[Reader-list] Why temperance will not work with the AFSPA

[SUNDARA BABU]

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From: Ravi Hemadri <ravihemadri at gmail.com>



Why temperance will not work with the AFSPA

There are only two ways to proceed with the controversial Armed Forces
(Special Powers) Act, says Supreme Court lawyer *Rakesh Shukla*: retain it
or scrap it. Tempering it with pleas to refrain from ‘excessive use of
force’ etc will simply not work with an army trained to inflict maximum
damage

Withdrawal of the Armed Forces (Special Powers) Act (AFSPA) has become a key
issue in discussions on resolving the Kashmir situation. Innumerable dharnas
and protests in New Delhi and the northeast, including the nude protest by
women in Manipur on July 15, 2004, in front of the Assam Rifles headquarters
at Kangla Fort, Imphal, have focused on a repeal of AFSPA. The protest, with
a banner reading ‘Indian Army Rape Us’, followed the brutal torture, rape
and killing of 32-year-old Manorama on July 11, 2004. AFSPA has been in
force for the past 60 years in the northeast, and, in the ’90s, was a
comparatively new entrant to Kashmir.

In line with the colonial policies followed by the government of independent
India in tackling a wide range of social movements, the ancestry of AFSPA
lies in the Armed Forces (Special Powers) Ordinance, 1942 brought in by the
British to tackle the Quit India Movement. The Armed Forces (Assam and
Manipur) Special Powers Act, 1958, conferring special powers on members of
the armed forces, was initially brought into the state of Assam and the then
union territory of Manipur, in 1958, to tackle the Naga insurgency.
Subsequent amendments have seen the Act made applicable to Meghalaya,
Nagaland, Tripura, Arunachal Pradesh and Mizoram. Militancy in Punjab saw
the enactment of the Armed Forces (Punjab and Chandigarh) Special Powers
Act, 1983. According to the Statement of Objects and Reasons, giving the
rationale for enacting the legislation, the Act was brought in with a view
to enabling the police to deal with the extraordinary situation that had
arisen in Punjab and Chandigarh as a result of terrorist activities by
extremists and secessionist elements in the state.

In a similar pattern, the peak of the armed phase of the movement in Kashmir
saw the enactment of the Armed Forces (Jammu and Kashmir) Special Powers
Act, 1990 conferring special powers on the armed forces in disturbed areas
of the state of Jammu and Kashmir.

It is not commonly known that the AFSP Act would fit into a single foolscap
page and has one substantive provision which is the core of the legislation.
The section giving powers to the army to use force or fire to the extent of
causing death, to arrest without warrant, enter and search a disturbed area
is the controversial provision. Section 4 of the AFSPA reads as follows:

*Section 4:  Special power of the armed forces. Any commissioned officer,
warrant officer, non-commissioned officer or any other person of equivalent
rank in the armed forces may, in a disturbed area,*

   * (a) If he is of opinion that it is necessary so to do for the
   maintenance of public 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
   for the time being in force in the disturbed area prohibiting the assembly
   of five or more persons or the carrying of weapons or of things capable of
   being used as weapons or firearms, ammunition or explosive substances;*


   *  (b) If he is of opinion that it is necessary so to do, destroy any
   arms dump, prepared or fortified position or shelter from which armed
   attacks are made or likely to be made or are attempted to be made, of any
   structure used as a training camp for armed volunteers or utilised as a
   hide-out by armed gangs or absconders wanted for any offence;*


   *  (c) 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;*


   *  (d) Enter and search, without warrant, any premises to make any such
   arrest as aforesaid or to recover any person believed to be wrongfully
   restrained or confined or any property reasonably suspected to be stolen
   property or any arms, ammunition or explosive substances believed to be
   unlawfully kept in such premises, and may for that purpose use such force as
   may be necessary, and seize any such property, arms ammunition or explosive
   substances;*


