SOS e - Clarion Of Dalit: PIL - Repeal Armed Forces Special Powers Act

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Editor: NAGARAJA.M.R… VOL.10 issue.33…… .17 / 08 / 2016

PIL – Repeal Armed Forces Special Powers Act ( AFSPA )

An Appeal to Honourable Supreme Court of India & National Human Rights Commission

IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION

CRIMINAL WRIT PETITION NO. OF 2016

IN THE MATTER OF

NAGARAJA . M.R

editor , SOS e Clarion of Dalit & SOS e Voice for Justice
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
.
....Petitioner

Versus

Honourable Cabinet Secretary , Government of India & Others

....Respondents

PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.

To ,
Hon'ble The Chief Justice of India and His Lordship's Companion Justices of the Supreme Court of India.

The Humble petition of the Petitioner above named.

MOST RESPECTFULLY SHOWETH :

1. Facts of the case:

ARMED FORCES SPECIAL POWERS ACT ( AFSPA ) which is in force in north eastern states of india , Jammu & Kashmir is grossly violating human rights of civilians and aiding police , security personnel to commit crimes against humanity without accountability.

Even after 69 years of independence of india , government of india and state governments are using AFSPA to run day to day administration in above mentioned states. It proves both GOI & state governments have failed to democratically connect to people. There is historical wrongdoing at the time of annexation of these states into Indian republic. People’s opinion was not cared for at the time of independence , whether they want to be part of Indian union or not. Decision was imposed on them not democratically made , people were not convinced in a democratic manner. For the people of these states oppression still continues even after independence , only difference is oppressors have changed, previously they were britishers now it is delhi based Indians. Corrupt public servants of GOI & state governments have failed to take the government schemes to common people in earnest and failed to protect people’s democratic rights. The MLAs , MPs , Ministers are after power not to serve people but to make money. By imposing AFSPA , GOI and state governments are ruling with hand of terror. Police & security personnel are behaving just like terrorists , committing crimes against civilians with impunity without accountability. It is failure of democracy.

As per media reports, tens of thousands of civilians were killed and still being killed in fake encounters , lock ups , thousands of civilians illegally detained wrongly charged by police , security personnel. No legal prosecution of security personnel , police for their wrong doings , crimes. Police and security personnel are nothing but terrorists in uniform.

People are disillusioned and it is a fertile ground for raise of terrorist , separatist outfits. Some people view separatist leaders as their saviors. This faith is also misplaced. Terrorist leaders want a separate nation so that they can become ministers in the new government and make money by corrupt means.

Even till date , manipuris and others from north east india who are studying / working in other parts of india are looked down upon , viewed as foreigners with suspicion and ill treated , manhandled by other Indians. They don’t view them as their brothers , fellow countrymen. Problem also lies with the attitude of our society.

Real need of the hour is TRUE DEMOCRACY with full people’s participation and transparency , accountability in governance. When compared to all other forms of governance DEMOCRACY is the best. However pillar stones of democracy are honesty , integrity of people’s representatives , transparency in their actions.

2. Question(s) of Law:

Are Indian Military personnel & Police above Law ? why democracy , democratic rights , human rights being denied to people of north east india , jammu & Kashmir , since decades ? Is it not failure of governance by GOI ?

3. Grounds:

People of North eastern states of India , Jammu & Kashmir constitutionally guaranteed fundamental rights and Human Rights .

4. Averment:

That the present petitioner has not filed any other petition (which are admitted by courts) in any High Court or the Supreme Court of India on the subject matter of the present petition.

PRAYER:
In the above premises, it is prayed that this Hon'ble Court may be pleased:

a . Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the Union Cabinet Secretary , Government of India , chief secretaries of all state governments , the concerned public servants in the present case , to perform their duties.

b . to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.

d. to annul Armed Forces Special Powers Act which makes Indian Military Personnel & Police unaccountable for their actions.

e. to severely punish terrorists who are disturbing the peace in the country and on the same footing severely punish Indian Military Personnel , Police who are committing crimes against innocent civilians under the shelter of AFSPA.

f. to order GOI not to support any terrorist outfits as part of it’s counter terrorism drive.

g. to reopen all past cases of fake encounters , lock up deaths , disappearances and illegal detention of innocent civilians.

h. to investigate all those cases by a team comprising human rights activists , local residents and to legally prosecute guilty Indian security personnel & police.

i. to order GOI to set up a corpus to pay compensation to victims of terrorism by security personnel.

j. to dismiss guilty security personnel from duty , to recover money from their salary , pension , personal property towards the compensation corpus.

k. to release & drop all charges against all human rights activists including Ms. Irom Sharmila.

l. to order GOI , state governments to educate people about benefits of democracy , RTI Act , filing a Public Interset Litigation ( PIL ) to seek justice , etc.

m. to order GOI & state governments , to allocate adequate financial and other resources to these states , to set up educational institutions , primary health centres , drinking water facilities , electic supply , roads and other basic necessities to all villages. It is being denied since decades.

n. to order GOI & state governments , to set up transparent , accountable , vibrant lokayuktas / Vigilance commissions in north east states of india , Jammu & Kashmir , to handle corruption charges against public servants on fast track basis.

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.

Dated : 06^th August 2016 …………………….FILED BY: NAGARAJA.M.R.

Place : Mysuru , India……………………. PETITIONER-IN-PERSON

25 Years of AFSPA – 43000 Dead in 21 Years

Ghulam Nabi Magray recalls that the last time he saw his 17-year-old son, Javaid was in his room. It was on April 30, 2003. The next morning, he recalls, is that he saw his son’s dead body was in Soura Medical College, after spending a few harrowing hours at the Soiteng army camp, and then the Nowgam police station, Barzalla Hospital and SMSH Hospital. His son was picked up by the an official of the Assam regiment, and tortured to death. Moments after his son’s disappearance, Ghulam Nabi saw bloodstains and a broken tooth in the lane outside his house.

An FIR registered by the army against Javaid said that he had carried out “anti-national activity or militancy.” However, an inquiry carried out by the district magistrate said that the “deceased boy was not a militant…and has been killed without any justification by a Subedar.”

On April 28 2010, a man named Bashir Ahmad Lone asked three men Riyaz Ahmad Lone (20), Mohammad Shafi Lone (19), and Shazad Ahmad Khan (27) to travel to Machil, a place close to the Pakistan border, for jobs. That was the last anyone heard of them. The army reportedly killed the three in a fake encounter.

In the summer of 2010, more than 100 protestors were shot dead by security forces, while 3,500 were arrested and 120 detained under the Jammu and Kashmir Public Safety Act (PSA). And in 2014, the Jammu and Kashmir state home department, in response to a Right to Information (RTI) application, disclosed that 16,329 people had been detained in administrative detention under the PSA at various times since 1988.

