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lady sacrificing her life, agitation by civil society and calls from international forums the Government still have not repealed the Act.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.

2. 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of India took the plea that it is a temporary measure for meeting an extra-ordinary situation and it would be withdrawn as soon as possible.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?  

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

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[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.

LET’S MOURN THE DEATH OF MOYFAR RAJA

WALIULLAH AHMED LASKAR

A vegetable vendor named Moyfar Raja, aged about 45 years, son of late Tajamul Ali, of Village Baldabaldi Part-II, P.O. Jamira under the police outpost of Jamira within the jurisdiction of Katlichera Police Stattion in Hailakandi, Assam was arrested at about 11am on 10 June, 2008 by Pijush Kanti Roy, in-charge of Jamira outpost and allegedly was tortured to death at 5 pm the same day. This information was published in local newspapers on 11 June, 2008.

Having learnt from the newspapers about the incidence, Barak Human Rights Protection Committee formed a fact-finding team. The facts stated herein are based on the preliminary report of that team.

Moyfar Raja, the deceased belonged to the poorest stratum of the society. He worked as a daily wage labourer and sometimes as a vegetable vendor. He was supporting his wife, 3 sons and 3 daughters with livelihood. According to his relatives and neighbours, he was generally a peace loving and law abiding citizen, though there was a police case pending against him.

Family members of the deceased state that he, as usual, he went to Jamira Bazar in the morning on 10 June, 2008 to sell his vegetables. They were later informed that a police team comprising of constable Bashir Uddin and Home Guard Nijam Uddin Laskar led by Sub-Inspector Pijush Kanti Roy, in-charge of Jamira Outpost picked him up. According to them, the police team was going somewhere else but when they saw the deceased they nabbed him. Legal procedure of arrest was not observed properly. Requirements of arrest issued by the Supreme Court of India in D K Basu Vs. State of West Bengal (AIR 1997 SC 610) were not fulfilled. The guidelines regarding arrest issued by the National Human Rights Commission also were not complied with. Even no 'arrest memo' was prepared, it was revealed during the said fact-finding efforts of BHRPC.

Family members of the deceased and his other companion vegetable vendors alleged that the police team started to beat him with cane sticks in front of them. They continued to do so along the way to the police outpost and even in the lock-up. At about 2 pm when his condition became critical due to a serious head injury sustained during the beatings by police, he was taken to Jamira Primary Health Centre. Doctors at the health centre referred him to Hailakandi Sontosh Kumar Roy Civil Hospital due to the seriousness of his condition. Dr. Rehana Begum, a doctor at the H S K R Civil Hospital states that the deceased was received at the hospital at about 5 pm and he was found in coma and it was also observed that he had a serious injury in the head. He died on the stretcher while he was being taken to the ward.

On the other hand, the police alleged that the deceased was wanted in connection with Katlichera police station case No. 70/03 which was registered under sections 147, 148, 149, 323, 427 and 302 of the Indian Penal Code, 1860. There was also a non-bailable warrant against the deceased issued by the Additional Chief Judicial Magistrate of Hailakandi in connection with G R Case No. 545/03, which was registered as a result of the said FIR. Constable Bashir Uddin and home guard Niajm Uddin laskar alleged that soon after the arrest the deceased complained of his ill-health. But there is no answer to the question as to why the deceased was not sent for medical examination and treatment as law also mandates it.

It appears that there were serious charges against the deceased. But allegations of offences, howsoever serious they may be, do not render a person bereft of his basic human rights. Crimes on the person of an accused or suspect are equally prohibited as in the case of any other persons. Facts alleged before the BHRPC team prima facie establish a case of torture and murder attracting punishment under section 302 and 34 of the IPC. Such cases fall under sections 154 and 174 of the Code of Criminal Procedure, 1973. Section 154 mandates the officer-in-charge of a police station to register an FIR on receiving information about commission of a cognizable offence and section 174 enjoins upon such officer a duty to report the case to the nearest magistrate if he receives information that "a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some person has committed an offence" relating to the death. This procedure is prescribed by law to ensure impartial and prompt investigation into the incidence and thus to facilitate the prosecution and conviction of the offender.

This incidence of custodial death amounts to extra judicial killing, which flagrantly violates rule of law, basic features of the Indian Constitution and Articles 21 and 22 of the Constitution as interpreted by the Supreme Court of India.

