Along Longkumer
Consulting Editor
The debate over the Armed Forces Special Powers Act (AFSPA) and whether it should stay or be repealed has been an issue for quite some time. Whatever may be the merit of the AFSPA, its continuation is something that has been questioned, including by the political establishment in Delhi. In 2004, the Congress led UPA government set up a five-member committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of the Supreme Court. This was in the wake of intense agitation that was launched by several civil society groups following the death of Thangjam Manorama, while in the custody of the Assam Rifles and the indefinite fast undertaken by Irom Sharmila. Accordingly, in December 2006, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report. It is therefore very clear that the AFSPA, at least in its present form is unacceptable. However, the elected civilian government has not been able to do much other than to express concern and sympathy from time to time. We all know that the military establishment has vetoed any move to do away with the draconian law.
While during emergency or war it is justified to impose restraint on individual right as the security of the country is paramount, yet during peace time the AFSPA has no place. Here it should be pointed out that the AFSPA – continuously in force since 1958 was first used to counter the so called “Naga insurgency” during the difficult period in the 1950s. As far as Nagaland goes, there is now a ceasefire in place for many years and a peace process is underway between the Government of India and the Nagas. Cessation of hostilities with the Indian military has been successfully implemented in the last fifteen years or so. The question therefore is why do we need the AFSPA even after the war has ended and both sides are on the verge of a political settlement? Even the State government has been telling Delhi not to continue with the disturbed area tag.
A few months back, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions Mr Christof Heyns came out with a clear statement asking the Government of India to scrap the Armed Forces (Special Powers) Act (AFSPA) and pointing out that a law such as AFSPA has no role to play in a democracy. The UN Special Rapporteur, who had come at the invitation of the Government of India, conducted an interactive tour across the country including to the Northeast and submitted his report on various issues including on the AFSPA. As rightly mentioned, the AFSPA in effect allows the state to override rights in the ‘disturbed areas’ in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended. As noted, the right to life is contained in Article 21 of the Constitution, covering the Fundamental Rights. In this regard the UN Special Rapporteur was a little surprised and found it “difficult to understand” how the Supreme Court of India, which has on several other occasions upheld the right to life, could have ruled in 1997 that AFSPA did not violate the Constitution. So besides the military establishment, perhaps even the judiciary requires a rethinking as AFSPA clearly violates not only International Law but also the Constitution. Clearly the AFSPA is out of tune with current reality.
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