Tuesday, 15 November 2011


Waliullah Ahmed Laskar

Fasting and sit-in demonstration in front of
administrative  headquarters of Cachar at Silchar,
Assam demanding scraping of AFSPA
on 5th November, 2011 
Barak valley, the southern part of Assam comprising of Cachar, Hailakandi and Karimganj districts has also been declared as "disturbed area" under the anti-justice draconian piece of legislation titled the Armed Forces (Special Power) Act, 1958 (AFSPA) and as a result the members of the armed forces have been given the power to use lethal force against civilians even to the causing of death on mere suspicion that they may act in breach of any law or any order along with the power to enter into any doweling places by breaking their entrance and search and seize anything without warrant and arrest any person without warrant and keep the arrestees in custody for unspecified times without charge in the valley along with the rest of Assam and parts of some other North East Indian states and Jammu and Kashmir. AFSPA also places the army above the law, constitution and judiciary for acts claimed to be done under the Act by barring institution of prosecution, suits or any judicial procedure in any court in India. The Act is in force in parts of North East India since 1958 and in Jammu and Kshmir since 1990.

Many say AFSPA is not an instrument of law and order; rather it is a declaration of war by India against some sections of its own people. The government of India and now particularly the army say that this empowerment to kill and torture the civilians and blanket immunity is needed to protect national integrity and national security by fighting insurgents and rebels. The government of India said that it was an extra-ordinary measure to meet an extra-ordinary situation and hence it was temporary. But, after 53 years it still continues in North East and it is in force in Jammu and Kashmir for 21 years. Union Minister for Health and Family Welfare recently remarked that if we were not able to lift AFSPA from some parts then what we were doing these 20 years. He said it while backing Jammu and Kashmir Chief Minister Omar Abdullah's move to lift the Act from some parts of his state.

Barak valley is in a way a separate unit in North East India geographically, ethnically, culturally and linguistically. More than 80% people are Bengali and Hindi speaking Hindus and Muslims. People of the rest of North East India belonging to various tribes do not readily accept people of Barak valley as their own. Simply because ethnically, linguistically and culturally the people of Barak valley are more like people of the rest of India. For law and order and other related purposes it can also be treated as a unit.

Nor there has ever been any armed rebellions or insurgencies in Barak valley against the state of India or any governments in India established by law since independence, neither any armed rebel or insurgent organisations ever formed and worked in the valley for its "independence from India" or separate statehood within India.

I am not denying the existence of one or two small organised groups of criminals in the valley. But the general public view them as groups of mercenaries nurtured by politicians to use them against their opponents and social activists who raise voice against corruption and oppression of the people by those politicians. This is a pure law and order problem and does not in any way amount to public disorder or a condition that is envisaged in the Naga Peoples' Movement for Human Rights case by the Supreme Court. The Supreme Court envisaged a condition of the disturbance of public order which falls short of the "armed rebellion" within the meaning of Article 352 of the Constitution of India calling for proclamation of emergency but exceeds the limit "law and order" problem. There has never been such disturbance of public order in Barak valley. the valley was once dubbed by Indira Gandhi, a former prime minister of India, "Island of  Peace".

Investigations by human rights groups have also shown that these groups have some sort of nexus with para-military and the army at some level. But if asked the governments and the army will show you some cases where they nabbed some people with illegal fire arms and explosives or where they killed some alleged insurgents or terrorists in encounters. But investigations by human rights groups in some of such cases also show that most of these cases are false and the alleged insurgents or terrorists are innocent victims. These investigations reveal that in most of the cases politicians use the army or paramilitary forces to eliminate their opponents or inconvenient social activists or to teach them some lessons. There came out some cases where businessmen or otherwise wealthy and influential people also use the forces like politicians against their rivals. The forces teach the intended people by raiding their houses mid-night, mercilessly beating up everybody in the raided house including aged persons, pregnant women and children and in some cases they also molest and rape minor and teenage girls, by arresting and detaining the intended persons for days in their custody where they subject such people to torture and other cruel treatment including electric shocks and water boarding etc, some succumb to these treatment and some are framed with false charges of keeping firearms and explosives illegally or letter or letter head of some little known armed outfit which are planted by the raiding forces before or at the time of raid and then discovered by them. This is in addition to the fake encounter killings. The forces do it for a few thousands of bucks because it also gives them chances of earning accolades, medals and promotions as well as it justifies continued militarization of policing and governance through the AFSPA.