In August 2011, the State Human Rights Commission (SHRC) in J&K stated that that it had found 2,730 unidentified bodies buried in unmarked graves in three districts of north Kashmir. The SHRC announced its intention to attempt to identify the bodies through DNA sampling.

The impunity of human rights violation in the state of Jammu and Kashmir is aided by the imposition of the Armed Forces Special Powers Act, 1990. Under section 7 of the Act, security forces are immune to prosecution from human rights violation. July 5, 2015 marks 25 years since the imposition of AFSPA and thereby, the killing, torture, kidnapping and rape of thousands.

An Amnesty report “Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir”, released Wednesday, documents the army’s excesses and looks at how the government’s response to these violations failed to deliver justice. What is momentous, the report adds, is that the current chief minister of the state, Mufti Mohammad Sayeed was the Union Home Minister when AFSPA was imposed on the state.

“The violence in Jammu and Kashmir has taken a terrible human toll on all sides. From 1990 to 2011, the Jammu and Kashmir state government reportedly recorded a total of over 43,000 people killed. Of those killed, 21,323 were said to be ‘militants’,10 13,226 ‘civilians’ (those not directly involved in the hostilities) killed by armed groups, 5,369 security force personnel killed by armed groups, and 3,642 ‘civilians’ killed by security forces. Armed groups have committed thousands of abuses. In general, victims of human rights abuses in the state have been unable to secure justice, regardless of whether the perpetrator is a state or non-state actor,” reads the report.

Activists, the report states, claim that the number of casualty is twice as much. Amnesty International alone records that in the early mid-1990s, more than 800 cases of torture and deaths occurred in the custody of the security forces, apart from hundreds of extrajudicial executions and forced disappearances between 1989 to 2013.

The report further notes that in December, 2013 both the Chief of Army Staff and Head of the army’s Northern Command declared that there was “zero tolerance” for human rights violence by army personnel. Despite that, “96% of all complaints brought against the army in Jammu & Kashmir have been dismissed as ‘false and baseless’ or ‘with other ulterior motives of maligning the image of Armed Forces’,” said the report.

Complaints against excesses carried out by army officials and internal security forces are carried out within the military judicial system, denying fair trial. As per the Army Act, district court martial and summary court martials are restricted to rank personnel and two years imprisonment is the maximum punishment they can award.

It also notes that, “ … security forces operating in Jammu and Kashmir have exacerbated this situation by routinely failing to cooperate with criminal investigations, civilian courts and government-ordered enquiries, and subjecting those pursuing complaints to threats, intimidation and harassment.”

The Army Act of 1950 also prohibits trying officers of the forces for “civil offences” like rape, murder unless it was committed while in service, outside India. As Jammu and Kashmir is considered a “disturbed area”, with the exclusion of Ladakh and Leh, officials claim to be in active service all the time and are tried by military courts only.

“The Supreme Court of India has also criticised the military justice system and recommended reforms on a number of occasions, notably in 1982 when it quoted another judgement which observed, ‘[c]ourts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of command influence. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command’,” reads the report.

The report was prepared by Amnesty based on field research, documentation and information provided by officials under the RTI Act, Jammu and Kashmir State Act and Central Act. Amnesty also met with 58 families members of victims of alleged human rights violations.

Till today, the army refuses to disclose the number of personnel deployed in the state. Experts claim that there are anywhere around 6,00,000 troops, to aid counter-insurgency operations and guard the ‘Line of Control’ bordering Pakistan. That is, “in addition to deployments of CRPF and BSF personnel, whose primary charge is to aid the state police in the maintenance of law and order,” says the report.

The ministry of defence has received several applications seeking sanctions to prosecute army officials for human rights violations, even though the number is difficult to ascertain due to the lack of transparency of the process. “According to a Ministry of Defence response dated 18 April 2012 to an application filed under the Right to Information Act, 2005 by activists in J&K, the MoD had received 44 applications seeking sanction to prosecute army personnel for criminal offences committed in Jammu and Kashmir since 1990,” reads the report. However, sanction was denied in 35 cases as of April 3, 2012.

Three families have challenged these denial of sanctions; family of Manzoor Ahmad Mir, who was taken away in 2003 and believed to be killed, family of Ashiq Hussain who was tortured to death in custody in 1993, and Javaid’s family. Manzoor’s family said that it was a violation of Article 14 of the Constitution. However, there has been no response to that by the Union of India in the court since, and there has been no hearing.

The army has had a few prosecutions. These include the death of two men, Faisal Yusuf Bhat and Mehrajuddin Dar, in November, 2014, who died after personnel fired at their car. The army admitted that it was “a mistake”. Another includes the announcement by the army last November to try nine personnel of the 53 Rashtriya Rifles under military law for killings.

The AFSPA and the excesses committed under it also violate the right to truth, to remedy, to reparation. It is the duty of the state to provide justice under international human rights standards, including Article 8 of the Universal Declaration of Human Rights, The Basic Principles and Guideline on the Right to a Remedy and Reparation or Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, and Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), to which India is a state party.

“The definitions of grievous hurt are not in line with the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which India signed in 1997 but has yet to ratify. Proposals to further codify the crime of torture in a Prevention of Torture Bill, 2010, which lapsed in 2014, in any case fell short of the standard required under the Convention,” reads the report.

The JS Verma committee, after the December 16 rape case, too, recommended that AFSPA should be amended to bring sexual violence against women by members of the armed forces or uniformed personnel under criminal law.

The report also speaks of the violence carried out by the state police. Like in the case of Sheila, who despite being tortured and sexually assaulted by a deputy superintendent of police, could not register a complaint with the police. She was 15 or 16 years, and was picked up by the police to investigate the death of a suspected militant, who was her neighbour. Police constables beat her with the leg of a chair, which had nails attached to it, and she was on the first day of her period.

“The DSP (came in and) beat me with the leg of the chair with the nails still in it -- on my legs, on my stomach and my vaginal parts. Then I fell unconscious. The nails went inside my legs and made them swell,” she says. After she tried to register a complaint, the Inspector General came to her house with a cheque of Rs 2 lakh, and jobs for her brother. Sheila refused and registered a complaint with the State Human Rights Commission. Nothing happened after that.

In 2012, the state government drafted a Bill to establish Police Complaints Authorities at the state and district level. The Bill, which suffers from serious flaws, has not yet been presented before the state legislative assembly.

The report recommends, apart from the repeal of AFSPA, that the jurisdiction of military courts be restrained to those of strictly military nature, apart from removing all requirements of sanction for prosecuting army personnel for excesses carried on innocent civilians. They further recommend that investigation proceedings must be made public, apart from defining all forms of torture, forced disappearances and crime as per international law. Cases of past inquiry findings of violations must be made public, whereas compensation mechanism be well-defined. Security forces against whom complaints are registered be withdrawn, and personnel be trained in international human rights standards.

