THE TYRANNY OF AFSPA AND WHY IT IS A SCAR ON DEMOCRACY

by Babloo Loitongbam
Imphal Free Press
June 12 2011

This paper was presented at the Regional Workshop on War on Terror and Asian Democracy 17 May 2011, Kim Dae-Jung Convention Centre, South Korea organised by Solidarity for Democratization Movement in Asia (SDMA)



Introduction
In the discourse on terrorism and counter terrorism, September 11 stands as a watershed because of the attack on the World Trade Centre in 2001. Government of India (GoI) also took full advantage of the ‘War on Terror’ that followed, to clamp down on their own version of ‘terrorism’. But for the people of the North East region of India the traumatic significance of the date goes back much beyond; for, it was on the same day fifty-three years ago that the President of India gave his assent to the notorious Armed Forces (Assam and Manipur) Special Powers Act, 1958 (AFSPA).

In this paper we shall be discussing the human rights impact of both the old and invisible 9/11 as well as the new and glaring 9/11.

The Old 9/11
Once an area is declared ‘disturbed’ under AFSPA, special powers are granted to the Armed Forces of the Union to enter and search premises without warrant, destroy structures on suspicion, and arrest persons without warrant, detain and interrogate them to extract ‘operational intelligence’, use force even to the extent of causing death on mere suspicion. No prosecution or legal action can be taken up against the armed forces personnel without prior sanction from the Union government.

In the 1950s the Naga Hills was declared ‘disturbed’ under the Act as the self-determination struggle of the Nagas turned violent. The ‘disturbed area’ tag claimed the Lushai Hills in the 1960s as Mizos too embarked upon a similar path. Following the reorganisation of the North East region in 1972, the Act was amended to cover the new units carved out of Assam and extended to the state of Tripura. Under the new law the power to declare an area ‘disturbed’, which was hitherto confined only to the State/union territory is now extended to the Union Government. Gradually all the seven sister states of the North East region are pock-marked with disturbed area. In 1990 a similar law is enacted for the state of Jammu and Kashmir.

Under this Act, the Indian Air Force was used to bomb and strafe Aizawl, the capital of Mizoram, from 5 to 12 March 1966. Widespread practice of enforced ‘disappearance’, extra-judicial execution, rape, torture and arbitrary detention are documented and reported with depressing regularity and a climate of impunity is institutionalized.

The UN Human Rights Committee regretted that some parts of India have been subjected to declaration as ‘disturbed area’ under AFSPA for many decades and in these areas the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant. Article 4(3) entails upon the State party, availing itself of the right to derogate some of the human rights (excluding the core non-derogable human rights) by declaring a state of emergency, to immediately inform the other State parties through the intermediary of the Secretary General of the United Nations (1) the provisions from which it has derogated, (2) the reasons by which it was actuated and (3) date on which it terminates such derogation.

The Committee also stated its concern at the continuing reliance on special powers under these legislations resulting in serious human rights violations of the right to life (Article 6), right against torture (Article 7), right to liberty and security of person (Article 9) and right to fair trial (Article 14) committed by the security forces acting under these laws. It may be noted that articles 6 and 7 are human rights which cannot be derogated even in a state of emergency.

The Committee reminded the Government of India of its obligation to respect the right to self-determination of peoples (Article 1), right to freedom of expression (Article 9) and right to participation in governance (Article 25); and endorses the view of India’s own National Human Rights Commission that the problems in the areas affected by terrorism and insurgency are essentially political in character and that the approach to resolving such problems must also essentially be political, and emphasis that terrorism should be fought with means that are compatible with the Covenant.

While paying lip service to the values enshrined in the Covenant, the actions of the GoI as well as other limbs of governance are at odds with the said rights at the ground level or even at the discourse level. For example, the Supreme Court of India quickly disposed off the writ petitions challenging the AFSPA by passing a “notorious judgement” that upheld AFSPA’s constitutional validity. In doing so, the Court is not only ignoring the UN Committee’s specific recommendation to examine the Act’s compatibility with the Covenant but also directly undermining the right to life guaranteed by the Constitution of India itself. In a similar vein, the National Human Rights Commission continues to shy away from taking a position on AFSPA.

