It was the time when our nation had newly attained the status of an Independent Republic country. But barring the mainland India, the North-Eastern States were still experiencing great turmoil due to the insurgent forces working there. Violence was something which became a part and parcel of the life of people of the North Eastern States. State authorities were not able to cope up with the internal disturbance so prevalent in these states. The President of India then promulgated Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22nd, 1958. This Ordinance conferred special powers to the members of Armed forces deployed in the disturbed areas in state of Assam and Union Territory of Manipur. This Ordinance later was replaced by the Armed Forces Special Powers Bill. This Bill was further passed by both the Upper House and Lower House along with the consent of the President on September 11, 1958. Today it stands as a Statute with the name of THE ARMED FORCES (SPECIAL POWERS) ACT, 1958. Lately, this act has been further amended five times from 1960-1986 to extend its application in other North Eastern States like Assam, Manipur, Mizoram, Arunachal Pradesh, Meghalaya, Nagaland and Tripura. The act was later made applicable to the state of Jammu and Kashmir In September 1990 when the Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which was 'deemed to have come into force' retrospectively from July 5, 1990.
WHAT IS AFSPA?
AFSPA empowers the governor of the state, or the central government to declare any part of the state as a 'disturbed area', if in its opinion there exists a dangerous situation which might affect the public order and tranquillity in the said area which makes it necessary to deploy armed forces in the region and gives power to the personnel of armed forces to prosecute, arrest without warrant, detain and even use force to the extent of causing death of civilians or any other person on the mere suspicion of causing unrest or disturbance in the said area.
This statute was enacted as a progenitor to the Maintenance of Internal Security Act, and was used extensively before and during Emergency. The Act though contains only six sections and prima faciely would appear as a simple act but nevertheless it has been the most debatable hot topic in India as well as at International forums. This act has led to a brutal cycle of insurgency and counterinsurgency practices by government, claiming lives of people. In the year 1958, when this act was introduced in the Parliament, the then Minister of Home Affairs GB Pant explained the reason for this Bill in the following words:
“This is a very simple measure. It only seeks to protect the steps that the armed forces might have to take in disturbed areas.”
The act through Section 6 gives a blanket provision to the individuals representing the state when they commit murder and also allows them to detain, harass and kill civilians based on mere suspicion or even sometimes on the whims of personnel in the forces. The words of this statute are so carefully drafted so as to even cover non-commissioned officers. Delhi High court in the case Inderjit Barua v .State of Assam clearly held that the “conferment of powers on non-commissioned officers like a Havaldar cannot be said to be bad and unjustified.”
The Act was highly criticised during the time it was being enacted as it contravened the provisions of the Indian Constitution by transferring the executive power to the Centre which can otherwise be done only by a Proclamation of Emergency under Article 352 of the Constitution. This Act has effect if not worse but then too equal to that of Emergency and whilst the 44th Amendment to the Indian Constitution ensured that those days of Emergency would not visit us, this act continues to be in place for 25 years in J&K and for more than half a century in the other North Eastern States.
WHETHER AFSPA, 1958 IS VIOLATIVE OF INDIAN CONSTITUTION?
The North East States of Manipur, Nagaland are very closely situated and are the source of armed opposition groups. The Naga population demands independence of Naga inhabited areas in Assam, Arunachal Pradesh, Manipur and Nagaland. The Conflicts between Nagas and Kukis is major concern in the North Eastern States. Manipur was declared as a disturbed area in 1980 and according to Manipur Chief Minister Ibobi Singh over 8,000 innocent persons and over 12, 000 members of armed opposition groups and security forces have lost their lives.
The constitutional Validity of the Act was challenged in 1997 in the case of Naga People’s Movement of Human Rights, etc. (Petitioner ) vs. Union of India (Respondent) before J. S Verma CJI and four other judges who on November 27th, 1997 held the act to be constitutionally valid. The Constitutional bench held that it is not a colourable legislation and not a fraud on the Indian Constitution and does not have the same object as proclaimed under Article 352. However, the SC also laid down some guidelines for the armed forces deployed in these areas under AFSPA. Court further decided that Act of 1958 in pith and substance is a law in respect of maintenance of public order and is not open to challenge and also in exercise of legislative power. To it, Court added a periodic review of the declaration of an area as disturbed area before the expiry of six months and also the powers given to officers mentioned in Section 3 is not arbitrary and is to be exercised in a situation of grave necessity.
INTERNATIONAL CONVENTIONS AND AFSPA, 1958:
AFSPA is alleged to be violative of various International treaties to which India is a state party. A few of them include Universal Declaration of Human Rights (UDHR), International Covenant on Civil and political Rights (ICCPR), Convention against Torture and many other customary Laws.
