up because the opposition from the Defence Ministry was just too strong.

So, we must ask, as we rest and wrestle with this tortuous story: how many more deaths, how many more naked protests, how many more hunger strikes, how many more committees, how many more editorials and articles and broadcasts before AFSPA goes?

(Sanjoy Hazarika is Director of the Centre for North East Studies at Jamia Millia Islamia, New Delhi, and founder of the Centre for North East Studies and Policy Research in the north-east. He was a member of the Justice Jeevan Reddy Committee to Review AFSPA.)

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A big thank you to Sanjoy Hazarika for the article narrating our plight under such a draconian law. With the help of the AFSA the army is most of the time terrorising civilians in the Northeastern States while the insurgents are hardly bothered. In the recent BTAD violence we clearly saw how arms owned by former insurgents were used. Why can't the army use its "supreme power" to prevent these bloodsheds? As far as protecting minorities in places like Manipur is concerened, if there is a bomb blast does it spare the "minorities" on the roads and trains and kill only the "majorities"?

from:  sukanya
Posted on: Feb 13, 2013 at 12:24 IST

military shouldnot be allowed to dictate terms ,it should know its
limits. though military is essential for security over activsm in
matters related to civilian intrests would lead to disastous
consequences on democratic rights in future

from:  vishnu
Posted on: Feb 12, 2013 at 23:20 IST

although mr chidambaram played safe, but showed some courage in s
tarting a brainstorming on AFSPA. also mr hazuarika has vividly put
all disturbing and heinous use of AFSPA in past. at same time it is
necessary to give army some special power for national security, so
although it will be unwise to totally scrap the AFSPA but with time it
should be amended and the civilian govt. should show courage to
implement what it think is good for nation. i think we at present time
need a mass leader like mr vajpayeeji, indira gandhi who have public
support unlike present leader who did not enjoy much public support.

from:  anupam swain
Posted on: Feb 12, 2013 at 22:18 IST

PC is hiding behind the Army objection, and pretends to oppose AFSPA. The Congress has pushed/railroaded legislation/ordinances opposed by civil society when it suits them.

from:  Nakkeeran
Posted on: Feb 12, 2013 at 21:03 IST

With western forces leaving Afghanistan the Taliban and its master Pakistan would free up to focus on India and Kashmir again, now is not the time to remove AFSPA. If the govt is hell bent on doing so then they should not have army doing the law and order maintenance job and have police be responsible for that.

from:  Suvojit Dutta
Posted on: Feb 12, 2013 at 20:36 IST

The posters who are asking for the continuance of AFSAP in NorthEast, and giving childish reasons for it, have obviously never ever lived in a situation that is common for the people of Northeast. I do not want to make emotional appeals here, but do remember the naked protest by the Manipuri women against the rape and murder of Manorama Devi, and think what level of atrocity and feeling of helplessness could have driven those middle-aged women to protest in that manner. If we talk of rights, then AFSPA just about denies anyone any right to protest. Is that how a democracy is supposed to function? If you do want to integrate Northeast, make the people feel that they too can speak out, have their voices heard. This dollops of sympathy from time to time helps neither sides. And if one side speaks against that, the AFSPA is imposed against that?

from:  James
Posted on: Feb 12, 2013 at 19:02 IST

I fully agree with the author that in this day and age we should not have an Act like AFSPA, which is draconian and unaccountable. A law that grossly violates human rights and provides for immunity from prosecution can only result in highhandedness and continued oppression. To deal with security situation the normal laws of the land is enough. In case a more specialised Act is needed Parliament should deliberate it afresh and pass one with proper checks and balances. If we can deal with Naxalism in a large part of India and terrorism in Mumbai and Delhi with ordinary criminal laws, then we can work with the same laws in the North East and J&K.

from:  Joy
Posted on: Feb 12, 2013 at 18:56 IST

Even though the services done by Armed forces cannot be concluded in few words,crimes done by military personnel such as rapes is unpardonable and perpetrators in that case MUST be striped of their positions whatever it may be and must be brought under the common justice just like any other petty criminal.The AFSPA must be amended as recommended by Verma commitee,the govt and parliament must act..

from:  Mahesh
Posted on: Feb 12, 2013 at 18:51 IST

Any law which do not comes under the purview of human rights must be
abrogated without any delay. AFSPA is a blot on Indian democracy. It
took hundreds of lives and even culprits are capable in taking another
lives.In the name of maintaining law and order civilians are loosing
their life. Though one can not deny anti national activities in that
area but inhuman activities can also be not neglected.