In the wake of an unprecedented public outcry following the custodial rape and murder of a Manipuri maiden, Thangjam Manorama, by the Indian armed force personnel in 2004, the Prime Minister promised the people of Manipur that “the Act will be replaced by a more humane Act”. Thereafter, the Union Government appointed the Committee to Review the Armed Forces (Special Powers) Act, 1958 with Justice B.P. Jeevan Redddy, a retired judge of the Supreme Court, as its Chairman. The Committee after considering the views of various stakeholders concludes that “the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness. It is highly desirable and advisable to repeal this Act altogether...”

The report was duly submitted to the Government on 6 June 2005. But instead of taking action on the basis of the recommendation the report is kept as a closely guarded secret. Thanks to the activism of ‘The Hindu’ newspaper, the report is now posted on its website.

In another damning report, the UN Racial Discrimination Committee has taken note of the racist nature of AFSPA, and urged the GoI to repeal AFSPA within one year as per the recommendation of the GoI’s own Review Committee. The GoI has not yet complied with the recommendation, nor has it responded to the series of reminders from the Racial Decimation Committee. These consistent acts of omissions of the GoI has driven the UN High Commissioner for Human Rights, Ms. Naveen Pillay, to lend her firm voice to the demand for the repeal of AFSPA terming it “a dated emergency law of a colonial vintage” during her only visit to India in March 2009.

Yet AFSPA continues despite international opprobrium. Votaries of human rights and democracy in the rest of the world may resonate with the 11-year-old hunger strike of Gwangju laureate Ms. Irom Sharmila Chanu for repeal of AFSPA. But the Indian State perseveres in painting her intensely moral struggle as a criminal act of self-destruction so that AFSPA may continue to rule the ‘disturbed area’ of the North East and Kashmir.

The New 9/11
The first response of the GoI to the US led “War on Terror” is the enactment of Prevention of Terrorism Act (POTA) in the year 2002. Besides the New York WTC attack in September 2001, the attack on the Indian Parliament in New Delhi in December 2001, too, acted as an added catalyst. But in the following years POTA was heavily criticized on two counts. One was that the POTA stood the time tested principle of criminal jurisprudence — that the accused is presumed to be innocent until proven otherwise — by putting the onus of proof on the accused. The second was that the POTA lent itself to widespread abuse, particularly in targeting the minority Muslim community and proved to be counter-productive. Intense lobbying by different sections of the society, including the human rights groups, resulted in the repeal of POTA by the Parliament in 2004. But simultaneously, many of its draconian provisions are re-grafted into a much older law called the Unlawful Activities Prevention Act, 1967 (UAPA) through an amendment.

This is not the first time that the democratic movement in India pushed away repressive laws. The infamous Maintenance of Internal Security Act, 1971 (MISA), which was widely misused during the national emergency (1975-1977) was repealed when the anti-emergency Janata Party lead government came to power in 1977. The Terrorist and Disruptive Activist (Prevention) Act (TADA) which was enacted in the aftermath of the assassination of Mrs. Indira Gandhi, by her own bodyguard, was made to lapse in 1995 following sharp criticism and popular discontent.

The 26/11 terrorist attack in Mumbai led to a lot of jingoism and muscle flexing, ‘Getting tough on terror’ is equated to bringing tougher laws. Soon more draconian provisions are introduced to the already draconian UAPA through an amendment adopted in the Parliament with virtually no debate in December 2008. This version of UAPA is the national anti-terror legislation today. The legislation seeks to locate the power and jurisdiction to “investigate and prosecute offences affecting the sovereignty, security and integrity of India” on a central institution called National Investigation Agency (NIA) on the lines of the Federal Bureau of Investigation in the US by encroaching on the constitutionally granted monopoly power of the states over “law and order” within their territorial boundaries. The Union Home Minister Mr. Chidambaram has, according to the Wikileaks, conceded that he was coming “”perilously close to crossing constitutional limits”” in empowering the NIA”.

Amnesty International’s concerns on the 2008 amendments to the UAPA include:
  • · sweeping and overbroad definitions of “acts of terrorism”
  • · no clear and strict definition of what constitutes “membership” of a “terrorist gang or organization”
  • · minimum period of detention of persons suspected to be involved in acts of terrorism extended to 30 days from 15 days,and the maximum period of detention of such persons to 180 days from 90 days - already far beyond international standards
  • · denial of bail to foreign nationals who may have entered the country in an unauthorised or illegal manner, except in very exceptional circumstances
  • · the requirement of accused people to prove their innocence under the Act
  • · the new legislation on the NIA authorises special courts to close hearings to public without defining or limiting the grounds under which they may do so.