Unexplained Deaths: ‘Fake Encounters’ in Manipur

An extraordinary admission highlights a serious problem

By Sanhita Ambast

Thounaojam Herojit Singh – a police officer from Manipur – made an extraordinary statement to the media recently. He said that in 2009 he was ordered by his superiors to kill Sanjit Meitei, an unarmed man suspected of being a “militant.” Meitei and a pregnant woman, Thokchom Rabina, were both killed in the incident, one of many such unlawful killings in Manipur over the past decades.

These killings provoked great outrage at the time they happened, and are currently the subject of a formal investigation. However, Herojit Singh’s statements point to a much larger problem: the lack of accountability for the large numbers of “fake encounter” deaths in Manipur.

The nomenclature of “fake encounters” serves to mask what these deaths really are: extra-judicial killings by security forces – police, paramilitary and the army, in the name of “national security,” resulting in the deaths of people suspected of being “militants,” “terrorists,” other criminal offenders, or for political or other reasons.

Statistics regarding numbers of such killings are hard to come by. The Indian Ministry of Home Affairs claims in its most recent report on Northeast India that there sere 3867 incidents in Manipur between 2007 and 2015, in which 1205 “extremists” and 486 “civilians” were killed. According to the National Crime Records Bureau (NCRB), there were no encounter deaths in India in 2014 and only two in 2013. In a judgment on this issue – the 2014 PUCL v State of Maharashtra case – even the Supreme Court raised doubts about the accuracy of the NCRB figures. A petition currently pending in the Supreme Court alleges that over 1500 civilians have been extrajudicially killed in Manipur since 1979. And these are just the cases that were either reported or documented. The full number remains unknown.

Under international law, the use of force must be necessary and proportionate, and lethal force may only be used where strictly unavoidable in order to protect life. It is plausible that some of these deaths may have been a result of a lawful and proportionate use of force, but it is clear that many were unlawful. In any event, the lack of effective and impartial investigations or prosecutions means that there is no way to know. Civil society groups and human rights defenders have called for accountability. The Indian Supreme Court has repeatedly emphasized the need to investigate what it called “unexplained deaths,” and reinforced guidelines that should be followed by the police and other agencies involved in investigating these deaths.

In Manipur, however, these guidelines are rarely followed in practice. In several of the cases that form part of the petition pending before the Supreme Court, for example, no First Information Reports (the start of an investigation) were filed. In cases where investigations are conducted, they are either inadequate or the final reports are kept confidential. For example, the report of the judicial enquiry into the alleged rape and murder of Thangjam Manorama by the Assam Rifles was completed in 2004 but was only made public in 2014.

Manipur has been the site of an armed insurgency for decades, and has witnessed deaths, injuries and threats resulting from the often unlawful conduct of armed groups. The existence of the large numbers of “fake encounters” in Manipur is rooted in the implicit belief amongst state officials that such action is necessary to deal with the insurgency. This contributes to the lack of accountability, but the blame also lies with the existing legal structure.

For one thing, India’s victim and witness protection system is not adequately developed. Existing provisions are piecemeal and rely heavily on police to perform the protection function. This is problematic where the suspected perpetrators themselves are the police. Where the investigation proceeds and there is enough material to prosecute, the law presents another roadblock. Under several provisions of Indian law, governmental sanction or permission is required before a case can even be registered against security forces. For example, section 6 of the Armed Forces Special Powers Act requires permission from the state or central government before any prosecution can be instituted against armed forces personnel acting under the act. Section 197 of the Code of Criminal Procedure contains an equivalent provision with respect to the police. In a best-case scenario, waiting for government permission to prosecute delays the trial. In a worst-case scenario – one that is far more common – this permission never arrives. Laws like the Disturbed Areas Act and Armed Forces Special Powers Act entrench this culture of impunity.

“Fake encounters” by their very nature violate the right to life, prohibitions against torture and other ill-treatment, and, where they serve as a substitute for arrest and prosecution, the right to fair trial. The lack of any investigation or prosecution of those responsible breaches the principle of accountability and frustrates the rights of victims to an effective remedy.

In his 2012 report on India, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions noted the widespread use of “fake encounters” by security forces and made a series of recommendations to the government. His 2015 follow-up report noted that not one recommendation was fully implemented. India has an obligation under international human rights law, its Constitution, and the directions of the Supreme Court to end this practice and, at the very least, thoroughly and impartially investigate such cases and prosecute those responsible.

The nature of Herojit Singh’s statements as well as media interest in the cases he was a part of has resulted in the central government committing to take action on this case. However, this case is the tip of the iceberg insofar as extrajudicial executions in Manipur are concerned. The Indian government must put a stop to the impunity of “fake encounters” and provide accountability for extrajudicial killings.

The Supreme Court Speaks, Ending Impunity For The Armed Forces

by S G Vombatkere

In a historic ruling, Justice Madan B. Lokur and Justice U.U.Lalit of the Hon’ble Supreme Court have spoken out in favour of democracy. The judgment came on a plea by hundreds of families in the north-eastern State of Manipur for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters involving the Army and the police.

In particular, by saying: “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both…This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties”, the Hon’ble Supreme Court took a step in the direction of equality before the law, and reaffirmed Article 21 that no person shall be deprived of his life or personal liberty except according to procedure established by law.

The judgment has been welcomed especially among people in the “disturbed areas” of our northeastern states and Kashmir, and is surely in partial vindication of Irom Sharmila’s principled, 12-years-long on-going fast demanding repeal of AFSPA.

This writer, with his Army background, is the first to point out that no soldier (the term refers to all ranks of the Armed Forces – Army, Navy and Air Force) will defend wrong doing of any sort, leave alone heinous crimes like murder and rape, by another soldier whether he is “on-duty” or “off-duty”. The reason is not merely that such should be the attitude of any good citizen, but because a known offender in the team is a threat to the coherence, man-to-man trust and fighting efficiency of the military team, and to the survival of the individual soldier in high-risk situations, at all levels from the section, platoon, company and battalion upto the highest formations.

The Hon’ble Supreme Court’s ruling will not find dissonance within the Armed Forces (hereinafter Army, for short). However, without in any manner questioning the wholly welcome order of the Hon’ble Supreme Court and with all due respect and humility, this writer would like to make some points on the larger issue of AFSPA and deployment of the Army on internal security (IS) duties.

Disempowerment of the soldier

The plea by the families of Manipur concerns alleged fake encounters involving both the Army and the police. While a faked encounter is reprehensible, a murder is a murder and a rape is a rape, it is necessary to examine the differences between the Army soldier and the armed policeman, and see why the Army and the AFSPA take a beating.

Under Article 246 of the Constitution, Parliament makes laws concerning the deployment of the Armed Forces “in aid of the civil power”, prescribing the powers, jurisdiction, privileges and liabilities of soldiers during deployment. The Armed Forces (Special Powers) Act, 1958 (AFSPA) is one such law. Others are, the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950, and associated Rules and Regulations, to administer military law to all ranks of the three Armed Forces.

