‘How to Disarm the State’
Gobinda Krishna Nanda
The rampant misuse of the
Armed Forces Special Powers Act
(AFSPA) 1958 against rank and file and innocent civilians evokes the question of renouncement of the act. Only he, who has borne the brunt, understands it better and the law/act may seem draconian to him. When one looks at many excesses exercised by the security forces in the name of taming terrorism as well as maintenance of law and order, he will realize the flip side of the administrative hazards of implementation of such act/s. Examples galore. So, quite a few relevant questions need to be answered for shoddy/shady military operations in a democratic country. Terming all critics and protesters as "foreign funded NGOs" is nothing but a misapprehension of the fact.
Despite the gallantry, valour, dedication, professionalism etcetera many enviable qualities that are inherent in the army along with its legendary discipline, for which the army has won many laurels from national and international dais, there are also numerous incidents those have shamed this highly esteemed organization.
For example, the arrest and subsequent brutal rape and killing of Thangzam Manorama is not only a shameful blot on the face of the organization but also its related officials who perpetrated and abetted this heinous crime. And, as a consequence, the furore in its wake had bolstered the long standing demand for the repeal of the draconian act, although, there are reports that the situation made by ethnic unrest and the generation of a number of fierce armed separatist groups are potential impediments in that regard. The naked protest of the ten/twelve Manipuri women in front of Assam Rifles headquarters at Kangla Fort in Imphal on July 15, 2004, shouting and invoking 'Indian Army' to rape them had only exacerbated the situation—it drew much national and international attention, shame and criticism only to add to the embarrassment of the Government of India and the army itself. But the perpetrators got refuge behind the shield of the same act only added fuel to the people's ire: the general notion is that the army was trying to save those who let it down. It can only be said that, the entire incident is quite unworthy of an organization like the army whose record of service to the nation, ranging from internal flood and all other relief activities, curbing insurgencies to protect the country and also to defend the border from hostile nations, is exemplary.
And so, why cannot the citizens of some parts of this country think this country and its army as its own?
Whether AFSPA-1958 is a draco-nian law or not can be simply judged from some of its core regulations.
An ordinance entitled the Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958, was promulgated by the President on the 22nd May, 1958. Section 3 of the Ordinance powers the Governor of Assam and the Chief Commissioner of Manipur to declare the whole or any part of Assam or the Union territory of Manipur, as the case may be, to be a disturbed area. On such a declaration being made in the Official Gazette, any Commissioned Officer, Warrant Officer, non-commissioned officer or any other person of equivalent rank in the armed forces may exercise, in the disturbed area, the powers conferred by section 4 and 5 of the Ordinance.
Section 4 gives blanket power to 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 move persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, 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 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 hide-out by armed gangs or absconders wanted for any offence;
(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable 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.
Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest under Section 5.
The provision of Protection to persons as provided under Section 6 of the Act is often observed in its breach. No prosecution, suit or other proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or puported to be done in exercise of the powers conferred by this Act.
The following points merit serious attention :
A. The clauses like 'if he is of opinion that it is necessary so to do' in the sub-sections a) and b), and the clauses like 'arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists' or 'enter and search without warrant any premises' in the sub-sections c) and d) speak volumes of the power unleashed at the hands of army personnel even to a rank of Havilder.
B. The enforcers of this act are given legal protection under section 6 of this act that means erring personnel with grievous allegations can get away from punitive actions under the AFSPA umbrella.
It is also alleged that armed forces enjoy unlimited powers beyond the stipulated one, as, it is stated, an officer of inspector/ second lieutenant rank can confiscate anyone's property on the basis of mere suspicion. However, it is not sure how much truth is there in this allegation; but, when unlimited power is let loose, excesses may likely occur.
It can be inferred that no law in this world is draconian, if it is not.
It has often been argued that developed democracies like the USA, the UK etc have formulated and acted upon stringent legislatures against terrorist activities which are quite relevant and need of the hour. There are also excesses of enforcement of law, but the magnitude of misuse laced with rampant corruption and abetment makes India's case much complicated, Secondly, what they can dare, people here cannot even dream of. For example, after 9/11, the USA scoured the entire Afghanistan in search of Mullah Omar and Osama bin Laden, and finally became successful in killing Osama, at a secret hide-out in Abbottabad, in a clandestine military operation well within the geographical limits of Pakistan. And, what India did in IC-814 hijacking case or after the terrorist attack in the Parliament? Needless to say, hanging Afjal Guru secretly (in a judicial procedure where death sentence was imposed under evidences not fully convincing) will not serve the purpose.
Moreover, it has repeatedly been observed that the USA does not need any concrete reason to invade any country, e.g., Iraq or Libya, in this unipolar world. In India's case, can one even follow the method of 'hot pursuit' in decimating cross-border terrorism?
The imposition and application of AFSPA in all the seven North-Eastern states and Jammu and Kashmir has drawn fierce flak from all corners of the sensible society because it has unleashed a reign of state terror through its gross misuse, atrocities, fake encounter killings of scores of people (a bigger percentage of whom was later proved to be innocent people) and finally getting away with no or little punishment has earned abhorrence of people in general.