There are, of course, many state/region specific legislations such as the Chhasttisgarh Special Public Security Act, Maharashtra Organized Crime Act, Public Security Act of Jammu and Kashmir, Punjab Security of State Act, Disturbed Area Act of Assam, etc., which are in operation as Counter Terrorism Measure (CTM) today in India. In fact, it is the combination of UAPA and Chhattisgarh Special Public Security Act under which Gwangju laureate Dr. Binayak Sen is charged. As a leading civil right lawyer commented, far from curbing terror, draconian laws used by a corrupt and communal police are creating conditions that will make the problem worse.

Old + New 9/11: The Manipur Case
‘Terrorist Act’ is defined in very broad terms under the UAPA, 2008. The actus reus of the offence include the use of bombs, dynamite or other explosive substance or firearms... or by any means of whatever nature. The mens rea of the offence is fulfilled if the act is done with the intention to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with the intention to strike terror in the people in India...

Under this definition, any Manipuri whose ‘Indian-ness’ is actively contested till date can be prosecuted as a ‘terrorist’ notwithstanding the fact that the 1947 Manipur Constitution which predates India’s Constitution and the then Manipur government elected democratically under the 1947 Constitution was summarily dissolved to forcibly merge the State into the Dominion of India in 1949. It is these circumstances which had given Manipur the dubious distinction of having the highest per capita ‘terrorist organisation’ in world - for a population of about a million, there are six ‘terrorist organisations’ listed under the UAPA. The same circumstances have been used to justify the unbroken operation of the draconian AFSPA for over five decades in the state effectively derogating all fundamental human rights for its people without recourse to emergency provision prescribed by International Covenant on Civil and political Rights.

The climate of total impunity ushered in by the State over the last five decades with its complement of subversion of democratic institutions, including the rule of law, can be gauged from the following episodes.

1. On the intervening night of 2-3 April 2011, when India won the International Cricket Council World Cup, the 80,000-odd Indian armed forces stationed in Manipur celebrated India’s triumph by firing several rounds from their automatic weapons for about 30 minutes. A 75-year-old Ms. Waikhom Mani who was fast asleep in her bedroom, at Nongangkhong village, about 800 meters from one of the military camp. was hit by one of these stray bullets and killed instantly. There is no report of any action taken.

2. On 20 April 2011, the vehicle of Justice T. Nandakumar of Guwahati High Court overtook a vehicle of the armed forces during the rush hour in the heart of Imphal, the capital city of Manipur. Ostensibly provoked at being overtaken, the officer and personnel of the 28th Assam Rifles in the latter vehicle chased the judge right up to the court complex and publicly berated the judge. The legal community were moved to protest high handedness of the security forces.

3. On 18 August 2010, Ms. Moirangthem Londhoni Devi, a school teacher and mother of Kangleinganbi (7 years) and Kanishka (4 years) took a flight to Guwahati to meet her husband. In the evening both of them were arrested for alleged involvement with the United National Liberation Front (UNLF), Manipur. Even though she was granted bail by a Judicial Magistrate on 6 September 2010 on the ground that there is no sufficient material against her, she continues to be under detention of the designated NIA court in Guwahati.

NIA used the draconian provisions of UAPA where the period of pre-charge detention may be extended to 180 days. The only thing that the Judge has to do is to find out whether the investigation has progressed or not. Even after the expiry of this period the court has denied her bail on the subjective feeling that the accusation is prima facie true. So on the vague accusation of being a member of a ‘terrorist organisation’ she continues to be under detention for more than ten months.

The banal negation of basic human rights and democracy itself is happening in a particular geographical and racial context in a country which is hailed as the largest democracy. Yet over these periods of negation of human rights which is almost as old as the history of independent and democratic India, vast parts of the so-called world’s largest democracy have remained indifferent to the negation of democracy itself in the North Eastern part of India.

Nothing seems to move the government. The Armed Forces Special Powers Act, 1958 and the Unlawful Actives Prevention Act, 1967 as amended in 2008 continues to be the lawless law in India where thousands of women, children and men silently endure all kinds of indignities that the State has devised in the name of countering ‘terrorism’.

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