These laws abrogate a soldier’s constitutional rights under Art.19(1)(a), (b) and (c), of freedom of speech and expression to communicate with the media, freedom of assembly, or the right to form or be members of associations or unions for collective bargaining. Besides this, the Army Act (AA, for short) and the Acts for the Navy and Air Force are strict by any standards, and in fact their “excessive” strictness has been commented upon in legal circles. Thus, because of the nature of duties performed by them and the strict laws in force for maintenance of strict discipline among them, soldiers are by law, uniquely disempowered citizens. This is not the case with members of the bureaucracy, state policemen or armed policemen (CAPFs), on whom restrictions by law and administrative rules are far less stringent. This (necessary) disempowerment is a stumbling block for the Army when called in aid of the civil power. The reasons are discussed hereunder.

Government can function in the interest of people when there is peace and order in society, functionaries in power use people-oriented politics, and the rule of law prevails among all sections of society. Providing security and public order by fair and just enforcement of extant laws, and maintenance of supplies and services essential to the public, is the primary task of governance by the civil administration, which is the combination of the powers, roles and functions of people’s elected representatives, bureaucrats and integral police forces.

Disturbance of law and order usually happens because of conflict of interests within civil society, caused by inappropriate laws and/or unfair policies and/or poor or ill-motivated implementation – in short, mal-administration or mis-governance. When law and order, and peace in society is disturbed and is beyond political resolution, governance calls for using the force of the state and/or central police (CAPFs). When law and order cannot be restored despite deploying state and central police or because of their misuse, it can only be restored by deployment of the Armed Forces (Army) on IS duties in aid of the civil power as permitted by the Constitution. Government has no other option; the Army is its instrument of last resort.

When government calls the army for IS duties as for example, to quell rioting, the army may confront a violent mob. The army officer commanding the sub-unit is obliged to take the written permission of a magistrate who accompanies the sub-unit, before opening fire if the situation so warrants according to the discretion of the magistrate, because the soldier cannot use firearms against civilians without permission from civil authority. But when law and order breaks down in a large area, government cannot provide magistrates to day-and-night accompany every army sub-unit, and it therefore empowers the Army to handle such situations by means of AFSPA.

The AFSPA

The AFSPA is an enabling legislation. It legitimises deployment of the Army in large areas which the civil administration may notify as “disturbed areas”. AFSPA is applicable only to the Armed Forces (under the Ministry of Defence), and not to CAPFs or state police forces under central or state Ministries of Home Affairs respectively. The Constitution of India makes a distinction between “the members of the Armed Forces” (Art.33(a)) meaning soldiers, and “members of the Forces charged with the maintenance of public order” (Art.33(b)) meaning police personnel. Thus the term “Armed Forces” (proper noun) should not be applied to just any body of uniformed persons bearing firearms such as police or CAPFs who may be authorized and trained to use firearms, but only to the soldiers of India’s military. But, often unable to distinguish between the Army and civilian forces that bear arms, media persons often use the catch-all term “security forces” or “armed forces” (common noun) to include the military, CAPFs and state police.

The confusion is exacerbated because CAPFs and police forces wear camouflage uniforms that are virtually indistinguishable from Army uniforms. In tense situations where a journalist takes risks, it can be risky for him/her, and even more so for any member of the public, to ask an armed man to which force he belongs. Thus often enough, the media and the public straightaway blame the Army for incidents involving CAPFs or police, because of AFSPA being in force. Even if subsequent inquiry by civilian authority in a particular case finds that the Army was not involved, the negative “Army-AFSPA” image persists in public opinion.

According to AA Sec.69 “Civil offences” and AA Sec.70 “Civil offence not triable by court-martial” read together, a soldier who commits rape, murder or culpable homicide not amounting to murder of a civilian, will not be tried by a court-martial unless he is on active service, or at any place outside India, or at a frontier post. In any case, AFSPA being in force is not the cause for his committing crime, and cannot be viewed as a facilitator for crime. But repealing AFSPA would cause AA Sec.70 to become inapplicable, making the soldier liable for trial by criminal law – and this is really the cause for the public demand to repeal AFSPA.

AFSPA Sec.3 confers upon a state or central government, powers to declare the whole or some part of the state as a “disturbed area” … “in such a disturbed or dangerous condition that the use of Armed Forces in aid of the civil power is necessary”, by issuing a notification to that effect. The assessment of the condition of society and the discretion to notify it as “disturbed” is the sole prerogative of government. The Armed Forces have no role in this whatsoever. AFSPA Sec.4 confers special powers upon members of the Armed Forces in the notified disturbed areas to arrest, enter and search, or open fire.

Demand for repeal of AFSPA

Notwithstanding the constitutionally permissible last-resort necessity of using military force for internal security when the political-administrative tools of governance fail, there is little justification for an elected government to use even police force for day-to-day governance continuously over decades.

People in our northeastern states and Kashmir, for decades trapped in the crossfire between government police and military forces on the one hand, and the bullets, grenades and IEDs of militants on the other, want nothing more than peace and democratic freedoms. Irom Sharmila, a national icon of courageous non-violence, who has been on fast for 12 long years demanding repeal of AFSPA, stated it squarely and unequivocally in 2013: “I am against a government that uses violence as a means to govern”. [Jiby Kattakayam; “I am against a government that uses violence to govern”; The Hindu, March 5, 2013].

She goes further to say that “the government and the army are colluding to cheat the people” . Her stating that the people are being cheated of peace, social order and meaningful development is understandable and correct. But her accusation of army’s colluding with government, suggesting that the army has an institutional interest or stake in IS deployment, is unfounded. It bears repetition that the army comes out of barracks at the specific call of government and not of its own accord. Therefore, “cheat the people” refers to government cheating the people through abject failure of the politics of development, and monumental political-bureaucratic corruption of ideology and principles. Decades-long continuous violence through the instrumentality of police and military for governance is antithetical to peace and social order essential for development of the sort that people crave for and need. This legitimate craving of the people is reflected in their demand for repeal of AFSPA.

Continuous use of AFSPA

Hearing several petitions challenging the constitutional validity of AFSPA, the Supreme Court ruled in 1997 [Naga People’s Movement of Human Rights v Union of India [1997] ICHRL 117 (27.11.1997)] that the powers given to the army by AFSPA were not arbitrary or unreasonable and did not violate constitutional provisions. However, the Supreme Court went further to rule that (#) declaration of an area as disturbed should be reviewed every six months, (#) central government sanction or refusal to prosecute army personnel should be accompanied by reasons in writing, and (#) army personnel operating under AFSPA would do so under legally binding safeguards or guidelines in the form of a comprehensive list of DOs and DONTs before, during and after operations, in dealing with civil courts, and when providing aid to civil authority. [Note below].