The Assam Rifles, one of the Paramilitary forces of India, deployed in Assam, was charged of killing ten innocent civilians in a retaliatory backlash in the aftermath of a bomb attack on their convoy at Malom Makha Leikai (Manipur, North East India). This incident is popularly known as the 'Malom Massacre' according to the name of the place of occurrence which included the killings of a 62-year-old woman Leisangbam Ibetomi and an 18-year-old Sinam Chandramani, a 1988 National Child Bravery Award winner.
It was reported that, on 2nd November, 2000, at around 3:20 p.m., the Assam Rifles troops got down from their vehicles following the explosion and opened fire towards people who were running for cover. Eight persons died at the bus stop while two others near a culvert inside the area.
The Assam Rifles launched a combing operation immediately after the bomb attack and the subsequent firing (by themselves only) in search of the culprits who made this bomb attack. During this operation, at least 42 persons including four women were hospitalized by the brutality of the same security force once again. The then Chief Minister of Manipur Mr Wahengbam Nipamacha's own security officer Laishram Shamo was not spared even after he had revealed his identity to the rampaging Assam Rifles troops. He sustained injuries at buttock, left leg and right arm and said that he was kicked and hit with gun butts by the troops even after he had disclosed his identity.
This atrocious and inhuman act incited Irom Sharmila Chanu [also known as the 'Iron Lady of Manipur' or "Mengoubi"(the fair one)], a civil rights and political activist and also a poet herself to go on for an indefinite hunger strike with a demand for the repeal of AFSPA-1958. Three days after her strike, she was arrested by the police on the charge of "attempt to commit suicide" u/s 309 of the IPC; she was later transferred to judicial custody. Her physical condition deteriorated sharply in the custody when the police had to employ nasogastric intubation (nose feeding) in order to keep her alive while under arrest. Since then, refusing food and water for more than 500 weeks, she is being called "the world's longest hunger striker". She is still under trial and is the icon as well as the inspiration of many against government misrule and repression.
Nevertheless, the unfortunate incident of Thangzam Manorama, that happened after all these, is clearly the embodiment of impunity itself, if not something more.
The Shopian rape and murder case enunciates the impunity and 'don't care' attitude of the security forces to exercise anything at will, and, sadly so, the prime investigating agency of this country, the CBI, in this case, it appears, has failed to deliver a neutral, unbiased investigation report and hence the justice. The CBI, whether a 'caged parrot' or a bird of prey unleashed- may be a matter of controversy to the elite circles, but, it seems, it fails to achieve for what it is meant.
This incident is one such case in point: on May 29th, 2009, Asiya Jan and her sister-in-law Neelofer Jan disappeared on their way home from their orchard. In the early next dawn, their bruised bodies with torn cloths mysteriously appeared in the ankle deep water of the Rambiara stream. The place, where the bodies were found, was encircled by three security camps of the Special Operation Group of Jammu and Kashmir police, the CRPF and the Army. It is interesting to note that the area was manned and monitored round the clock by hectic searches all night. But no trace of the women was found during the primary investigation. No movement was spotted either.
There were further allegations that the police investigation was mired with prejudices and suppression of facts including tampering of evidences. Several copies of post mortem reports with conflicting statements were circulated by the CID of J&K police. A week required to register a case further providing a deja vu of dilatory investigation process aimed at hiding or concealing facts.
The Chief Minister was forced to order a one man enquiry commission headed by a retired high court judge, Justice Muzaffar Jan under tremendous public pressure. He delivered his report within a month from the day of the incident. His report indicted four police personnel for dereliction of duty; it further went on to the extent of accusing them with deliberately tampering the evidence. However, no action was taken against the delinquent police personnel. At this point of time the state high court intervened and chief justice of the state high court, Justice Barin Ghosh, also, indicted the policemen by maintaining that either they themselves were the perpetrators or they were shielding the perpetrators. The erring cops were arrested after the court intervention only.
A CBI enquiry was ordered after three months of the incident. The CBI team exhumed the bodies after four months of the incident and concluded without any evidence that the two women had drowned. The CBI submitted a report of over thousand pages, and that too, surprisingly, without single evidence. Rather, it chargesheeted the doctors who had ruled out drowning and opined that sexual assault had occurred with the victims; it also chargesheeted the lawyers and others who dared to demand justice. Two eye-witnesses, who claimed to have heard the voices of two women crying for help near Rambiara stream from inside a police vehicle, turned hostile. Justice, however, remains elusive for these two women like thousands of others who have suffered almost the same fate like theirs. And, ironically, majority of people in the country believe in the neutrality of the CBI, which appears to be a myth, at least in this case.