from:  Osama Hasan
Posted on: Feb 12, 2013 at 17:55 IST

I think what has happened is this-
1.whenever there is some problem beyond the control of state govt.,
army is called in as panacea.
2.army, mandated to operate externally in wartime and internally only
in emergency situations so their internal operation is not protected by
law. so AFSPA was enacted but in good faith that it will not be abused/
misused by army and soon would be removed once situation is under
control.
3.while army was controlling the situation, civil govt. did not try to
improve and train its local police and forces to enable them to act and
handle such situation in absence of army. therefore army has no
confidence over them in handling it.
4.army with its obvious distrust over incompetent and non-professional
political leadership, fears that once they leave, the situation will
get worse and they will be called again to restore the situation and
there might be some unnecessary bloodshed.
5.People are interested in justice irrespective of source-military or
civil court.

from:  dhiraj kumar garg
Posted on: Feb 12, 2013 at 17:51 IST

I wonder when we have emergency provisions written in constitution of india for protection of state in case of any internal disturbances(Art 355) why are such laws required which declares a state to be disturbed and then implements AFSPA.

from:  Madhav
Posted on: Feb 12, 2013 at 16:17 IST

AFSPA is a necessary evil in a lawless and violent environment. The army personnel shed blood for the land that they are not able to buy and own. Under constant threat of Islamic terrorists and the nefarious designs of the Pak army and ISI, the army needs all the protection and support we can give it.

from:  Vipul Dave
Posted on: Feb 12, 2013 at 16:10 IST

Though AFSPA has no doubt infringed upon the parameters of civil liberty and needs amendment. But before going to the extreme end of its criticism, the context in which it was enacted should always be remembered. Law and Order scenarios at times demand empowering armed forces with acts like these, the relevance of which can only be understood by understanding the ground level scenario. However, taking a middle way as agreed over by various stakeholders involved, some amendments should be made which is also necessary as law and order issues are not that critical as they used to be at the time of implementation of this act.

from:  lokesh pant
Posted on: Feb 12, 2013 at 15:16 IST

Really, Akshat Dhadda? Political parties are responsible? Then why don't you support a military dictatorship in other parts of India? Since political parties are the roots of all evil and the military is great, we should seek to be ruled by the military, right? Why do you want Manipuris or Kashmiris to remain under the boots of the military and at their mercy, while you want to enjoy democracy yourself? As an Indian citizen, I am ashamed of the Indian government's and Army's conduct. India is not a civilized nation.

from:  Mitra
Posted on: Feb 12, 2013 at 15:02 IST

Giving utmost importance to the national security and its integrity is crucial and critical for any country,if it is so facing such a challnges but it should not put the whole of its people at a risk of being vulnerable to any acts commited by army personnel in the name of 'protecting and defending the country', So, 'accountabilty' matters much here and which is crucial for being democratic as a country like india.

from:  aneel.sb
Posted on: Feb 12, 2013 at 14:54 IST

While you make a valid point about army getting involved in excessess
but as of today; I do not claim to know about other North Eastern
states but in Manipur, army is the only thing standing between non
manipuris and the insurgents. The local police stood mute and watched
as the protesters burnt down the assembly. Insurgents continually
threatens non manipuris to leave Manipur and go back to "India". So
while it makes sense to punish culprits involved in crimes not done in
line of duty; but to think that Manipur does not need AFSPA or army
would be foolhardy. And though it is right to talk about the rights of
peole living in Manipur, it would be worthwhile to investigate the
plight of those of us who migrated to Manipur. You may chose to
highlight the concerns of greater population but that does not in any
case means that you neglect the concern of minority living in Manipur.

