The Armed Forces (Special Powers Act), 1958, and the Armed Forces (J&K) Special Powers Act, 1990, have been in force in parts of North East India since 1958 and in Jammu and Kashmir since 1990. These laws give sweeping powers to soldiers, including the powers to shoot to kill in certain situations and to arrest people without warrants. They also provide virtual immunity to soldiers from prosecution. They have helped in covering up grave human rights violations, such as extrajudicial executions, enforced disappearances, rapes and torture.
APSPA came into force in Tripura on February 16, 1997. The next year, the state was briefly brought under the Disturbed Areas Act. This was nearly two decades after insurgency actually started in Tripura around 1979, and since then several armed militias had carried out strikes. In 1988, then Prime Minister Rajiv Gandhi signed a peace accord with Tripura National Volunteers, but that only helped the Congress grab power for 10 years. Militancy, however, continued.
By 2006 Tripura started scripting a different story of development that is at the core of human security. I recall how village after village of former militants gave up arms to start the lucrative rubber cultivation introduced by the government. It made the state into one of India’s leading rubber producers. It was around the same time that the state had the country’s first all-women panchayat. Infant mortality rate came down, sex ratio went up, literacy was as high as 93% and school enrolment was at 100%. The Tripura model became a study in contrast.
The army was withdrawn and, in its place, the police led the counterinsurgency operations. This helped in gaining people’s confidence and strengthened the police stations in districts where outposts were otherwise nonexistent. Tripura hasn’t reported any major insurgency-related incident since 2009, and yet it took the proactive Chief Minister Manik Sarkar several years to withdraw the Act. Allegedly, the Ministry of Home Affairs advises many of these states to continue with AFSPA even though it is the state’s prerogative to do so. Four battalions of the Assam Rifles that function under the command control of the army will continue to be there, but one will have to wait and see how they operate without the immunity they are so used to.
Blot on democracy
With the possible exception of the Indian Army, most would agree that the two draconian laws, the Disturbed Areas Act and the Armed Forces (Special Powers) Act, under which the army operates in the North East and in Jammu and Kashmir, are a blot on our democracy.
The previous central government had clearly said that the Act should be repealed or be amended and be made more “humane”, though it did nothing about it. The present government agrees with the army that without AFSPA the armed forces cannot function and therefore it stays. Clearly, the army has prevailed in a country led by an elected civilian government. An emergency act framed 57 years ago continues to dominate several states of the country. This, despite the Indian government claiming in a report to the UN that “India does not face either international or non-international armed conflict situations”. Then what is the rationale behind continuing with these odious acts?
It is common knowledge that AFPSA is very discriminatory in nature. The majority of India knows that these parts are within India but somehow still hasn’t been able to accept them as Indians. To use the army, whose primary mission is to fight the enemy, against only these citizens deepens the perception that the rest of India sees them as foreigners. And to grant soldiers immunity to act against them heightens the sense of alienation and confirms the prejudice with which the Act is used.
An Indian soldier in a war against a foreign enemy is governed by the Geneva Conventions, and is accountable if he violates them. But under the Special Powers Act, unless his immunity is withdrawn – which it rarely is – he is not accountable even when he kills his own citizens who he is meant to defend under oath. Not surprising then that India has not signed Additional Protocol II to the Geneva Conventions, which covers actions taken by armed forces in internal armed conflicts.
Virtual power structure
India has also opposed the formation of the International Criminal Court and refused to sign its Statute apparently because the army and the paramilitary forces expressed fears about cases under AFSPA coming up.
But why have these laws been around for so long? According to The Human Security Report, India has had more intra-state conflicts since 1946 than any other country and endured 180 conflict years (the number of conflicts multiplied by the years they were active), the second highest after Myanmar. Is that the only reason why AFSPA continues? Perhaps the culture of impunity has more to do with its sustained use. In areas where elected governments have utterly failed, the army is the virtual power structure and they wouldn’t like to give up that role yet.
Even within the army many believe that most parts of the North East are now no longer “disturbed” or in other words the act needn’t be in place and the army can be withdrawn. But the men in charge disagree. Only last month I was in Manipur as part of a high-level committee of the National Security Council to assess the ground situation and recommend a way forward. In our meetings with the army they vehemently defended their presence, threatening as it were that the state would secede if the army were withdrawn. Everybody else including the chief minister thought otherwise; more and more areas they said could be de-notified or in other words be declared no more disturbed. We recommended using more Central Reserve Police Force and Border Security Force battalions, thus reducing the army, which would in turn naturally remove AFSPA.
Tripura followed this model: they increased the number of police stations and made the army redundant that ensured that eventually AFSPA could be withdrawn. This is a strategy that the other states could easily adopt to phase out the role of the army and thereby do away with one of the most abusive Acts in the country.
Kishalay Bhattacharjee is a senior journalist. His book Blood on My Hands: Eyewitness Accounts of Staged Encounters will be published by HarperCollins Publishers India in August.
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