[source : Kashmir Times—online edition, Saturday, June 01, 2013]
Chattisinghpora is a village in Anantanag district of Jammu, which is mostly populated by Sikhs. On 20th March, 2000, in the evening 15 to 17 unidentified gunmen in the uniform of Indian army personnel entered the vi'lage and ordered all Sikh men to gather at the gurudwara. They then opened fire thereby killing 34 men on the spot. Many others were injured and a man later succumbed to the injuries from bullet shots leading the death toll to 35. This incident happened just before the visit of US president Bill Clinton to India. This happening is called the Chattisinghpora massacre. This is the first ever incident when the Sikhs were targeted.
On 25th March, 2000, just five days after the Chattisinghpora massacre, the armed forces claimed to have killed five 'foreign militants' at Pathribal village in the same Anantanag district, responsible for the said massacre, in an encounter with the armed forces. The security forces also revealed that they had blown up the hut where these people were hiding after a fierce gun battle and had retrieved five bodies charred beyond recognition. The bodies were buried separately without any post-mortem.
A sense of suspicion and doubt clouded over the official claim of the armed forces due to several discrepancies noticed by local observers, political and human rights activists; the disappearance of five young men from Pathribal village of the same district actually mirrored a similar pattern. Local villagers were of the opinion that they were but innocent civilians killed in a fake encounter. The relatives and neighbours of the slain said that the security forces picked up Zahoor Ahrnad Dalai, Bashir Ahmad, Mohammad Yousuf Malik and two other youths, both named Juma Khan, in the following days of Chattsinghpora massacre. On 30th March of the same year, local authorities succumbed to the enormous public pressure and agreed to exhume the bodies and begin an investigation.
A special investigation team was created in the same year to inquire into the Pathribal killings case. The team collected samples from the relatives of the deceased and sent it to Centre for DNA Fingerprinting and Diagnostics, Hyderabad and the Central Forensic Science Laboratory, Kolkata. Two years later, a report by The Times of India. revealed that those samples were substituted with some other men, and, a fact, that both the forensic laboratories informed the state police more than a year ago.
The victims' families, however, still crave for justice even today and, it seems 'justice' is likely to be elusive for them as also in many other cases in the same State.
Even the Sikh leaders like Ranjit Singh and Niranjan Singh, former and present president of the Anantanag District Gurudwara Prabandhak Committee, rubbished the government's claim and termed this as the slaughter of innocent people at the altar of vested interests and cover ups.
[sources : www.qoogle.com, A publication on this topic from Rediff.com]
Jeevan Reddy Committee
The furore raised in the wake of the Thangzarn Manorama incident by many luminaries and civil society groups had caused the visit of the Union Home Minister and the Prime Minister in Manipur within a span of three months to review the relevance of AFSPA in the affected states.
The result was the formation of a five member committee chaired by former Supreme Court judge Justice B P Jeevan Reddy, the other four members being eminent personalities from different fields of experience and expertise; viz.,
1. Dr S B Nakade, Former Vice Chancellor and Jurist,
2. Shri P Shrivastav, IAS (Retd), Former Special Secretary, MHA,
3. Lt Gen V R Raghavan, Former DGMO, and
4. Shri Sanjoy Hazarika, Journalist.
The objective of this committee was to advise the government, whether
i) To amend the provisions of the Act to bring them in consonance with the obligations of the Government towards the protection of human rights; or
ii) To replace the Act by a more humane Act.
To come to its verdict, the committee held thirteen meetings, seventeen public hearings and received briefings from seven state agencies on the act. A total of fifty four individuals, fifty one organizations and five political parties submitted their views to the committee at various public hearings. There were a total of one hundred and sixty nine men and twenty seven women appeared before the committee in the North-East and at New Delhi.
Before submitting its recommendations, the committee had to keep in view three basic conditions:
a) The security of the nation must not be compromised,
b) The Fundamental Rights of the citizens must be of equal importance with reference to the Article 21 of the Indian Constitution,
c) The chief duty of the armed forces of the Union, namely, the army, the navy and the air force is to ensure the defence of the Union and all its parts. It can be inferred from this last point that the responsibilities of the forces in case of internal security or relief missions against natural disasters will purely be temporary in nature.
Indeed, the committee had a momentous decision to make. The committee expressed its firm view after prolonged deliberations:
a) The Armed Forces (Special Powers) Act, 1958 should be repealed. Therefore, recommending the continuation of the present Act, with or without amendments, does not arise. The act is too sketchy, too bald and quite inadequate in several particulars.
b) The Committee is also of the firm view that it would be more appropriate to recommend insertion of appropriate provisions in the Unlawful Activities (Prevention) Act, 1967 (as amended in the year 2004)
The fate of this report is yet to be known. Perhaps it has been dumped under the files which suffer similar fate for working against Government expectations, or found its place into some waste paper basket and had been waiting to be disposed off into some dumping grounds and finally to oblivion. But, the persecuted people still hope for justice which constantly eludes them. Although, the people’s resolution becomes stronger.
So, in view of the growing concern of people, on whom the democracy thrives, the AFSPA-1958 should be revoked to pave the way for democratic process with a view to retrieving the love, loyalty and confidence of the people. Otherwise, India will be seen as a country of the Parliamentary tyrannical regime with a democratic facade.
Vol. 46, No. 32, Feb 16 - 22, 2014