AFSPA – Should it stay?

Zafri Mudasser Nofil
The Controversial Armed Forces (Special Powers) Act (AFSPA) won’t be lifted from the northern states and Jammu and Kashmir as of now as the Government has rejected the recommendations of an official committee for repealing the Act, which is dubbed as “draconian” by several human rights organizations.
Brushing aside all criticism against the Act by several human rights organizations and the recommendations of the BP Jeevan Reddy Committee report, the Home Ministry said the Act was needed for Army to operate in areas hit by militancy or insurgency.
The committee had submitted its report in 2005 suggesting scrapping of the law saying it was “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.
The committee was set up in November 2004, in the wake of intese agitation in Manipur following killing of Thangjam Manorama while in the custody of Assam Rifles and the idefinite fast undertaken by activist Irom Sharmila against AFSPA.
“The Armed Forces (Special Powers) Act, 1958, should be repealed. The Act is too sketchy, too bald and quite inadequate in several particulars,” the panel, set up by the then Prime Minister Manmohan Singh, had noted in its recommendations.
The other members of the committee were Lt. Gen (Retd.) V R Raghavan, former special secretary in the Union Home Ministry P P Shrivastava, former Vice-Chancellor of Marathwada University S B Nakade and senior journalist Sanjoy Hazarika.
Various organizations in the northeast have termed the controversial law as “draconian”. Ever since the killing of Manorama, Sharmila has been on an indefinite fast and had declared that she would continue her fast till the Act is repealed.
According to the special powers vested by the Act, any commissioned   officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area  of maintenance of public order fire upon or otherwise use force; even to the causing of death, against any person who is acting in contravention of any law or order, after giving such due warning as he may consider necessary, fire upon or otherwise use force; even to the causing of death, against any person who is acting in contravention of any law or order.
If he is of opinion that it is necessary so to do, he can destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made or any structure used as a training camp for armed volunteers or utilized as a hideout by armed  gangs or absconders wanted for any offence.
He can also arrest without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest.
The incident that prompted Sharmila, a locally published poert, to take the bold decision of the hunger strike took place on November 2, 2000, when paramilitary troops gunned down 10 civilains near a bus  stop in Imphal, suspecting them to be militants. Two days later, she refused to eat demanding the repeal of AFSPA.
And the 42-year-old woman, dubbed the “Iron Lady”, has not eaten since November 4,2000 and is forced fed nasally by doctors.
Supporters of Sharmila aruge that the AFSPA Act has not been imposed in all those areas that have “armed insurgency” but it is there in those places wherein “Indian-ness” has become problematic for the Indian State like the northeast,  Kashmir, and briefly Punjab).
Bimol Akoijam, an associate Professor at JNU,  has been suggesting that the Government could have easily repealed AFSPA and introduced a more ‘humane’ one by taking into account some of the criticism such as the power to shoot has been given to the Non-Commission Officers (NCOs).
“Well, don’t give the power to shoot to NCOs, but give it to Commission Officers, if not JCOs. And as for the ‘Right to Life, repeat the same argument given by the Supreme Court and introduce some safeguards along with dos and don’ts of the Supreme Court judgement of 1997. And also, provide a rationale for the new act, beyond the ‘bare act’ of the new ‘huamne’ legislation; the Government must say, unlike what it did while introducing the AFSPA in 1958 that we have ‘terrorists’ who indulge in ‘extortion’ and ‘intimidate’ and ‘kill’ innocent people in Manipur. ”
In Jammu and Kashmir, where there is also a strong demand for repeal of AFSPA, the “Agenda of the Alliance”, the common minimum programme of the People’s Democratic Party and the BJP, maintains status quo.
“While both parties have historically held a different view on the AFSPA and the need for it in the State at present…. The coalition Government  will examine the need for de-notifying ‘disturbed areas’. This, as a consequence, would enable the Union Government to take a final call on the continuation of the AFSPA in these areas,” it stays.
In October, 2011, the then Leader of Opposition in the Rajya Sabha and now Finance Minister Arun Jaitley had written an article in which  he examined the provisions of AFSPA and the need for its enforcement and applicability to Jammu and Kashmir.
“AFSPA gives protection to the personnel of armed forces that they cannot be prosecuted without the sanction of the Central Government. In case this protection is withdrawn it would empower various vested interests to prosecute officials of the armed forces and other para-military forces indiscriminately.
Obviously, this would disincentives personnel of these forces from taking adequate steps against the separatist groups. When the security forces are in favour of retention of this law, it would be highly   imprudent to allow anyone to seriously argue that political considerations require that this law be withdrawn or its enforcement be restricted only to certain areas.” He wrote.
“We seriously hope that a situation does emerge in future that the applicability of this law is either not necessary or is restricted only to some areas. That situation does not seem  to have arrived as yet. The withdrawal of this law would leave the administration of the unprotected districts only in the hands of the local police and thus incentivising the separatist and violent groups to increase their activities in these areas.
It would, therefore, be politically more prudent for the Chief Minister of Jammu & Kashmir (then Omar Abdullah) not to initiate a debate at a stage when circumstances still warrant the continuation of the operation of the law,”  Jaitley wrote. (PTI)

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