Finally, Supreme Court of India Takes Notice on AFSPA

By Priyanuj Gohain



New Delhi, Jun 18 : Finally the Supreme Court of India is seemed to have taken some notice of the controversial and inhuman Armed Forces (Special Powers) Act (AFSPA) applicable in the North East of India. Citing an example where the centre took different stances between allegations of fake encounter in Jammu & Kashmir and Assam, the Supreme Court bench questioned yesterday, June 16, 2011 as ‘How can you adopt diametrically different views?’ In the example used, the centre sought prosecution of the Rashtriya Rifles personnel for killing seven youth at a fake encounter at Chattisingpora, Jammu & Kashmir in 2004. On the other hand, the centre was found claiming that the army men accused of a similar fake encounter in Assam enjoyed immunity since they were under the powers of the Armed Forces (Special Powers) Act (AFSPA).

The Supreme Court asked the Government to confirm two issues:

1. Whether the Army/Para military personnel can enjoy immunity from criminal prosecution for any penal offence committed in discharge of their official duties, including fake encounters and rapes under provision of the AFSPA.
2. If an investigating agency like CBI conduct a preliminary inquiry into such accuses of rapes or killings before registering an FIR against accused Army/ Para military personnel

It is to be mentioned that The Armed Forces (Special Powers) Act (AFSPA) is one of the more draconian legislations that the Indian Parliament has passed and is implemented only in the North East States of India. Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill or arrest anyone without a warrant based on mere suspicion. This inhuman law which dignifies the basic human rights has been long protested by the people of the region; however the long cries and protests have never succeeded in making the centre realize the need to consider citizens of the North East states as human beings who needed same rights as fellow countrymen.

It was first applied to the North Eastern states of Assam and Manipur and was amended to extend to all the seven states in the north- eastern region of India.

A few of the brutal points about the Armed Forces (Special Powers) Act (AFSPA):

Why AFSPA is draconian and unconstitutional

• Section 3 of the AFSPA grants the power to declare an area disturbed to the Central Government and the Governor of the State, but does not describe the circumstances under which the authority would be justified in making such a declaration! This decision depends on the satisfaction level of the government and can not be judicially challenged, even if the state government does not agree. In fact the fact that North Eastern states always had an ex-military general as its Governor proves the parallel colonialism style Government which the centre tried to maintain with the use of the AFSPA.
• Under section 4, the army men are allowed to shoot to kill and the only requirement is the opinion of the army personnel! The army is also given the power to destroy property, arrest anyone and take to custody for as long as wanted. Needless to mention such powers have resulted in all the wrong results in the North East with the army accused of innumerable rapes, fake killings and tortures to thousands of innocent individuals.
• Section 6 of the AFSPA provides the Army with absolute immunity for all atrocities committed under the AFSPA. A person wishing to file suit against a member of the armed forces for abuses must first seek the permission of the Central Government! This AFSPA suspends the Constitutional right to take legal action.

AFSPA violates all International law

The AFSPA, by its form and in its application, violates the:

• Universal Declaration of Human Rights (UDHR). The following sections of this declaration is violated by the AFSPA: 1 – Free and Equal Dignity and rights, 2 – Non- discrimination, 3 – Life, liberty, security of person, 5 – no torture, 7 – equality before the law, 8 – effective remedy, 9 – no arbitrary arrest, 17 – property.
• The International Covenant on Civil and Political Rights (the ICCPR)
• The Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials
• The UN Body of Principles for Protection of All Persons Under any form of Detention
• UN Principles on Effective Prevention and Investigation of Extra- legal and summary executions.

Why this injustice and inhuman attitude to North-East alone

A law similar to AFSPA was once used by the British Army in Northern Ireland when they  carried out arrests under the Northern Ireland (Emergency Provisions) Act or the Prevention of Terrorism (Temporary Provisions) Act. Under this law, the detainees were held for seven days without charge. However the European Court of Human Rights found this to be in violation of the Human Rights Covenant and had abolished this law.

In India, however the Delhi high court had found the AFSPA to be legal and constitutional when it was challenged. When India had presented its periodic report to the United Nations Human Rights committee in 1991, Members of the UN challenged the validity of the AFSPA, questioning how the AFSPA could be deemed constitutional under Indian law. The Attorney General of India however only argued that the AFSPA is necessary to prevent the secession of the North Eastern states. This had made the stand of the Indian Government quite clear that it is not exactly concerned about safeguarding lives and interests of the people of this region but only to rule and exploit it.

Indian has recent rise in armed conflicts in all Maoist affected zones, where the magnitude of terror is found to be more than what it is in North East. However, Indian Government has neither deployed the army (Stating that Maoists are the citizens of India and Army should not fight their own citizens) nor declared the areas as disturbed to enact the AFSPA into those areas.

The matter of AFSPA and the right to human life for the people of North East seems to be in the hands of the Supreme Court of India. Is this the last hope for a right to live and dignity for this region? Only time will tell.