The Congress must repeal AFSPA if voted to power in 2019

[dropcap]T[/dropcap]HE manifesto of the Indian National Congress for the 2019 general election promises to 'review' the Armed Forces (Special Powers) Act 1958 (AFSPA) if voted to power. But liberal democrats in India will demand that it must repeal the 'nasty and terrifying Act' if voted to power, not just review it. The record of its misuse in conflict-affected states of the Northeast and Jammu & Kashmir is too compelling to retain it.

A brief  history of the draconian law

The Partition violence of 1947 led to the army being given special powers in the states of Punjab and West Bengal to use force by non-commissioned officers even to the extent of causing death; search of premises without warrant; and attack persons with immunity from prosecution. Similar powers were used in parts of the Naga Hills after 1947 to quell the demand for independence. The 'law' was originally named the Armed Forces (Assam and Manipur) Special Powers Act 1958. Its predecessor was the Assam Disturbed Areas Act, 1955 used to quell Naga insurgency in undivided Assam. The Assam legislation was based on the so called 'guidelines' of a 1942 Ordinance. The colonial legislation was approved in Parliament in 1955 at the initiative of Prime Minister Jawaharlal Nehru and the Assam Chief Minister Bishnuram Medhi. The Naga areas of Manipur's Ukhrul district were first notified as "disturbed" under the law, followed by similar notification in other Naga areas. A 1972 amendment made it possible for the  Central Government to apply the law without consulting state governments. In September 1980, the draconian law was applied to the whole of Manipur. It then became applicable to any area declared 'disturbed' by the state or Central Government without debate in Parliament.  By 2008, much of the Northeast had been designated 'disturbed'.

When the Chinese intruded in Northeast in 1962, the main preoccupation of New Delhi was not just maintenance of law and order but checking secessionism supported by hostile powers in the neighbourhood. This accounted for the persistence of the AFSPA in the Northeast, which ignored protests by the UN and other human rights agencies.

The atrocious July 2004 rape and murder of Thangjam Manorama at Imphal by Assam Rifles personnel led to an unprecedented naked protest by a group of women who stood in front of the Assam Rifles headquarters in Manipur and shouted slogans against the army. In an apparent sleight of hand, the government of India set up the Justice Jeevan Reddy Committee in 2005 to look into the matter. The Committee recommended the repeal of the AFSPA but advised the inclusion of its offending provisions in another law, namely the Unlawful Activities Prevention Act 2004.The Indian army was firmly opposed to the repeal of the AFSPA and the Reddy Committee report was kept a secret. The continuation of the AFSPA in the Northeast provided an opportunity to politicians, bureaucrats and middlemen to milk enormous funds from the Central Government in the name of fighting insurgency. The involvement of the Army/Assam Rifles prevented the state police forces from exercising their due powers under the existing Criminal Procedure Code and other laws under the Constitution since law and order is a state subject.

The Indian army was firmly opposed to the repeal of the AFSPA and the Reddy Committee report was kept a secret. The continuation of the AFSPA in the Northeast provided an opportunity to politicians, bureaucrats and middlemen to milk enormous funds from the Central Government in the name of fighting insurgency.

The Reddy Committee report adversely impacted the implementation of the government's 'Look East Policy' and the 'Northeast Vision 2020'. The five-member committee were all men with no room for a woman in a context in which there was increasing violence against women as documented in official agencies.

AFSPA has received considerable scholarly attention in India and abroad. A former senior civil servant made a detailed critique of the AFSPA and said that the existing Criminal Procedure Code was more than adequate to deal with the low intensity conflict in the region.

The indiscriminate firing and massacre of innocent civilians by the Assam Rifles personnel at Malom in November 2000 was followed by a 16-year-long hunger strike by Irom Sharmila who demanded the repeal of the AFSPA. But the law remained.

The Supreme Court of India intervened recently to check the increasing practice of extrajudicial executions by the security forces in Manipur under the protective umbrella of the AFSPA. The Court has stood firm against the claims made by the security forces personnel.

Turning to Jammu & Kashmir one needs only to refer to the 2018 report of the Office of the UN High Commissioner for Human Rights (OHCHR) on the human rights scenario in the state. The report stated (Noorani, AG, 'The Kashmir Wrongs', Frontline, April, 2, 2019) that armed groups as well as state agencies committed a wide range of human rights abuses.

On AFSPA and Use of Lethal Force

The report noted that Section 4 of the amended AFSPA, 1990, allowed any personnel operating under the law to use lethal force not only in cases of self-defence but also against any person contravening laws or orders "prohibiting the assembly of five or more persons". This provision contravenes several international standards on the use of force and related principles of proportionality and necessity, including the U.N. Code of Conduct for Law Enforcement Officials and the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which requires law enforcement officials to use firearms only as a last resort, and to use them with lethal intent only when "strictly unavoidable in order to protect life". According to the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Section 4 grants to soldiers far-reaching powers that violate the right to life and fails to build safeguards against excessive use of force. Given the restriction imposed by Section 7 of the AFSPA, 1990, most cases of alleged excessive use of force have never been investigated independently or prosecuted.