India became a party to ICCPR in 1978 by signing it and assumed the responsibility to secure the rights guaranteed by covenant to all its citizens. ICCPR lays down situations in which the rights may be suspended during times of public emergency but still their remains a whole lot of rights which are NON-DEROGABLE and cannot be done away with in conditions whatsoever. But AFSPA is found to be violative of both Derogable and Non- Derogable rights as it has since its enactment created a situation of artificial emergency. Article 4 of the Covenant governs the suspension of some rights which is “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” that states may derogate from their obligations under the ICCPR. Also, such derogation must be “strictly required by the exigencies of the situation” and cannot be inconsistent with other international law obligations nor “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
AFSPA confers wide powers of search and arrest which are virtually unlimited to powers of detention and again a violation of Article 9 of ICCPR which under 9(3) lays down that there has to be a reasonable time afforded after arrest of a person to produce him before any judicial authority and for release but AFSA has failed to give any such rights and generally situations are such that arrested persons are either encountered or they disappear under mysterious circumstances.
Evidences show that AFSPA has also violated provisions of Article 6 which guaranteed right to life, Article 7 which prohibits torture and Article 10 which calls for dignified treatment of everyone. All these provisions are not derogable in any circumstance but AFSPA through its provisions of granting permission to deployed armed persons to undertake acts of violence only on mere suspicion have violated these non-derogable provisions and are still doing so.
It can be said a fault on the part of Indian Judiciary that even after sixty years of Independence such a draconian law is yet not repealed lest being amended. Indian constitution was amended with respect to protection of Right to Life during Emergency but this is not the case with AFSPA. ICCPR also provides for a duty cast on the states to inform other states in case of violation of any of its provisions which is also not done by India.
ILLUSTRATIONS DEMONSTRATING THE MISUSE OF AFSPA:
There have been strikingly numerous cases of gross human rights violations as a result of abuse of AFSPA ranging from murder, rape, disappearance and torture which are gone untried due to the protection available to officers deployed under AFSPA.
The most highlighted case which captured attention of people all over the country as well as world was the custodial rape and subsequent death of Thangjam Manorama, a 32 year old lady from Manipur . She did due to the atrocities committed on her by soldiers of Assam Rifles who escaped due to AFSPA but this gave rise to a widespread movement on streets in the North East. Irom Sharmila, known as Iron Lady of Manipur has been fasting since last 15 years demanding to repeal the said draconian Law, AFSPA. She began her fasting on November 2, 2000 and since then has been kept in solitary confinement under strict governmental Controls with release when her health falls. Partial success of the protests was seen last year when AFSPA was removed from certain parts of J&K but for North East, it continues to be the same.
THE LONGEST HUNGER STRIKE
Irom Sharmila Chanu started her epic battle against the Armed Forces (Special Powers) Act, 1958 (AFSPA) since 2, November, 2000, demanding the government of India to withdraw the Act, which she blames for violence in Manipur and other parts of northeast India. The Act gives draconian powers to the security forces and has repeatedly been used with brazen brutality in the Northeast. On 2 November 2000, in Malom, a town in the Imphal Valley of Manipur, ten civilians were allegedly shot and killed by the Assam Rifles, one of the Indian Paramilitary forces operating in the state, while waiting at a bus stop. The next day’s local newspapers published graphic pictures of the dead bodies. Under such horrible circumstances, Irom Sharmila Chanu, decided to fight against this law. She informed some of her friends about her fast and then went to her mother to ask her permission for the fast. She spoke to her mother. “Mother was quiet. She didn’t say anything, but then she blessed me.” On 6, November 2000, Sharmila sat on the veranda of a house in Malom, not far from the site of the massacre. The local press reported Sharmila’s hunger strike and ran pictures of her. Her brother said, “People were surprised to see a lone young woman on hunger strike protesting against the military. The next morning, he offered her a toothbrush, but she refused, saying she would not even touch water.” A few hours later, three days after she launched the strike, she was arrested by the police and charged with an “attempt to commit suicide”, which is unlawful under section 309 of the Indian Penal Code, and was later transferred to judicial custody. Doctors tried to give her saline drips and liquid food, but she refused. Two weeks into her fast, the doctors announced that her system was collapsing and she wouldn’t last more than a few days. Doctors talked about force-feeding her liquid diet; several activists and supporters suggested she accept this. A tube is attached to her nose, from where a calculated dose of food is inserted into her stomach forcefully, in order to keep her breathing and her vital organs alive. For 14 years, nothing solid has entered her body. Not a drop of water has touched her lips. She has not combed her hair. She cleans her teeth with dry cotton and her lips with dry spirit so she will not sully her fast.