   *  (e) Stop, search and seize any vehicle or vessel reasonably suspected
   to be carrying any person who is a proclaimed offender, or any person who
   has committed a non-cognisable offence, or against whom a reasonable
   suspicion exists that he has committed or is about to commit a
   non-cognisable offence, or any person who is carrying any arms, ammunition
   or explosive substance believed to be unlawfully held by him, and may, for
   that purpose, use such force as may be necessary to effect such stopage,
   search or seizure, as the case may be.*

The spectacle of parliamentary committees and review committees headed by
retired judges, like the Jeevan Reddy Committee, debating and pondering the
legislation defies comprehension. After the killing of Manorama and the
subsequent agitation for the repeal of AFSPA in 2004, Prime Minister
Manmohan Singh formed a committee headed by retired Supreme Court judge
Jeevan Reddy to review the law. The Jeevan Reddy Committee submitted a
report in 2006 recommending the repeal of AFSPA, but the government has
chosen not to officially make the report public.

AFSPA is not a complicated law with numerous sections and provisos requiring
deliberation. Perhaps the general perception that the government forms
committees as a safety valve when things are at a boil is justified.

The two options available are: either the section stays or it goes. The road
of “dilution” of the provision and the Act was taken by the Supreme Court
when it adjudicated upon the constitutional validity of AFSPA and pronounced
judgment in 1997. The Naga Peoples’ Movement for Human Rights challenged the
validity of the legislation in 1982. The Supreme Court chose to keep the
case pending for 15 long years during which atrocities mounted and people
living in the northeast were effectively deprived of their fundamental
rights.

In 1997, the court incorporated in the judgment, titled Naga Peoples’
Movement for Human Rights versus Union of India, certain do’s and don’ts
which were part of instructions issued by the army and made them binding on
the armed forces. These were in the nature of moral norms like “do not use
excessive force,” “do not ill-treat anyone, in particular women and
children,” and “do not torture”. In addition, the judgment directed that the
armed forces use minimal force required, hand over arrested people at the
nearest police station without delay, and conduct search and seize
operations according to the provisions of the Criminal Procedure Code. But
it upheld AFSPA as constitutional and valid.

The judgment of the Supreme Court seems to have made little difference to
the ground realities. This is instructive and a pointer to certain
dimensions that may help in forming a perspective on AFSPA. The Constitution
of India does not contain any provision for martial law. Giving independent
powers to the armed forces results in the army supplanting, rather than
supplementing, civil power. The dangers of not confining the army to
barracks and involving them in civil administration are clear from the
course of events in Pakistan.

AFSPA is the only law in the country that confers independent powers
directly on the army to shoot to kill, to mortar-shell places, arrest and
search civilian citizens in areas declared “disturbed” under the Act.
Section 3 of the Act specifies that the armed forces are to be used to aid
civil power. However, the impact of the use of phrases like “in aid of civil
power” has to be looked at in the context of the chain-of-command psychology
integral to the functioning of the army, which makes it unsuited to taking
orders from “mere civilians”. The consensus among all democratic governments
not to use the army against its own citizens has a sound basis in the
evolution of forms of government.

The ruthless training necessary to transform a man into a person who shoots
to annihilate the perceived ‘enemy other’ has to be taken on board. Niceties
like warning, using as little force as necessary, first firing in the air,
then shooting below the waist, which are to be observed by the police in
dealing with citizens have no place when nations wage war. The ability to
use maximum force to cause the utmost damage and destroy the enemy at first
strike is the *sine qua non* of a battle-ready army.

Awareness of fundamental rights, application of mind, and the gradual
escalation of the quantum of force to be used according to the needs of a
changing situation are against the very objective and training of the army
and will affect its battle-preparedness. The inevitable consequence of
giving independent powers to the army being large-scale violations of human
rights, our Constitution permits the army only to aid civil power.