The restriction that government should review the declaration every six months is cosmetic, since it merely calls for bi-annual bureaucratic paperwork. It has not prevented governments from maintaining entire states as disturbed areas continuously for decades. To limit army deployment on IS duties, the continuity of AFSPA needs to be broken. This writer suggests amendment by inserting a final sentence in AFSPA Sec.3 as follows: “Provided that the Governor of the State or the Administrator of the Union Territory or the Central government shall not declare an area as disturbed for more than an aggregate of 90 days in any calendar year.” The period (of 90 days or less or more) suggested can be finalized after wide public discussion and cross-party consultation.

End note

The use of the military in aid of the civil power is an option that no government, howsoever liberal, will discard especially since it has constitutional sanction. The military on IS duties is to civil society what an ICU is to a critically ill person. A patient cannot remain for years in a hospital ICU, because he/she would be effectively dead. The patient needs treatment for the disease and right nutrition to regain normal health. Likewise, the military remaining deployed on IS duties over decades makes civic life in society effectively dead, without assuring peace or security. India’s societies need the “treatment” of honest political effort by transparent dialogue and engagement with people, and “nutrition” of good governance for their growth. Society does not need the army, except to guard the country’s borders against external aggression and protect its sovereignty and territorial integrity.

While no government may ever propose to Parliament to repeal AFSPA, it would certainly be open to amending it. An amendment to cap the applicability of AFSPA to a total of say, 90 days in any calendar year, will allow governments to retain their (albeit undoubtedly coercive but unavoidable) option of military deployment when civil administration fails to maintain law and order. This will make governments accountable to the people, to rediscover ways of providing a deeply troubled society with honest politics and good governance. It will also enable the Army, one-third of which is engaged in IS duties, to focus more on securing India’s borders.

Major General S.G. Vombatkere, VSM, retired in 1996 as Additional DG Discipline & Vigilance in Army HQ AG’s Branch. He is a member of the National Alliance of People’s Movements (NAPM) and People’s Union for Civil Liberties (PUCL). With over 490 published papers in national and international journals and seminars, his current area of interest is strategic and development-related issues. E-mail:

Note. List of DOs & DONTs as directed by the Supreme Court in NPMHR v. India in 1997, that are legally binding

DOs

1. Action before Operation

(a) Act only in the area declared ‘Disturbed Area’ under Section 3 of the Act

(b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO

(c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities

(d) As far as possible coopt representative of local civil administration during the raid.

2. Action during Operation

(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention of law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning

(b) Arrest only those who have committed cognizable offence or who are about to Commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence

(c) Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities

(d) Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only

3. Action after Operation

(a) After arrest prepare a list of the persons so arrested

(b) Hand over the arrested persons to the nearest police station with least possible delay

(d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case

(e) After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession.

(f) All such arms, ammunition, stores etc. should be handed over to the police station along with the seizure memo

(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police

(h) Make record of the area where operation is launched having the date and time and the persons participating in such raid

(i) Make a record of the commander and other officers/JCOs/NCOs forming part of such force

(k) Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death

4. Dealing with civil court

(a) Directions of the High Court/Supreme Court should be promptly attended to

(b) Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid

(d) Maintain detailed record of the entire operation correctly and explicitly.

DONTs

1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station

2. Do not use any force after having arrested a person except when he is trying to escape

3. Do not use third-degree methods to extract information or to a extract confession or other involvement in unlawful activities

4. After arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force

5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities

6. Do not tamper with official records

7. The armed forces shall not take back a person after he is handed over to civil police.
List of DOs and DONTs while providing aid to civil authority

DOs

1. Act in closest possible communication with civil authorities throughout

2. Maintain inter-communication if possible by telephone/radio

3. Get the permission/requisition from the Magistrate when present

4. Use little force and do as little injury to person and property as may be consistent with attainment of objective in view

5. In case you decide to open fire

(a) Give warning in local language that fire will be effective

(b) Attract attention before firing by bugle or other means

(d) Control fire by issuing personal orders

(e) Note number of rounds fired

(f) Aim at the front of crowd actually rioting or inciting to riot or at conspicuous ringleaders, i.e., do not fire into the thick of the crowd at the back

(g) Aim low and shoot for effect

(h) Keep Light Machine Gun and Medium Gun in reserve

(i) Cease firing immediately once the object has been attained

(j) Take immediate steps to secure wounded

6. Maintain cordial relations with civilian authorities and paramilitary forces

7. Ensure high standard of discipline

DONTs

8. Do not use excessive force

9. Do not get involved in hand-to-hand struggle with the mob

10. Do not ill-treat anyone, in particular, women and children

11. No harassment of civilians

12. No torture

13. No communal bias while dealing with civilians

14. No meddling in civilian administration affairs

15. No Military disgrace by loss/surrender of weapons

16. Do not accept presents, donations and rewards

17. Avoid indiscriminate firing.

Innocents in Jail for Years

“Innocent until proven guilty” is a basic principle of Indian criminal law.

Did you know that 2.5 lakh people in India are currently in jail without having been proven guilty?

The government admits that many of them are poor people accused of minor offences, locked away for long periods because they don’t know their rights and cannot access legal aid.

I was one among those 2.5 lakh.

It was the 24th of December 2012 when I was arrested and jailed.

I am Chetan Mahajan, currently President of HCL Learning.

In 2012, I was 42 years old, with two MBAs—one from India and one from abroad, a big house, a good salary, a loving wife and two kids.

The company, that had employed me 3 months earlier, was accused of fraud. Being the senior-most representative of the company in the city at that point, I was the one arrested, taken into custody and locked up.

I was put into a large room around 70 feet long and 20 feet wide, with two dim, yellow bulbs and 25 other men. There were a few small windows with thick iron bars, and thin ropes across the wall with clothes hanging from them.

I spent 29 days in jail, 30 days in captivity.

I lived with cold food, constant fear of torture, mistreatment and violence and regular demands for money from other prisoners and jail officials.

Those 29 days changed my life completely.

I made new friends within the prison. Many of them had not yet been convicted. Their trial was ongoing and they did not know when they would be able to come out of those dingy dark cells and stand under the blue sky.

I finally came out in 30 days on bail, and was soon acquitted of all charges.

Financial and emotional support from friends and family helped me live through those days with some hope.

Today, I wonder if it wasn’t for the support I had, would my fate be different. This is the case for many undertrials – faceless and forgotten, without any support to fall back on.

Just like me, many of these men are probably innocent. But they are assumed guilty, and punished.

Punished to remain confined for excessively long periods because they are powerless, moneyless, forgotten faces for whom the Indian criminal justice system does not seem to care. Some of them may remain in jail beyond the maximum sentence they would have faced if convicted.

Under Indian law, undertrials can be considered for release on personal bond if they have already been in prison for over half the term they would have faced if convicted.

This is laid down in Section 436A of the Criminal Procedure Code (CrPC).

But there are problems with the records and information maintained in many of our prisons about undertrial prisoners which would help identify people eligible for release under this law.

I did not know if any of those men I shared my time with were guilty or innocent. All I knew was that many of their names and identities were lost in piles of mismanaged records.