AFSPA should stay until you or MOD can come up with an alternative
that ensure that we are safe too.

from:  Dhiraj
Posted on: Feb 12, 2013 at 14:31 IST

"Remember too that the Indian Air Force, in March 1966, bombed Aizawl and civilian targets in the Lushai Hills (now Mizoram) to repulse an insurgent attack that had almost overrun the district headquarters. " Seriously? You think that raid was wrong? You are getting so misguided by your wrong sense of pseudohumanity that you are advocating insurgents? Sorry if insurgents are killing army men and over running their headquarters then army guys have every right to engage them via ships, bombs or air raids. AFSPA is the only thing that holds kashmir and NE states together. That is my opinion and opinion of many Indians. Although Rape charges should be excluded from AFSPA.

from:  ram K
Posted on: Feb 12, 2013 at 14:20 IST

Had it been on the other side of the border the argument was easy to digest but in India if the Union minister says its Army's reluctance its quite bizzare. Its up to the civillian government to decide whether to repeal or amend the AFSPA not any disciplned Army. If the government is unable do so beacuse of its own political consideations , it can't blame the Army, who was sent in first place by government itself.

from:  Rahul Shahi
Posted on: Feb 12, 2013 at 13:52 IST

In a land like India, where polarization runs deep on the basis of caste, religion & color, & where these passions are being whipped up by the politicians for petty political gains, it would need a holisitic change in the mindset of the common people to bring about any visible change in the ways democratic and security institutions function in the state. Human rights issues cannot be looked through the prism of security. In a highly charged communal atmosphere created by the print & electronic media, it would be hard to imagine that the security apparatus is not affected by it while performing its duty. It is also hard to imagine why an Army whose Army cheif claims it to be the most moral Army in the world needs such a dehumanizing act to perform its duty. As long as the middle class, well-off urban Indians continue to view the Nagas, Kashmiris & people of other NE states as the "other", & this thinking is perpetuated by the corporate media, I as a Kashmiri don't have any hope on this.

from:  Misbah
Posted on: Feb 12, 2013 at 13:48 IST

@Akshay: That's easy to say when you're not a victim in one of those cases.

from:  KB
Posted on: Feb 12, 2013 at 13:47 IST

@Akshay Dhadda- What you are implying is that military rule is better than democracy? I won't go into debate on that but even if military rule was better, does military really need AFSPA laws to control the situation.

AFSPA suggests an emergency like situation which should not be prevalent for over 50 years. If it does, than anyways the military rule is of no good.

from:  Shekhar
Posted on: Feb 12, 2013 at 13:42 IST

The word "afspa" has become such a common household name in Manipur
that even a nursery kid knows it even though he/she doesn't know the
long form of AFSPA. This kid knows it because people around him talk
of AFSPA.Or because some incidents have happened to his/her family
relating to AFSPA. Whatever may be the source, what this kid must have
heard about AFSPA is not about peace and harmony, it's only about gory
things. In fact, people feel more distressed rather than safe because
of AFSPA. So, when there is such a pressure from the common people,
some like Irom Chanu Sharmila has been dedicating her life, the
government needs to do something for these distressed people.Because I
don't think AFSPA is the only answer to an insurgency-hit area.

from:  Moirangthem Reagan
Posted on: Feb 12, 2013 at 12:52 IST

AFSPA needs a rejig and the armed forces ( which once I respected a lot) also needs a make over so that it does not induct personnels who malign the image of armed forces just for the sake of their fleshy desires and officer who try to cover up the mess.

They say that they protect our country day in and day out and take pride in it .. that is true. They do it but they also take a price. The price I am talking is not the hefty salary they receive but the rape, murder and plunder they commit under the immune protection of AFSPA.

AFSPA needs rejig.

from:  pradeep
Posted on: Feb 12, 2013 at 12:14 IST

I wonder who is responsible before the citizens - the elected representatives of the people or the unaccountable Indian army which is and will continue to be notorious for encounter killings, arson, rape, torture and what not! Who gave the army so much power and why should they be treated with velvet gloves despite so many complaints and that not a single army personnel has been convicted of any crimes so far is a testimony to these. It is high time that the army should be kicked out of such special treatment and made responsible to the people at large.

from:  M.S.Chagla
Posted on: Feb 12, 2013 at 12:07 IST

It is the political parties who are responsible for the disturbance in
these areas. It is through military that peace has been restored in
these areas. The situation could be worse if the control was in the
hands of government. There might be some cases where military personnel
might have done something wrong, but that doesn't mean AFSPA act should
be withdrawn. Till the time military is present in these areas, peace
will be maintained.

from:  Akshay Dhadda
Posted on: Feb 12, 2013 at 11:35 IST

It is very sad that crimes are being committed by the persons who are supposed to protect us but what is more painful is that the victim's don't get the justice just because some law protects these guys.
In some cases the AFSPA is really required because sitting over here we might not know the reality of the ground where the ARMY is serving but committing crimes in the name of some law and getting away shows the very low morale of a dignified institution like ARMY.