Chief Minister of Jammu and Kashmir Omar Abdullah has been talking of de-notifying some areas of the state which was notified as disturbed areas under the Act (known as withdrawal or lifting AFSPA) for some days. He is backed by his father and Union Minister Faruk Abdullah, Union Minister for Health and Family Welfare Gulam Nabi Azad and most importantly by Union Minister for Home Affairs P Chidambaram, although the proposal is opposed by the army and Union Defence Ministry. But, nobody ever talked of lifting AFSPA from Barak valley. IS BARAK VALLEY MORE INSURGENCY-AFFECTED THAN JAMMU AND KASHMIR?

(There are so many other reasons of not only lifting AFSPA from certain areas but also entirely deleting the law from the statute book, which I discussed elsewhere)

Monday, 7 November 2011

Some of the reasons why AFSPA must go

Waliulah Ahmed Laskar

 Irom Sharmila Chanu (also known as the Iron Lady of Manipur) is on hunger strike for 11 years since 5 November, 2000 in demand of the repeal of the Armed Forces (Special Power) Act, 1958 which is in force in most area of the North East Indian states including all the districts of Assam and a similar version of the law is in force in Jammu and Kashmir since 1990. Government of India has enforced virtual emergency for more than 5 decades in North East under the Act derogating basic human rights to life and personal liberty of the citizens living in the AFSPA-affected areas. After 11 years of fast by a lady sacrificing her life, agitation by civil society and calls from international forums the Government still have not repealed the Act.
Here are a few reasons why I think AFSPA must go:

  1. A draconian law: The AFSPA is a piece of colonial legislation that gives the armed forces of India unfettered power: (i) to use lethal force on civilians even to the extent of causing death on mere suspicion that they may cause breach of any law or order, (ii) to search any dwelling places by breaking them on mere suspicion without warrant and (ii) to arrest people without warrant and to keep them in custody for unspecified time and more importantly the Act also bars the judiciary to question any acts of the armed forces operating under the Act in areas declared disturbed under the Act.

  1. Its continuance is based on lie: The Government of India took the plea that it is a temporary measure for meeting an extra-ordinary situation and it would be withdrawn as soon as possible. This plea was taken in parliament when the Act was being passed, in the Supreme Court in the Naga People s Human Rights Movement case in 1997 and in international forums including the United Nations Human Rights Committee. It is now 53 years in North East and 21 years in J & K. If a measure for this length of time is temporary than what is permanent?  

  1. The provisions of the Act militate against the purpose of the enactment: The non-state armed groups (insurgents, extremists or terrorists, whatever you may call them) need to be dealt with and contained because they violate rights of the people to live peacefully, they try to impose their will on the people and the state unlawfully and violently trampling the constitutionalism and the rule of law that are sine qua non for civilised human existence. It is the mandate of the state to maintain the reign of law and constitution and the writ of the government established by law along with ensuring security and safety of the person and property of the citizens. But when the state through its security forces and law enforcement agencies commits more atrocious acts than the acts which it professes it is fighting the difference between the non-state terrorists and the state gets blurred.

    The armed forces of India when operate under the AFSPA do not act for enforcement of the constitution and the law of the land or for protection of the life and property of the citizens. Because, they operate outside the constitutional and legal system of the land. The AFSPA places them above the constitution, law and human rights obligations. The AFSPA gives them the power to commit atrocities and wreak terror on the citizens which they are supposed to combat and prevent and protect the citizens from, with additional guarantee of immunity from any accountability. The mischief that is addressed in the statute is doubled by its provisions. To purportedly prevent the people from the terror of certain armed groups the sate itself has unleashed its unmatched terror upon the very people under the AFSPA. And it is not only in law but very much in practice.

  1. Problematic political premise: The political premise of the Act appears to be very problematic in the sense that it seeks in essence to impose “Indian-ness” through violence on some of the people of the country who are deemed not to be adequately “Indian”. This is apparent from the facts that despite naxalism admittedly being the biggest threat to the national security the Act is not extended to the naxal affected central India[1].  Rather, it is stated that the responsibility to deal with such problems rests with the state governments, which is very true. This discriminatory attidute can not be explained in any way other than the racial reading of the situation and believe in fascist violence.[2] The “Indian-ness” as it was understood by our freedom fighters and for which they embraced martyrdom is not one which would needed to be or which could be imposed through violence.