This could happen to any of us. It happened to me, and it could happen to you.

Let us break the silence. Join me, and Amnesty International India in taking this injustice personally and changing this system.

Please urge the Karnataka Home Minister to identify and release undertrial prisoners eligible under Section 436A of the CrPC. In doing so:

1. The government should maintain accurate records of undertrial prisoners which include:

Name of Prisoner, Offence, Date of admission in Jail, the maximum sentence they would face if convicted, and the date on which they would finish half this period.

2. This information must be made available to the undertrial at the time of entry into jail.

The effect of your action will be far-reaching. It can help change the future of victims of a callous criminal justice system. They have rights too, and you can help defend them.

While I was fortunate to have privilege to fall back on, most undertrials don’t.

But they have you.

Yours Sincerely,

Chetan Mahajan

An Open Letter to Honourable Chief Justice of India

To,

Honourable Chief Justice of India ,

Supreme Court of India ,

New Delhi.

Kind Attn: Justice Shri. T.S.Thakur

Dear Sir,

We are writing this letter to you with my faith in judiciary and deep pain in my heart. The pain is there because as a citizen of this democracy, we would like to have every right to be heard and to raise our voice.

By this public letter, we want to raise our voice before you (before the highest institution of law in my country) as the issue about which we are requesting, is associated with the interest of public by and large and thus your intervention will be helpful in protection of law as well as in establishing and maintaining our faith in constitution and its values.

We are talking about Irom Sharmila, a lady who is domicile of Manipur and who is observing a hunger protest since last 16 years (since the year 2000). The objective is to register the grievance against human rights violations in Manipur and the demand is to repeal the AFSPA (Armed forces special power act).

The lady has every right to register and to protest as she is associated with the people of Manipur who faced the ill effects of this draconian law. However, through this letter, we would like to make it clear that like in every other such protests, government always try to come with solution including visits, negotiation, reviews, public debates and hearings, referendum etc; however in this case/demand, no such steps have been taken from the side of government yet.

It has also to be noted that some human rights activists have submitted petitions before NHRC (National Human Rights Commission) , but NHRC disposed off almost all such petitions and replies that the matter is political.

We, the citizens of India, who understand the issue, may be divided in two parts , one is the indians who support AFSPA, another is the indians who oppose AFSPA. But still, both of these categories supports Irom Sharmila on democratic and humanitarian grounds and criticize government/ courts/ NHRC because no concrete steps have been taken by such responsible agencies/institutions.

I believe that the ongoing fast of Irom Sharmila is the symbol of her faith in democratic values and non violence. The fact that the Government has not taken any positive steps also hurts us and our faith in democracy.

We would like to bring to your kind attention these facts:

· She is a human rights activist and has been fighting not for the cause of one individual or herself, but for the society as a whole . The charge of “ attempt to suicide ” is disgraceful. · She is charged under “ attempt to suicide ” and facing 'arrest' for this attempt. Every time she move to court and repeat her statement for not to break her fast and her arrest extended. Is it right to provide order of 'arrest' for the same charge repeatedly?

· Sharmila's fight is based on non violence. She talks about peace, love and non violence in her each message. But the Government has ignored her. In these 11 years, no parliamentary delegation or all-party representative group was ever sent to Manipur. There hasn't even been any continuous approach of communication.

· NHRC has also not arranged any official visit of members of this institution to meet Irom Sharmila and people of Manipur.

· The meeting procedure is also very difficult. It is, unlike, as in all other cases of suicide attempt or as in case of an ordinary prisoner. She has been charged under the attempt to suicide but doesn't forced solitary confinement increase the chances of suicide?

· She is not allowed to meet the public . When other prisoners charged with the same or more serious charge are allowed, then why not her? It violates the Right to equality before law. is it not violating Article 19 under which she has right to freedom of speech, peaceful assembly, move freely.

· The suppression of a non-violent voice may discourage people from using this method of protest and will encourage violent ways.

· It has been seen that government has a practice to make efforts for negotiation and to take action and to initiate a process when any such fast has been organized in New Delhi in past, however government has not approached to Irom in spite of her 11 years long fast. Is it not the violation of right where it is told that 'The state shall not discriminate against any citizen on the basis of caste, religion, race , place of birth etc'

· Many national/international agencies, eminent persons like Nobel peace prize winners, Padma awardees, Magsaysay awardees, many social activists and intellectuals and general public have been raising this issue. In view of this suppression by the Government, and the necessity to protect the values of humanity and democracy, I request here to you (Chief Justice, Supreme Court of India) for protection of human rights.

The issue has not only appealed to the general public but has become known on an international scale as well. I request you

· To issue notice to the Government of India on the issue

· To constitute a committee of retired/sitting judge, human rights activists, parliamentrians to submit reports on this issue and review condition

· To make Irom Sharmila free

· To advise NHRC to arrange an official visit of members of NHRC at Manipur to meet Irom Sharmila

We hope that our faith in this institution will be maintained by the actions of the institution in favor of protection of human rights in this case.

Your’s sincerely,

Nagaraja.M.R.

Repeal Armed Forces Special Powers Act

Editorial : REPEAL ARMED FORCES SPECIAL POWERS ACT in Manipur – An Appeal to H.E.Honourable President of India

Your Excellency,

I am writing to express solidarity to the sixteen - year-long fast of Ms. Irom Sharmila Chanu, the Iron Lady of Manipur and her cause.

I am informed that Sharmila has started the fast on 5 November 2000, protesting against the violence committed by state and non-state actors in Manipur. I am aware that the protest also demands an immediate end of impunity in the state, for which the withdrawal of the martial law, the Armed Forces (Special Powers) Act, 1958 (AFSPA), from Manipur is a prerequisite.

I am worried about the sufferings of the ordinary people of Manipur at the hands of the underground militant organisations as well as the state agencies.

I am aware that the AFSPA is enforced in Manipur to support government actions in the state in countering secessionist activities and underground militant acts. Yet, it is now certain that the AFSPA has not helped in countering militancy in Manipur, but in fact has enraged it.

I am informed that the climate of impunity is one of the reasons why conflict continues in Manipur.

The AFSPA, as far I understand is an addition to the overall impunity framework that has contributed to the deterioration of the state of rule of law in Manipur. My opinion is also shared by national bodies including Justice Jeevan Reddy Committee; the Second Administrative Reforms Commission; and the Prime Minister's Working Group on Confidence-Building Measures in Jammu and Kashmir. I am informed that these eminent bodies have recommended the government to withdraw AFSPA from operation since they are of the informed opinion that a law like the AFSPA will only facilitate violence and not prevent it.

I am convinced that under the current circumstances in Manipur the withdrawal of AFSPA will not in itself solve the Manipur crisis.

Yet, it could be a bold and open step by the government to show that it is determined to find solution to an armed conflict that has haunted an entire generation in the state. The withdrawal of AFSPA from Manipur will be recognition to the sufferings of the state's people and an expression of respect and acknowledgment of their rights.