This incidence is also a gross violation of the international obligation of the state of India, which has bound itself under various human rights treaties and other instruments, such as Articles 3 and 5 of the Universal Declaration of Human Rights. India is a party to the International Covenant on Civil and Political Rights, 1966 and it is the obligation of the state of India under Article 2 of the covenant "to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant". Article 6 of the Covenant recognizes right to life stating, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The present case clearly shows the failure of Indian state to respect its obligation under this Article. Moyfar Raja was deprived of his life arbitrarily by its agents. The case also attracts Article 7 of the covenant, which reads, "No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which India is a signatory, defines torture in its Article 1 as " any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". No further analysis is needed to show that this case falls under the definition. In spite of the fact that torture is universally prohibited, the Supreme Court of India held that the right to freedom from torture is also inherent in Article 21 of the Constitution.

The phenomenon of custodial death was brought before the Supreme Court in many cases. The Court issued 11 requirements to be fulfilled in cases of arrest in order to mitigate this evil in D K Basu Vs. State of West Bengal (AIR 1997 SC 610). While issuing he requirements the Supreme Court observed, "the custodial death is perhaps one of the worst crime in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22 (1) of the Constitution require to be zealously and scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel inhuman degrading treatment would fall within the inhibition of Article 21 of the Constitution. Whether it occurs during the interrogation or otherwise. If the government becomes law-breakers it is bound to breed contempt for law and would encourage lawlessness to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen". As stated above the requirements pronounced in this landmark judgment was not observed in the present case. No arrest memo was prepared as it is prescribed in requirement No 2.

The National Human Rights Commission has also dealt with the cases of custodial death and issued guidelines regarding arrest and also prescribed procedure in cases of custodial deaths/rapes. It is obvious that NHRC guidelines regarding arrest were not followed in this case.

Justice M N Venkatachalia, Chairperson (as he was then), NHRC sent letters to all chief ministers vide letter No. No. NHRC/ID/PM/96/57 dated March 27, 1997 reminding them of a circular of the commission issued on the 14th December, 1993 requiring all the District Magistrates and the Superintendents of Police to report to the Commission, incidents relating to custodial deaths and rapes within 24 hours of their occurrence. He also stated that "if post-mortem examination is not thoroughly done or manipulated to suit vested interests, then the offender cannot be brought to book and this would result in travesty of justice and serious violation of human rights in custody would go on with impunity." He continued, "with a view to preventing such frauds, the Commission recommended to all the States to video-film the post-mortem examination and send the cassettes to the Commission." The Commission also prescribed a model autopsy form and additional procedure for inquest, which were annexed to the said letter.

Justice Ranganath Misra, Cairperson of NHRC (as he was then), also sent "letters to Chief Ministers of States on the video filming of post-mortem examinations in cases of custodial deaths" dated August 10,1995. These recommendations require (i) informing NHRC regarding custodial deaths or rape within 24 hours of occurrence, (ii) Vedio-filming of post mortem and (iii) prompt and impartial magisterial enquiry. Usually these requirements are not followed in Assam. If a magisterial enquiry was ordered, the report never sees daylight in most of the cases. Where the report is made public, it happens in rare cases, it is too late to have any effect. Such magisterial inquiry is no longer seen by the people as having trustworthiness. As the saying goes, 'justice should not only be done but it should also seemed to be done', this incidence requires a prompt judicial probe.

ELECTING A MURDURER AS THE HEAD OF THE STATE IN A DEMOCRACY

YES, GUJARAT ELECTED A MURDERER

In a meeting in his election campaign Gujarat Chief Minister Naredra Modi, after about fifteen minutes of Lalooeasque demagoguery began to command the crowd like a master puppeteer. The crowd in front of him was injected with a cocktail made of chauvinistic sense of Gujarati pride, urban selfishness and fascist reprehension towards “other communities”. The master puppeteer commanded the drunken puppets:

“They are calling me a murderer, tell me am I a murderer?” The earth and sky resonated with the mad cry of “NO!!”

“You elected me last time, tell me did you elect a murderer?” “NO!!”

Yes, Modi is a murderer. Gujarat elected a murderer. I dare say it. Because I don’t belong to the minority of Gujarat. And because I am not drunk with the cocktail too.

Leave aside the pre-planned and cold blooded genocide of the minorities of Gujarat in 2002 where Modi’s role as an instigator, conspirator, abettor and organizer was never hidden. You should not listen to me by birth and name I also appear to be a muslim. Don’t even listen to the liberals and secularists. Just listen to his own friends-in-arms and their families.

When the pota court pronounced its judgement in the Haren Pandya murder case, it had his father, Vitthalbhai Pandya, and widow Jagrutiben, crying foul and seeking re-trial. Both have long believed that Haren Pandya — a former Gujarat minister of state for home who was gunned down in central Ahmedabad in March 2003 — was the victim of a political murder. Vitthalbhai stated categorically in record that he believed it was Modi who was behind the killing of his son.

