First Person | In Defence

AF(SP)A is not the only act we need to worry about

Ghazala WahabGhazala Wahab

Irom Sharmila has been on an indefinite fast for the last six years protesting against the Armed Forces (Special Powers) Act. Force-fed by the government through a pipe in her nose, she has been urging the repeal of the Act, which is viewed as a license to the armed forces to arrest, kill and rape at will. Sadly, only those who have been keeping a track of the going-ons in Manipur were aware of her non-violent protest. The situation changed slightly, when she was brought to Delhi by her older brother a few months back and Shirin Ebadi, the Iranian human rights activist and a Nobel laureate on a visit to India lent her voice to her cause. As Ebadi appeared on the front pages of many newspapers, Irom and her protest also got some attention.

Meanwhile, roughly around the same time, on his visit to Manipur, Prime Minister Manmohan Singh rejected the recommendation of Justice Jeevan Reddy Committee report to repeal the Act. Prime Minister Singh said that the government would only consider reforms. So while the security forces clamour for even more stringent laws to fight terrorism and insurgency, the human rights bodies insist that the existing laws are excessive and need to be repealed. Since very little debate takes place between these two diametrically opposite viewpoints, most of the arguments appear frivolous or motivated.

For example, the arguments against AF(SP)A are based on two major planks: one that the Act, and because of it, the armed forces, have not been able to curb insurgency in the various north-eastern states of India. In fact, insurgency has only grown in the last few decades.

The second argument is that the Act provides a blanket cover for the security forces to commit all kinds of human rights violations. Both arguments are flawed. To begin with, the security forces are not meant to curb insurgency, their job is to only control the violent manifestation of it. To curb insurgency one needs political, social and economic intervention by the government. And most importantly, governance has to trickle down so that the people feel part of the growing India. Given this, the spread of insurgency cannot be attributed to the security forces. There is no denying the fact that any excess committed by the security forces adds fuel to the fire, but it is also true that the security forces do not wilfully commit excesses. Imagine a commanding officer telling his men to go out to rape and kill as part of operations.

It is not only hilarious but unthinkable. Yet excesses do happen, not only by the army but also the police forces (in fact, in some of the so-called peaceful states more custodial deaths have happened than in J&K). Even at this moment there are hundreds of complaints pending with the National Human Rights Commission. According to the army, whenever a complaint is made, the alleged violator is immediately suspended. A court of enquiry is ordered based on which summary of evidence is collected. Finally, the offender is either punished at the unit level or is court-martialled. In all cases, the civil authorities have the right to arrest the offender, but only after getting a clearance from the central government, because this is the cover that the AF(SP)A provides the army with. However, this cover is not provided to the army alone. Section 197(2) of the Criminal Procedure Code, which is applicable throughout India, gives this sweeping immunity to all public servants, implying that civilian prosecutors has to get permission from the central government before criminal proceedings are initiated against public servants, including the armed forces.

The discord here is that this permission is rarely given, especially in the case of the army personnel serving in J&K and the Northeast. And for this, as the army repeatedly contends, you cannot blame it. According to the NHRC website, in 2004, the then army chief Gen. N.C. Vij had informed the commission that since 1990, 131 army personnel, including officers, have been punished for human rights violations in Kashmir. It stands to reason that many more violations may have gone unreported and unpunished. It is also understandable that many cover-ups would have been done. But it needs to be understood that violations do not happen wilfully. Whenever there is a large density of security forces, violations are bound to occur. Cordon and search operations, a daily occurrence in J&K and which also happen in other parts of India following a riot also tantamount to violation. Moreover, AF(SP)A aside, other acts like the National Security Act, Officials Secrets Act, Disturbed Areas Act, Unlawful Activities (Prevention) Act and so on vest unquestionable powers with the law enforcing bodies, whether it is the armed or the police forces. Certainly, the law enforcing bodies have to be made more accountable, but more than that political initiative has to ensure that there are less and less reasons to resort to these draconian laws. And most importantly, reforms are needed, but not in the AF(SP)A alone, but in most of our law-enforcing acts, because 60 years after Independence no amount of regulations have been able to make India one, neither socially, economically nor psychologically.


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