Additionally, withdrawing AFSPA from Manipur will be a catalyst to end the climate of impunity in the state. Jai Hind. Vande Mataram.

Your’s sincerely ,

Nagaraj.M.R.

AFSPA Must Go--The Draconian Law Completes 55 Years

On 4th of March 2009, when it was touching noon,(around 11:50 am), Mohd Azad Khan was reading a newspaper in the courtyard of his house along with one of his neighbouring friends, in Phoubakachao Makha Leikai Yumnan village of west Imphal district, Manipur. Azad, a barely 12 year old boy and a student of class seventh at the local high school, was sitting with his friend Kiyam Anad Singh (14 years), when some personnel of the Manipur Police Commandos rushed in to his house. One of the personnel dragged Azad by both of his hands and started beating him severly. Meanwhile, the commandos asked Kiyam the reason for keeping company with Azad. Didn’t he not know, Azad was an activist of an underground organisation. The commandos showed him a gun saying that it belonged to Azad and slapped him on his face. Subsequently, Azad was dragged out some 70 metres towards the north.
While Azad was being dragged out of the courtyard, the commandos fired some rounds in the air and at the same time other commandos prevented his mother and family from following them, pointing guns and forcing them to go inside their house. After dragging Azad, he was pushed down on the paddy field and shot dead. Almost immediately, the commandos threw a pistol near the dead body. The whole incident was witnessed by his family members as well as neighbouring villagers, as all of this happened in broad daylight. After the killing, the dead body was taken away by the raiding commandos in their vehicles. The villagers tried following the police commandos but were stopped.

Azad is not alone

Believe me, this is not the script of a horror/action film but a real life story. What is most disturbing is that the case of Azad is only one amongst the hundreds killed in cold blood. Over the years, cold blooded murder, or ‘encounter’, as they call it, has become a routine of Manipur. Like Azad, you would be reading the newspaper today and be a news item in tomorrow’s newspaper, which too would be limited to those published in Manipur and neighbouring areas. In the same year, on 23rd July, Chongkham Sanjit (27 years old), was killed in cold blood in broad daylight, barely 500 metres from the state assembly. But it was only when the newsweekly Tehelka, published the photographs of the episode by an anonymous photographer, that news of Sanjit’s cold blooded murder reached us.
Cold blooded killings, and, in particular, fake encounters by the Manipur Police Commandos (MPC) have become a day-to-day affair in the life of Manipuris. In 2008, there were 27 recorded cases of torture and killings by the MPC. In several cases, ordinary civilians carrying money and valuables have been robbed and sometimes killed. In few of the cases, official ‘action’ has been taken but for the most part, their extra-judicial activities goes scot free. In fact, it happens the other way around. Take the case of Azad. Her mother Garamjan Bibi deposed before an Independent People’s Tribunal headed by Justice (retired) K K Usha of Kerala High Court, during 11-13 December 2009. “When I tried to bring out the truth, filling a case with police, the police commandos, warned me to withdraw the case if I wanted to save my life.” It must be mentioned, in all of the cases, Commandos repeatedly threatened the petitioners to withdraw the cases. What is more glaring is that it is not just happening in Manipur only, but different parts of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland, Tripura and Kashmir as well.

The root Cause

Why is it happening so? What makes these forces so powerful, or rather, so brutal? The answer is, Arms Forces Special Powers Act (AFSPA)-1958, a draconian law in the name of maintaining law and order in the so-called disturbed areas. According to the Act, in an area that is declared as ‘disturbed’, even a non- commissioned officer of the armed forces has powers to: "Fire upon or otherwise use force, even to the extent of causing death, against any person who is acting in contravention of any law", against "assembly of five or more persons" or possession of deadly weapons. To arrest without a warrant and with the use of "necessary" force on anyone who has committed certain offenses or is suspected of having done so and to enter and search any premise at any time in order to make such arrests. It gives army officers legal protection for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under the law.
The act is not only problematic because of violation of rights that occur in ‘disturbed areas’. But it is also problematic because once the AFSPA is in force – as it is in all Northeast Indian states – the government through a simple notification can declare any area, the entire state, or parts of the state, as ‘disturbed’ without any public debate. The deployment of the armed forces, the suspension of fundamental freedoms and the ‘special powers’ of the armed forces can immediately come into force. An area can remain ‘disturbed’ for years with no end. The act legitimizes a localized form of indefinite emergency rule in the areas. Ironically, the Act is nothing but a replica of the 1942 Ordinance framed by the colonial powers to control the wave of Indian freedom struggle.

AFSPA must go

It has been 53 years, since the act came into being. And over the years, it has become an established fact that due to the draconian law, hundreds of ordinary citizens of the so-called disturbed states like Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Kashmir have lost their lives. Extra-judicial killings, illegal detention, rape, torture has become a routine affair for the people—men, women, old and child all alike, of these ‘disturbed areas’. The act has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness by the one who is supposed to protect their life, liberty and dignity. Even the Justice Reddy Committee, appointed by Government to study the issue during UPA-I admits it, "the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness." And without an iota of doubt, the impacts of the draconian laws like AFSPA are far reaching and disastrous. These are tools of the Indian government, through which it is alienating and pushing towards the wall its ‘own-people’. Government after government, no matter which party is at the helm of affairs, is not worried about these people, nor ready to scrap this tool of oppression.
This 22nd May, when the draconian law is completing its 53th year of enactment and going to enter the 54th, it is the duty of us, the people from the so-called mainland India to stand up by the side of (or with) the oppressed and demand to scrap the AFSPA. After all, injustice anywhere is everywhere. It is time to join Irom Chanu Sharmila, who is on her fast unto death, now going to enter in eleventh year, with the firm resolution to see the Act meet its end and an end to the injustice (mostly unaccounted) by the armed forces on the innocent civilians. Today when hundreds and thousands of people from Kashmir to Manipur are demanding to scrap the AFSPA, let us come together and join hands, stand in solidarity with the people of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Kashmir and say : AFSPA must go now and by now. Enough is enough.

‘Fifteen Years Of Hunger Strike’ And ‘57 Years Of Bloody AFSPA’

By Lalit Shukla

North East India comprises seven sister states (Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura) and Sikkim and a narrow corridor between Bhutan and Bangladesh links North Eastern part to mainland India. During British colonial rule, it was treated separately from British India. After independence of India from British colonial rule, north eastern region was included in India in very undemocratic way and apparently Indian government continued colonial treatment of this region and never sincerely responded to the problems faced by its habitants. Most of the tribal population of India lives in the North East region. There are conflicts due to unequal power equations among different cultural and ethnic communities. So far Indian government is trying to solve political problem of socio-economic conflict by colonial oppressive military rule and continuously denying people’s right of self-determination.Much of the bloodshed and genocide could have been avoided if voices of habitant people have been listen by ruling class of India. Indian state looks at this region for its strategic importance and for its petroleum and tea not as part of country. Much of the North East region is under Armed Force Special Power Act (AFSPA) since 1958 to combat insurgency and militancy.