Now listen to Mdi himself and his crowd. He asked the crowd, “What to do with Sohrabuddin?” to which they answered “KILL!! KILL!!!” to which Modi responded “THEEK HAI”.

Sohrabuddin had been, in fact, killed in a fake encounter by Modi’s police. The accused have been arrested and the Supreme Court of India is monitoring the case. Mo was seeking endorsement from the public of an extra-legal killing, which matter was pending in the highest court of law of the land. So the Supreme Court issued a notice of contempt of court to Modi for interference in the delivery of justice. KTS Tulsi, the lawyer defending the Gujarat government quit his brief stating “If “KILL! KILL!!” is the law the chief minister of a state is propagating, then there is no need for the judiciary in this country.”

Democracy does not mean the rule of majority. Not, for that matter, a murderous mob. Can a democracy elect unanimously to eliminate another nation? Can a democracy decide to start men-eating? Can a democracy decide with absolute majority of 99% to eliminate the rest of 1%? These are not democracies. Without law, human rights and judiciary a democracy is nothing but a demon-crazy. Even sovereignty of nations has been curtailed to a great extent for humanitarian laws. There is the doctrine of humanitarian intervention which talks of military intervention by other nations if a country is found in a gross breach of International Human Rights Laws and treaties. The rule of law is the soul of democracy.

Modi killed this rule of law in his state. He killed human rights and justice. He assaults on Indian Civilization and on the core of our culture. He is armed with a Mdi-fied Gujarat and out to kill our constitution, our law, our culture, our civilization and our very humanity.

Nandigram Is An Act of Treason

Nandigram Is An Act of Treason

Nandigram is an act of treason. The CPIM, led by Karat at the centre and by Buddhadeb at state level, unleashed a large group of mercinery killers to occupy an Indian territory known as Nandigram in West Bengal. It was a pre-planned operation. The operation hatched by high level leaders of the party. They named it 'Operation Nandigram'. They virtually waged, fought and won a war of occupation against India. In the process more than 34 persons were killed,4/5 women were gangraped, thousands were rendered homeless,hundreds of houses and shops were burnt down and lakhs of people lost their sense of security and worth of existence. And most part of the genocide and vandalism was carried out not by the police but by cadres and other mercinary goons of the CPIM.Chief minister of West Bengal still talking in terms of 'US' and 'THEY'. The people who did not and don't support him and his party are termed as 'OTHER'. Whoever those other may be they can be killed or can be muffled their voices. These OTHERs may include Star Ananda, Medha Patkar, Aparna Sen, Rituporno Ghose, Shankha Ghose and many such persons. It does not matter. Whoever dares to tell the truth and protest against horrendous genocide or barbarism he or she belongs to the OTHER and shall be shut up.CPIM leadership claimed that Bhumi Uchched Protirod Committee took help of the Moists. As to the claim we can say: 1. If a group of persons help some hapless and helpless people what is wrong in it? 2. The Operation Nandigram ended, CPIM hoisted their flag but why they could not find a single person belonging to Maoist group. 3. If with the help of Maoists or any other group some people of Nandigram tormenting some other people then where were the West Bengal Police? Why the government did not deal with them in accordance with the law? 4. For what reasons the perpetrators of 14 March massacre were not nabbed and brought to book? 5. Why CRPF were not deployed when the state police failed? For keeping constitution in work the civil administration could ask for the help of armed forces of the country. 6. Why Medha Patkar, Star Anand, and others were prevented from entering Nandigram and attacked by Cadres. If it was necessary for the administration to prevent them from entering Nandigram for the shake of law and order, was it not the duty of police? 7. Why media were muffled?These and many other unanswered questions indicate clearly the strategy of the CPIM to occupy the villages by their brute force and making this shows an example for other parts of the state. After the occupation of the entire region the people who earlier belonged to BUPC turned overnight the supporters of the CPIM. They let to die their true human existence in order to only keeping the body alive. The lands and the people were conquered. And now there is Peace and a new Dawn in Nandigram, according to the CPIM. Off course, there is peace but it is an erie peace and the dwan is the dawn of terror. They succeeded to secede the territory from India and to establish a reign of terror.When CRPF first came they could not entre Nandgram because till then the operation was incomplete and now CRPF entred there to maintain the status quo which means the erie peace of vanquished and riegn of terror of the occupiers.Mr. Buddhadeb, Mr. Biman Bose, Mr. Jyoti Bose, Mr. Karat and other comrades committed a grievous act of treason against the consitution of India.