AN ACT THAT DEFIES THE LAW?

Adv P & H High Court Chandigarh

Contrary to popular belief, India does not have an impressive record of ending insurgency. One result of this messy reality is that the draconian Armed Forces Special Powers Act (AFSPA) exists in several parts of the country. It gives legal permission to the military to arrest or conduct a midnight search without a warrant on the basis of reasonable suspicion.


    Most statistical studies show that civil wars in the last century lasted a little over seven years on average. The shortest may have run for just a few days; the longest more than 30 years, according to trends in recent World Bank-funded studies. These findings were mostly based on the African experience, but the global measure of insurgencies isn't very different. Civil wars that began before 1980 lasted 78 months or thereabouts, but those that started after 1980 had a longer lifespan of roughly 105 months. What of India's record? It has been disturbingly poor. The Naga issue has been festering from before Independence, Kashmir since 1987, Manipur is on fire yet again and Assam hasn't really been at peace for three decades. And Naxalism has risen from the ashes, with its deadly challenge to the state, unleashing a violence that devours more than a hundred lives a month.


Punjab and Mizoram are the most prominent of India's few successes in ending insurgency. But they are the exceptions.


Even though the security forces, especially the military, have shown impressive ability in containing insurgency, the political leadership generally lets the status quo prevail rather than transforming the containment into permanent peace. This lack of political capability is now forcing the army to resist major troop reduction in Kashmir, despite a drop in violence. The Union home ministry had suggested the army move some of its Rashtriya Rifles battalions from J&K to Naxaliteridden areas, but the Army, as a senior officer explains, has "contained the violence in Kashmir, and our security grid is working very effectively. What guarantee is there that permanent peace would be achieved in Kashmir, and that we won't need to go back to manage a messed up situation?"


Many within the security establishment believe New Delhi has failed to grasp the opportunity to create a lasting peace in Kashmir. As a result, the people of J&K are soon to complete two decades under AFSPA's menacing shadow. In Nagaland, the act has been in existence since 1958, when it was first enacted by Parliament to contain Naga dissidence. It exists in the entire state of Assam since 1980, in all of Manipur outside Imphal municipal limits, in the hill districts of Tripura, in Arunachal Pradesh's Tirap and Changlang districts and in a 20-km belt bordering Assam, and along another 20-KM belt of Meghalaya bordering Assam.
    Army officers insist that the legal protection offered by AFSPA is crucial to their success and is a prerequisite for anti-Naxal operational deployment. "It is necessary not to treat soldiers as mere policemen. The legal protection empowers them to act with far better determination. The results are there to be seen," says a senior army officer.


Imposition of AFSPA is invariably accompanied by a huge surge of military and paramilitary forces. Both reflect the state's determination to facilitate the military containment of insurgency. Estimates vary, but the army's Jammu-based 16 corps was, at one time, bigger than the British army. This, despite there being two other corps in the state as well. There are no specific numbers available, but around 5,00,000 security personnel are believed to be deployed in J&K, which has a population of just over one crore. That is a skewed security personnel to civilian population ratio and it gets worse in the Kashmir Valley.


 But the Indian state's inability to grab the admittedly slim opportunities for peace is not limited to J&K. Forgotten battles are raging across the northeast. As a result, generations have grown up with a distorted sense of liberty and democracy in several states. To them, India is an illiberal democracy, defined by the military man's right to open fire on crowds, search houses and individuals and control people's daily lives using the authority that comes from the law of the land, aka the Armed Forces Special Powers Act.

 

 
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Advocate

"AN ACT THAT DEFIES THE LAW" VERY APPROPRIATE AND THANK YOU RAJ, FOR UNDERSTANDING THE REAL ISSUES BEHIND THIS ACT. THIS DRACONIAN ACT HAS ITS ROOTS IN BRITISH RAJ IN INDIA WHEN BRIGAIDER-GENERAL R.E.H.DYER ORDERED TO FIRE AT 25 THOUSANDS MEN AND WOMEN AND CHILDRREN AT JALLINANWALA BAGH THAT KILLED 400 PERSONS ON THE SPOT IN TEN HORRIBLE MINUTES. SO WHAT HAPPENED WITH THE INDIANS DURING THE BRITISH RAJ UNDER THIS ACT, IS NOW HAPPENING WITH THE PEOPLE IN THE NORTH EAST. THE ARMY USED TO SAY THAT WE WILL NOT TAKE SUCH ACTION AS THERE ARE CERTAIN DO'S AND DONT'S, BUT ON THE FACE OF KASAVENANDA'S CASE WHEREIN THE GOVT. PLEA WAS REJECTED BY QUOTING THE FAMOUS WORDS OF W.B.YEATS, ' NO GOVERNMENT HAS THE RIGHT, WHETHER TO FLATTER THE FANATICS OR MERE VAGUENESS OF MIND TO FORGE AN INSTRUMENT OF TYRANNY AND SAY THAT IT WILL NEVER BE USED"

 
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Advocate

Should the Armed Forces in the North East and J & K say that the  Act is very harsh and we also have impunity to save ourselves under the Act, but we will touch this Act softly and not harshly?

 
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