AFSPA empowers armed forces to use lethal forces against any person who is acting in contravention of any law or order, destroy shelters or training camps from which armed attacks are likely to made, arrest any person without warrant on suspense who has committed or about to commit a cognizable crime, enter and search anywhere without warrant, stop, search and seize any vehicle on suspense on acting personnel’s opinion. The law gives guaranty that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.AFSPA violates the fundamental constitutional rights of right to life, liberty, freedom of speech and expression, peaceful assembly, free movement, practice of any profession, and protection against arbitrary arrest and freedom of religion, as enshrined in Articles 21, 14, 19, 22 and 25 of the Constitution.

Autocracies under AFSPA

On July 11, 1987Assam Rifles launched a counter insurgency Operation Blue bird under the command of General PL Kukrety, General Officer in Command (GOC), Manipur Sector. During the course of operation gross human rights violations were committed.The Naga People Movement for Human Rights filed Court case against the 21st Assam Files in Guwahati High Court on eight specific human rights violations (a) deaths of 27 persons during Operation Bluebird (b) rape and sexual harassment (c) torture of 300 persons (d) illegal arrests and detention (e) burning and dismantling of more than 100 homes (f) dismantling of schools and churches (g) looting of property (h) forced labour.The area surrounding the Oinam Hill village, around forty villages suffered the brunt of Operation Bluebird. The whole area were sealed off, movement both vehicular and human were restricted. Press were denied access. Public leaders were detained and tortured. Medical supply/services were cut off. Village schools were closed down. Village grounds became concentration camps. Churches became concentration camps. Every going out and coming in were vigilantly monitored even after the operation was officially over.

In 1988 for three consecutive days from 31st May- 2nd Junejawans of the 27 Assam rifles, who were on duty gang raped about 14 tribal women in Ujanmaidan, West Tripura. Many other autocracies under AFSPA in Tripura are documented here.

On September 14, 1991 Indian Army launched operation Rhinoagainst ULFA. Severe human right violations by Security forces have been well documented by Human Rights Organizations in India.

On November 2, 2000at around 3:20 pm personnel of the Assam Rifles shot dead 10 civilian in Malom, a town in the Imphal valley including one of a 62-year old woman, LeisangbamIbetomi, and 18-year old SinamChandramani, a 1988 National Child Bravery Award winner. They were waiting at bus stop. After firing, many people were dragged out of their house and severely beaten up by the personnel of the Paramilitary Force.

On July 11, 2004 at approximately 12:30 a.m. several 17th Battalion of Assam Rifles personnelpicked up32-year-oldThangiamManorama from her home and assaulted her two younger brothers and her elderly mother when they tried to stop them. Security personnel forced family to sign “No Claim Certificate” and gave arrest demo which stated Manorama was arrested on the suspicion that she had links with the underground People’s Liberation Army (PLA). Her partially clothed body with scratch marks from fingers all over her body, a deep gashing knife wound on her right thigh, signs of bruises on her breasts, deep cut marks on her inner thighs, and genitals, and several bullet wounds was found dumped on the side of a road later that day. Family refused to take her body demanding inquiry to probe murder. Assam Rifles claimed that she was shot while trying to escape. However, no blood was found near the body despite six bullet wounds. No soldier was identified as having tried to run or detain her. In protest, many women walked naked through Imphal to the Assam Rifles headquarters, shouting: "Indian Army, rape us too... We are all Manorama’s mothers." Till date nothing has been done to punish the people responsible for it.

In the writ petition filed in Supreme Court of India by Extra Judicial Execution Victim Families Association (EEVFAM) it is stated that during the period May, 1979to May, 2012, 1528 people were killed in Manipur in extra-judicialexecution. A memorandum prepared by 'CivilSociety Coalition on Human Rights in Manipur and the UN’ compiles the list of 1528 people allegedly killed unlawfully by the StatePolice or the security forces.The writ petitioners submitted compilation of cases in which 28 people out of 1528 were killed. In all those cases the judicial inquiry found that the victims werenot members of any insurgent or unlawful groupsand they were killed by thepolice or security forces in cold blood and stagemanaged encounters and the High Court simply directed for payment ofmonetary compensation to the kins of the victims instead of anyaccountability for cold blooded murder which perfectly suits the security forcesand they only get encouraged to carry out further killings with impunity.

There are severe human right violation and much more autocracies under AFSPA documented and undocumented. The region is kept virtually under martial law by Indian state. Foreigners are allowed to visit only restricted regions. Getting information and investigations of reports of human rights violations by the Indian Army and security forces is extremely difficult.

Irom Sharmila’s hunger strike

Irom Chanu Sharmila born on 14th March 1972 in Imphal, Manipur is youngest of nine siblings. From childhood, she has seen people suffering due autocracies under military occupation and heard stories of revolutionary war and lost in the conflict. To fight in solidarity with suffering people she started volunteeringas an intern for the “Independent People’s Inquiry Commission” at Human Rights Alert, helping victim of violence, and taking part in protest and peace march.

On 2nd November 2000, she was in Malom preparing for a peace rally when she came to know the news of 10 innocent people being gunned down by Assam Rifles personnel. She was deeply shocked after this massacre of innocent people. On 5th November, she started indefinite hunger strike to repeal AFSPA.

Three days after she stated her fast, she was arrested by police and charged with an "attempt to commit suicide" and was transferred to judicial custody later. To keep her alive while under arrest nasogastric intubation was forced on her on 21st November. She has been released and rearrested each year as she keeps continue her strike after every release.

Amnesty International has declared her a prisoner of conscience. Many human rights activists and organizations from all over the world have raised their voice in solidarity with Sharmila’sstruggle to repeal AFSPA.This heroic struggle of IromSharmila for demilitarization of the region is a great example of peaceful resistance in the world.

While state seems in no mood to repeal bloody AFSPA and continue oppression on people by killing dissident voices with impunity, people are bound to revolt. A continuous humiliation and torture of people living under AFSPA is just unbearable. This colonial rule and bloody thrust of power and resources must end. When peaceful protest in world’s so called largest democracy is treated as crime, when woman on hunger strike from 15 year summoned in court as a criminal, when women are raped and children are killed in the name of national security, where maximum justice leads to only some monetary compensation with complete impunity to murderers, this state need not to be exist. Where all door to justice are closed, when oppressor state only aim to exploit natural resources, human labour, and a dream to live peacefully, struggle against murderer state must live. There are no other options. State can’t rule people’s dream on the gun power. One day these struggling masses will unite and destroy this powerful oppressive state and liberate themselves to make a society based on equality, justice, and love.

Repeal AFSPA!

Down with state imperialism!

All power to struggling masses for justice!

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