from:  vikas
Posted on: Feb 12, 2013 at 10:54 IST

The Parliament had intended the draconian law to be a temporary
provision not later than 6 months! However the state has made it a
permanent feature to perpetuate its rule. It must be remembered that
violence from below cannot be curbed by violence from above!
Without addressing the grievances of the people and suppressing them
forcibly can only lead to a mass upsurge.

from:  umesh bhagwat
Posted on: Feb 12, 2013 at 08:09 IST

Any time limit less power is granted to anyone; it invariably corrupts the entity those powers are bestowed upon. If we want to maintain national integrity – the only way is to make the population feel that they are part of the republic. However small the marginalized population is and however mighty the occupying Army is – there is no way to keep discontent suppressed for ever. Legitimate concerns of the population have to be addressed. Only a political solution can be an enduring one. We cannot hope for a political solution in areas where AFSPA is in force. We may feel that such draconian laws are useful tools to suppress discontent – it may very well work for a while. But it cannot be a long term solution. The civilian leadership should have the courage and wisdom to find a solution to the vexing problems, and free the Army to focus on it’s primary mandate – prepare itself to face external threats.

from:  Soma
Posted on: Feb 12, 2013 at 05:33 IST

A draconian law like AFSPA does not belong in a democracy. Why the Army have to be above the law of the land? How can rape and other crimes against humanity be tolerated in the name of national unity? Even without laws like AFSPA, there is so much violation of basic human rights in our country. At least in areas where AFSPA is not in force, there is hope for prosecuting the perpetrators – usually police officers. We all know were those cases end up. In the case of Army in areas where AFSPA applies there is no scope for any prosecution. Isn’t the Government basically telling the Army that there is no law that they have to follow?

from:  Soma
Posted on: Feb 12, 2013 at 05:32 IST

Its true that in a democracy,the Armed Forces work under the authority of the Civilian Government.It was unwise of Mr.Chidambaram to pass on the question of ASPA to the Armed Forces.There are many reasons why the Defence Services are against repealing the ordinance.The chief of which is that secessionist groups in the North East,Kashmir and elsewhere have taken Rape and other atrocities as a weapon to gain International support when in actual fact no such atrocity has been committed.Servicemen should be given protection in such cases.
Modifications to ASPA are necessary so that justice for genuine victims and protection for Servicemen against fraudulent charges are both enforced.I am sure the Defence Forces will have no objection if their servicemen are protected from fraudulent cases.

from:  m.p.chandran
Posted on: Feb 12, 2013 at 05:08 IST

How come FM is talking about Internal Security and Defence
Ministry. After the Birth Date episode of Former Army Chief the
Nation knows that Army is just an arm in the Security
Organisation for the Security of the Nation. So how come Mr C is
speaking out for MoD under whom the Army is functioning, HM under
whom the Internal security is mandated and supporting which the
army is called in with granting them special powers, Law Minister
which drafts and authorizes/enacts all acts including/concerning
Army. So How come Mr C who is FM is speaking for all of them. He
may be highly powerful, but is he authorized to break all
protocols and and sweep all others under his open Dhoti? Is it
time some one in the cabinet told him to keep his nose out of
others matters. He is the person the best power to bring the
others to follow suit as he controls the string to the Purse
Known as allocation of Budget. So let him cut the budget of army?
n move them out n declare the places Un disturbed.

from:  viswanatha
Posted on: Feb 12, 2013 at 03:15 IST

Very insightfull article

from:  Radhika
Posted on: Feb 12, 2013 at 02:28 IST

It's a completely different world and a wholly different polity in
places like Kashmir, Nagaland, Manipur - places which we 'mainstream'
Indians just read about and xenophobically covet, with scant regard for
the conditions in which the average man/woman has to live through there.
It's high time these uncomfortable questions are discussed and answered,
and we realise that we can't just be a selective convenient democracy.

from:  Rahul L.
Posted on: Feb 12, 2013 at 01:33 IST

salute to SANJOY HAZARIKA.great job and with this kind of awareness,iam
sure one day justice will be provided to the thousands of people lost
their life and properties.

from:  jaki
Posted on: Feb 12, 2013 at 01:13 IST
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