In the constitutional scheme of things, the armed forces come under defence
and can communicate their views to the ministry. The consequences of
increasing the use of the armed forces to tackle “internal disturbances” can
be seen by recent statements to the media by Air Chief Marshal Naik,
chairman of the Chiefs of Staff Committee, that “If a soldier is to be
potent and effective in a counter-insurgency theatre, he must have all the
legal protection he can get”.

This brings us to one of the areas of deepest resentment against the armed
forces in “disturbed areas” where they have been deployed. In cases of
offences committed against civilian citizens by members of the armed forces,
the army has consistently resisted the jurisdiction of the ordinary criminal
courts of the country. Similarly, the central government has refused to
grant necessary sanction to prosecute, in the criminal courts, army
personnel accused of heinous crimes like rape. The commission of rape can by
no stretch of the imagination be included in acts done in the line of duty,
requiring legal protection.

The refusal of the army to submit to the jurisdiction, and the denial of
permission by the central government to prosecute army personnel in the
criminal courts remains true from the killing and rape of Manorama in 2004
to the killing this summer of three Kashmiri youth -- Mohammad Shafi,
Shehzad Ahmed, and Riyaz Ahmed, all residents of Nadihal in Baramulla
district -- who were lured into army custody with an offer of jobs and then
killed in a fake encounter. According to the police investigation, Colonel D
K Pathania and Major Upinder Singh of the 4th Rajput Regiment were the
perpetrators of the killings. However, they have not been taken into custody
or produced before a criminal court. It is the same story every time: for
example, in the 2000 case in Pathribal, the Central Bureau of Investigation
filed murder charges against five army officers -- Brig Ajay Saxena, Lt Col
Brajendra Pratap Singh, Maj Saurabh Sinha, Maj Amit Saxena, and Subedar
Idrees Khan -- for their role in abducting and killing five villagers in a
staged armed encounter. Court proceedings in the case drag on; none of the
accused have been taken into custody or brought before a judge. According to
certain media accounts, some of the accused have continued to serve in the
army and were even promoted. Similarly, in 2007, five alleged militants
killed in a joint operation in Gandherbal by the police and the army, later
proved to be civilians who had been abducted and murdered. Although charges
were filed against the police officers involved, the army officers
implicated were not handed over to the police for arrest and prosecution.

Even in cases where the criminal court has seized jurisdiction, and
chargesheets have been filed detailing evidence, the army insists on court
martial as an alternative. The Army Act under which court martial
proceedings are instituted is primarily for offences like disobedience in
front of a superior officer and violations of good order and discipline. The
perspective of justice from the point of view of the civilian
victim/survivor has no place in court martial proceedings. In fact, the
proceedings are conducted within army premises and presided over by army
officers. The atmosphere is a far cry from a space where a civilian witness
can depose free from fear.

On April 3, 1995, the Nagaland government constituted a commission of
inquiry headed by Justice D M Sen, retired judge of the Guwahati High Court,
to look into incidents of shootings, arson and rape in Akhulato, Kohima and
Mokhukchung, between December 1994 and March 1995. In the Kohima incident,
on March 5, 1995, a tyre of a truck that was part of a convoy of 16
Rashtriya Rifles burst while passing through the capital of Nagaland.
Rashtriya Rifles personnel mortar-shelled the town of Kohima, dragged people
out of their houses, and killed them, claiming that the convoy had been
attacked. The chilling findings of the Justice Sen Commission of Inquiry,
that the paramilitary forces committed cold-blooded murder, arson and rape
in the three incidents investigated, cannot be dismissed as baseless
allegations by human rights groups.

The consequences of the conferment of independent powers on the armed
forces, the lack of redress for offences committed, the army’s
chain-of-command philosophy, the training of a psyche tuned to killing the
‘enemy’ are factors that need to inform our thinking on the continuance of
the Armed Forces (Special Powers) Act.

*(Rakesh Shukla is a Supreme Court lawyer)*
http://infochangeindia.org/201010288578/Human-Rights/Analysis/Why-temperance-will-not-work-with-the-AFSPA.html