While the Supreme Court of India upheld the constitutional validity of the AFSPA in 1997, it has since passed orders challenging the restriction as provided in Section 7 that prohibits the prosecution of security forces personnel. In July 2017, the Supreme Court ordered the Central Bureau of Investigation to investigate alleged extrajudicial killings by security forces in Manipur. However, there has been no such initiative in cases of alleged extrajudicial killings in Jammu and Kashmir. (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, Mission to India (A/HRC/23/47//Add.1.), April 26, 2013, p.6. Parliament of India, Rajya Sabha, Unstarred question No.1463.) Since 2008, India has faced criticism in the U.N. Human Rights Committee for this black law.

The Reddy Committee report adversely impacted the implementation of the government's 'Look East Policy' and the 'Northeast Vision 2020'. The five-member committee were all men with no room for a woman in a context in which there was increasing violence against women as documented in official agencies.

"In February 2018, the Union Ministry of Home Affairs informed the Parliament that since 1990 the Jammu and Kashmir government had sought the sanction of the Central Government for prosecution of members of the security forces in 50 cases. The Central Government refused to sanction prosecution in 47 cases, while decisions remained pending in relation to 3 cases as of April 2018.

"In July 2017, the Armed Forces Tribunal suspended the life sentences and granted bail to five Indian Army personnel who had been convicted by an army court-martial on 12 November 2014 for the extrajudicial killing of three civilians in Macchil in Baramulla district in 2010. The killings, which were perpetrated on the night of 29 April 2010, had triggered violent protests in Kashmir in the summer of 2010 and resulted in the deaths of over 100 protesters. The Armed Forces Tribunal's decision to suspend the life sentences has not been made public. Neither the State nor Central authorities have challenged the Armed Forces Tribunal's order.

"In April 2013, the Supreme Court granted security forces the option to try their own personnel, and the Border Security Force exercised this option in a few instances to the benefit of its personnel. Thus, in June 2017, media reports indicated that the General Security Forces Court had acquitted two members of the Border Security Force accused of the extrajudicial execution of 16-year-old Zahid Farooq Sheikh on 5 February 2010. Human rights groups which have been in touch with his families stated they were unaware of the decisions of the military courts or the status of their cases. This had been one of the few instances where the State police conducted a swift investigation and filed a case against the Border Security Force personnel. Additional work may be needed to verify this case."

On Burhan Wani's Killing

Kashmir's Public Safety Act (PSA) is more draconian than the laws on preventive detention elsewhere. The report's criticism applies to all such laws.

In dealing with Burhan Wani's killing in July 2016 the report noted that creditably, it was widely criticised in India's print media. "Civil society groups estimated that between 90 and 105 people were killed during the unrest between July and December 2016. According to Srinagar-based Jammu Kashmir Coalition of Civil Society (JKCCS), 105 people were killed in the period following protests that spread across the Kashmir Valley after 8 July 2016. It claimed that deaths were caused by injuries from pellet shotguns, bullets, tear gas shells, as well as by drowning, inhaling chemical shell fumes and shooting by unidentified gunmen. Amnesty International, Human Rights Watch and the International Commission of Jurists all claimed there were over 90 fatalities in 2016."

While the Supreme Court of India upheld the constitutional validity of the AFSPA in 1997, it has since passed orders challenging the restriction as provided in Section 7 that prohibits the prosecution of security forces personnel. In July 2017, the Supreme Court ordered the Central Bureau of Investigation to investigate alleged extrajudicial killings by security forces in Manipur. However, there has been no such initiative in cases of alleged extrajudicial killings in Jammu and Kashmir.

The report said that paragraph 69 was very relevant to the situation throughout India. It should alert the courts to their duty: "Under international law, states must investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law. In order to fulfil this obligation, states are obliged to undertake prompt, rigorous and impartial investigations of such violations, and, whenever possible, to take judicial and other appropriate measures, in particular the provision of effective remedies to victims, including reparations. This has been explicitly affirmed by a plethora of case law of international and regional human rights bodies, as well as by states through the adoption of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Reparation Principles). Furthermore, there is a growing body of jurisprudence by human rights courts, treaty bodies and other mechanisms confirming the right to know the truth/the right to truth and the duty to preserve memory which emphasise the central importance of a thorough and effective investigative process in order to counter impunity effectively." Footnotes 103 and 104 contain a wealth of case law in support of these propositions.

On Recourse to Pellet Guns

The recourse to pellet guns was criticised by all. The report cites the law comprehensively. "There appears to be two distinct patterns concerning the casualties reported from 'encounter sites': (1) what authorities have called 'accidental killings' involve people not taking part in protests who are 'caught or hit in crossfire' or hit by a 'stray bullet', but Kashmiri civil society organisations and journalists have questioned the narrative of these supposedly accidental killings, and (2) authorities claiming that some of those killed were helping members of armed groups, including protesters throwing stones at security forces. Security forces reportedly used pellet-firing shotguns and live ammunition in these situations. On 15 February 2017, the Chief of Staff of the Indian Army General Bipin Rawat warned protesters that security forces would use 'tough action' against anyone intervening in security operations." Arrests of minors are ably documented.

In the light of this discussion, the Indian National Congress would be well advised to declare that the draconian AFSPA be scrapped if it comes to power in 2019 despite the arguments emanating from the spokespersons of the ruling Bharatiya Janata Party (BJP) who support the AFSPA.