In 2006, She visited Mahatma Gandhi’s Samadhi at Rajghat and later told a journalist “I want to tell the people of India that if Mahatma Gandhi were alive today, he would have launched a movement against the Armed Forces (Special Powers) Act. My appeal to the citizens of the country is to join the campaign against the army act.” After her tribute to Gandhi, Sharmila and her supporters moved to Jantar Mantar, the “protest street” of New Delhi. Hundreds of students, activists, scholars and journalists arrived in solidarity. Television networks parked their vans nearby; reporters hovered around her. Two days later, the Delhi Police arrested her. In March 2007, Sharmila willingly returned to Manipur to continue her protest. It is notable that her house where her mother and brother stay is only a few metres away from the hospital. For over 14 years, she has stood by her demand, refusing to eat. As eminent writer Mahashweta Devi expresses, “The 21st century should be known by the dedication and struggle of Irom Sharmila.” She has spent most of these years alone in jail, in Imphal. Irom 131 Global Academic Research Journal ISSN : 2347 – 3592 Vol - I, Issue - II - November - 2013 Sharmila said, “It is not a punishment, but my bounden duty.” She has been awarded with many laurels for her non-violent contribution towards the human rights movement in the North-East region.
DEMAND OF IROM SHARMILA
Irom Sharmila is fasting to protest the killing of innocent people by security forces meant to protect them. She is opposing the Armed Forces Special Powers Act (AFSPA), a law promulgated to curb insurgency in the state. People throughout Manipur live in a state of fear. on the one hand they fear insurgents, on the other hand security forces.The AFSPA has received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened. A cycle of violence has been set up by these two groups. A report by the Institute for Defense Studies and Analysis (IDSA) states that It is a fact that the AFSPA confers extraordinary powers which have been allegedly misused by the military, police and other paramilitary personnel to commit gross excesses without any fear of being punished. Thus, the Armed Forces Special Powers Act, 1958, (AFSPA), is a direct assault on the mentioned legal interpretation of fundamental rights which constitutes a cardinal principle of Indian jurisprudence. Residents believe that the provision for immunity of security forces urge them to act more brutally. It has ignited wide-scale public protests, been criticized by various representatives of the United Nations and other international human rights organizations.
For decades the peoples of the North-East have been sandwiched between the violence prompted by extremist elements and atrocities of the armed forces. AFSPA is a blot on the Indian democracy. In fact, Sharmila is not fasting unto death. Rather, she is fasting unto life, to remove a brutal law that allows the murder of innocent people. In staking a claim to peace as a basic right to all people, she has become a symbol, an icon and an inspiration. She has decided to sacrifice ‘normal’ life for the sake of a higher cause. Much more, the episode of Irom Sharmila also brings about serious questions about our democracy and how it operates at ground level. The Manipur government should immediately convene the state Assembly on an emergency basis and pass a resolution urging the Centre to repeal AFSPA from the state immediately. This would automatically ensure that the army would be withdrawn from counter-insurgency operations. The struggle is not of Irom Sharmila or of Manipur alone. It is for the entire North East. Merely writing articles or giving condolences won’t work, much more needs to be done. We need to be united. We need to tell the Government that we all want it to be repealed. There is no doubt that in insurgency and militancy affected areas, provisions must be made for the protection of the armed forces during operations and as such many provisions of the Act are perfectly valid and essential. But in a democracy, public opinion and perceptions must be taken into account when examining whether a particular act needs to be reviewed or even repealed.
It is not forgetable that she lives with the nagging pain of a tube thrust into her nose. No man or woman in the history of any struggle anywhere in the world has ever gone through such a long, consistent period of hunger fast. Indian Goverment should understand that being anti-AFSPA is not being anti-Indian. A message must be sent out to the people of disturbed states like Manipur that the government is willing to address, both their real and perceived sense of injustice, by making necessary changes to existing laws. It is the right time for the Indian govt to think about the valuable life of Young Irom Sharmila and also think over the so called insurgency problem in the Manipur and North-East region. But the Indian Government is not trying to negotiate with her. This is against the backdrop of national/international human rights groups, including United Nations, asking the government of India to repeal AFSPA. In the world’s biggest democracy, her hunger strike has become longest in history. She is a living legend of non-violence and for this battle defiantly history will remember her. She expressed her desire "to live a normal life". So the government of India should try to look her precious life and to understand this on the basis of humanity and justice. In a nutshell, we hope the suggestions made will be considered by policy makers with all seriousness and prompt decisions will be taken to restore the credibility of the government of India.