The Congress has steered clear of any debate on the AFSPA, leaving a politically untenable choice for the next government: repeal the Act or leave it untouched

With its recent decision to extend the implementation of the Armed Forces Special Powers Act in Manipur by another year, the United Progressive Alliance’s opportunistic posturing on the legislation has come full circle. The UPA’s rendezvous with the AFSPA began months after it took charge in 2004, with the alleged rape and murder of Thangjam Manorama Devi, a 34-year-old Manipuri, while in the custody of the Assam Rifles. Nine years have passed since the gruesome episode; three reports have been submitted to the Central government by judicial or quasi-judicial commissions constituted to examine the AFSPA’s reign in Manipur; two of them are yet to see the light of day.

The first commission set up — by the Manipur government — to investigate the custodial killing of Thangjam Manorama made it clear the Assam Rifles had offered little or no cooperation to its work. The Upendra Commission’s summons to Army personnel went unanswered, and the impunity offered by the AFSPA ensured none were brought to book for the act. Driven to the wall by popular State-wide protests, the Manipur government mulled repealing the AFSPA altogether. Then, New Delhi warned Chief Minister Okram Ibobi Singh against taking corrective action. The Damocles’ sword of “President’s Rule” prompted Ibobi Singh to target civil society groups pushing for the AFSPA’s repeal. Given that the prerogative to declare an area “disturbed” — and thus invite the AFSPA’s application to it — rested with the recalcitrant Union government, the Manipuri agitation soon fizzled out.

Subsequently, the UPA constituted the Jeevan Reddy Committee to “review the working” of the AFSPA. The Committee’s findings were submitted to the Union government in June 2005 but are yet to be made public. (A copy of the report was leaked to The Hindu and is accessible on the newspaper’s website http://www.hindu.com/nic/afa/).

Whatever be the content of the Committee report, its quiet burial was a clear indication that New Delhi was simply not game for a public debate on the AFSPA. The report needed to be cleared by various nodal ministries, including the Defence and Law Ministries, went the official line. Meanwhile, the Assam Rifles had successfully requested the Gauhati High Court to strip the Upendra Commission of legality for want of jurisdiction over a paramilitary force. The High Court, nevertheless, referred the Upendra Commission report to the Union Home Ministry for “speedy action.” The ball was once again in the Union Cabinet’s court, but the government refused to engage in a debate on the AFSPA’s merits.

Silence on the AFSPA proved costly for the Centre in 2010, when State governments in Jammu & Kashmir and Manipur were compelled to take a stand against the law. That summer, a groundswell of protests in the Kashmir Valley forced Chief Minister Omar Abdullah’s hand in coming out strongly against the AFSPA. He has since maintained the J&K government will endeavour to repeal the Act entirely from the State. Around the same time, a Division Bench of the Gauhati High Court overturned its previous verdict on the Upendra Commission report, declaring the Manipur government was free to act on its contents. Under enormous pressure from New Delhi, however, Ibobi Singh’s Cabinet agreed in November that year to re-impose the AFSPA on some parts of the State.

Panel confirms abuse of law

Amid this turmoil, the Supreme Court — acting on the basis of writ petitions before it — constituted the Santosh Hegde Committee to investigate six separate cases of possible AFSPA abuse in Manipur. Five of these killings, the Committee found, were “encounters” fabricated by both the Assam Rifles and the Manipur Police.

The Committee also held that security forces had used disproportionate force against persons with “no known criminal antecedents.” Most importantly, the Santosh Hegde Committee also unearthed evidence of the local police using lethal force in several instances, taking advantage of the immunity granted by the AFSPA. The Manipur Police was also conducting joint combing operations with the Assam Rifles in districts beyond those notified as “disturbed areas.” In the face of smoking gun evidence, the Centre duly informed the Supreme Court that the Cabinet Committee on Security would take a decision on the matter. That decision is still awaited.

Over the last nine years, the Union government has relied on a strategy of obfuscation to pre-empt any debate on the AFSPA. Prime Minister Manmohan Singh on various occasions has said his government follows a policy of “zero tolerance” against human rights abuses and custodial deaths. Yet, New Delhi has been unwilling to set the terms for a debate as to tweaking the AFSPA to prevent its abuse. P. Chidambaram, as Union Home Minister, has suggested that the government is for evolving a “humane” substitute to the AFSPA. Earlier this year, he also claimed that the “Army had taken a strong stand against any dilution” of the law.

Opposition from the armed forces does not, however, preclude the Home Ministry clarifying its position on the law. Mr. Chidambaram has not indicated whether he favours a complete or partial withdrawal of the AFSPA from J&K and the north-east or amendments to “dilute” its provisions. The Cabinet Committee on Security could certainly have put out an official note highlighting the various points of disagreement within the government. Instead, the UPA has left its position deliberately ambiguous. Its attempts to “build consensus” and “revisit AFSPA” have merely clouded the debate and ensured that political parties and civil society activists have all but two options to choose from: either repeal the Act or leave it untouched.

That the AFSPA lends itself to abuse is not contested. Several measures have been suggested by judicial commissions and commentators to tighten the legislation.

Progressive recommendations

The Justice Verma Committee constituted in the aftermath of the 2012 Delhi gang rape recommended that armed forces personnel accused of sexual offences should be stripped of AFSPA protection. The Jeevan Reddy Commission suggested there should be legislative prescriptions on “powers, duties and procedures relevant to the deployment” of paramilitary forces. Others have suggested that the government should provide its reasons for denying sanction to prosecute armed forces personnel in writing, which would then be subject to judicial review. These are progressive recommendations which occupy a middle ground — those accustomed to grandstanding on AFSPA will not find it difficult to agree on such proposals.

Yet, the UPA has made no effort to nudge the debate on the AFSPA in this direction. Its commitment to “zero tolerance” of human rights abuses flies in the face of encounter killings and riot-related excesses in Manipur and Jammu & Kashmir. Prospects for amending the AFSPA now appear bleak as political parties across the ideological spectrum have backed its continuance. If the BJP joined hands with the Congress in supporting the AFSPA’s extension in Manipur, the CPI(M) government in Tripura followed suit last week, extending the law’s reign by another six months. In skirting the debate on the AFSPA, the UPA has hitched the law to an ill-informed discourse on “national security” and ensured its survival for the conceivable future.

arun.sukumar@thehindu.co.in

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