  1. A fraud on the constitution: The Act provides more than emergency powers to the armed forces fraudulently bypassing the provisions of the constitution of parliamentary oversight over the exercise of such powers. The constitution also imposes duties upon the Union Government to perform its obligations under the international treatises. India is a party to the International Covenant on Civil and Political Rights, 1966 (ICCPR) which provides for derogations[3] of some the rights in times of emergency declared legally, which are nonetheless derogated by the Act without such declaration. It is to be noted that the Supreme Court did not examined the compatibility of the Act with the international human rights laws in the Naga People s Movement for Human Rights.

  1. The law lacks legality: Both the procedural and substantial requirements of legality are conspicuous by their absence in this Act of the parliament. On the procedural level it is to be noted that the Act came not only as a product of a “decision” by the political executive (i.e., as an ordinance on 22nd May, 1958) but also subsequently escaped more or less unscathed from the “legislative oversight function” of a democratically constituted Parliament on 18 August, 1958. And finally, rather than returning the legislation to the Parliament again for reconsideration, the President readily gave his assent on the legislation, thus making it into a law on 11 September, 1958. On the substantial level the Act does not pass the test of precise definition as its terms are too vague and it also provides powers/measures disproportionate to the mischief it is intended to address.

  1. Arbitrary application: Not only the framing of the Act and its provisions are arbitrary but also the application of the Act by declaring certain areas as disturbed is also arbitrary inasmuch as the declaration of areas which are not disturbed in the sense in which the term is contemplated in the Act. For example, the southern part of Assam comprising of the districts of Cachar, Karimganj and Hailakandi tht is known as Barak valley is declared as disturbed area under the Act which can not be said disturbed in any meaning of the word. There has never been any insurgency in the area. And the former Prime Minister Indira Gandhi proudly declared it as Valley of Peace admitting the fact.

  1. Recommendations of the government committees: Every government committee which examined the Act opined against its continuity in the present form including the Administrative Reforms Committee headed by Mr. Birappa Moily. Most importantly, the Committee to Review the Armed Forces (Special Powers) Act, 1958 chaired by Justice Jeevan Reddy unambiguously recommended total repeal of the Act.

  1. Militarisation of democracy: The ethos and practices inaugurated, nurtured and sustained by the Act has led to critical erosion of normative (norms) and institutional mechanisms of a civilized democratic life which are critically manifest as (a) the near collapse of Criminal Justice System and (b) culture of impunity of unbridled violence in peoples life. The mockery of democracy is such that it can be termed as democracy at gun point.

  1. Traumatised Society: Actions taken under the Act caused hundreds of extra-judicial killings, rapes, torture, enforced disappearances forcing the people to live an uncertain terror-striken life bereft of human dignity. It has made the whole society mentally sick and traumatized.

And such many other reasons.

[1] However, it should be more than clear that I am not seeking extension of the AFSPA to any other parts of the country since I think it must be repealed completely. There are many other draconian pieces of legislation in force in naxal affected areas, though not of the nature of AFSPA, such as the Chhattishgarh Public Security Act etc. which also should be repealed. Rebelion in Central India is largely due to the deprivation, exploitation and oppression of the tribal people by the rulers and wealthy class. These are basically socio-economic and political problems and must be solved by democratic and peaceful political means. 

[2] The Prime Minister Dr. Manmohan Singh himself stated more than once that the biggest threat to the national security is from the left-wing extremism of the Central India. Union Minister for Home Affairs Mr. P Chidambaram calling naxalism bigger challenge than terrorism and insurgency stated that "(t)he most violent movement in India is not terrorism or insurgency but Left-wing extremism" and added that "[t]he burden of the governance cannot be shifted from the state governments to the central government....in the ultimate analysis, the responsibility of governance in the Left-wing extremism affected districts must rest with the states". (Naxalism is a bigger challenge than terrorism - Chidambaram, Time of India, page no 11, dated 14 September, 2011).
[3] Article 4: 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.