Heyns, the Final Straw for AFSPA in India?

In this article, the author discusses the controversial Armed Forces (Special Powers) Act (AFSPA) of India, which has been implemented in the North Eastern states of India, and Jammu and Kashmir where counter-insurgency operations have been carried out in the past several decades. 

By Rithika Nair, May 1, 2012

Christof Heyns, the Special Rapporteur on Extrajudicial Killings described India as “a living document … [of] human rights jurisprudence respected worldwide.” This extolling statement preceded his review of the country after brief visits to New Delhi, Gujarat, Kerala, Jammu and Kashmir, Assam and West Bengal. His detailed report on the issue will be submitted before the United Nations Human Rights Council only in 2013.

In a press release after his visit, he expressed concern regarding unlawful killings by State actors and non-State actors, delay in prosecution and lawful impunity. He touched upon the disproportional and unnecessary use of force by the police, encounter killings, custodial deaths, the death penalty, the Armed Forces Special Powers Act, communal violence, insurgencies and counter-insurgencies, violence against women, and most significantly measures of impunity and rewards instead of prosecution.

Of all the issues he tackled in context of extrajudicial killings, the most contended yet very significant is the Armed Forces Special Powers Act which lawfully permits extrajudicial killings. The Armed Forces (Assam and Manipur) Special Powers Act or AFSPA was implemented in 1958 conferring special powers to the armed forces in the northeastern region of India. The act was an evolution of the British Indian Armed Forces (Special Powers Ordinance) 1942, enacted to suppress the Quit India Movement, the Assam Maintenance of Public Order Act 1953, and the Assam Disturbed Areas Act 1955. In 1958, AFSPA was authorized in reaction to the Naga secessionist movement which had unfolded across the Seven Sister States of Northeast India. Between 1985 and 1994, it was applied in Punjab, and in 1990, the Act was extended to Jammu and Kashmir. AFSPA gives any member of the armed forces in the prescribed regions the power to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order”. The act allowed them to declare areas as disturbed, enter, search and arrest without a warrant, and destroy arms dumps or fortified shelters.

AFSPA, since its genesis, has had multiple opponents human rights organizations, individual State governments, and masses of ordinary civilians. They state that the provisions of AFSPA breach international law standards as well as the regulations of the Indian constitution. It violates the right to life defended by the Universal Declaration of Human Rights (Article 3), the Geneva Conventions and the International Covenant on Civil and Political Rights (Articles 4 and 6) to which India is a signatory. The carefully worded Article 21 of the Indian Constitution affirms the protection of life and personal liberty, and forbids the deprivation of the same “except according to procedure established by law”. Even though AFSPA was authorized by the Supreme Court, the 44th Constitutional Amendment Act of 1978 emphasised that right to life is supreme and cannot be suspended even during emergencies or by any other procedure. Moreover, in the Maneka Gandhi vs. Union of India case, 1978, the Supreme Court interpreted procedure established by law as to not just mean an enacted legislation, but as being fair, just, reasonable, and tested against the entire framework of fundamental rights. This reversed the earlier stand of the court that any law enacted by the parliament was to be considered procedure established by law. In the Naga Peoples’ Movement of Human Rights vs. Union of India case, 1997, the Act was contended by Articles 14, 19, 21, 22 and 25 of the Constitution. AFSPA in its very nature then goes not only against international legal standards, but also against domestic legal jurisprudence.

Over the years, the armed forces have been accused not only of embarking on a killing spree with no check on whom they target, but also of raping women. In 2004, at least 100 women paraded naked in Imphal protesting the torture, rape and murder of Thangjam Manorama – who was arrested by the Assam Rifles on allegations of involvement with separatist rebels. The parading women held banners that read “Indian Army Rape Us”. Similarly, following the death of ten civilians by paramilitary forces in 2000, Irom Sharmila Chanu, a young woman from Manipur has been on a fast to demand the repeal of AFSPA.

In 1997, the Naga People’s Movement for Human Rights vs. Union of India case saw the Supreme Court defending the constitutional validity of AFSPA. In 2006, the Jeevan Reddy Commission that was appointed to review AFSPA, recommended repealing the law and replacing it with the Unlawful Activities Prevention Act with the addition of other appropriate provisions. “The act has become a symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness”, their report stated. It also said that the act has “helped to sustain the insurgency by violating people’s human rights”. The Veerapa Moily headed Second Administrative Reform Committee report of 2007 made the same recommendation. The repeal of the Act was voiced by the UN Human Rights Commission, the Committee on the Elimination of Discrimination against Women, the Committee on the Elimination of Racial Discrimination, the Committee on Economic Social and Cultural Rights, the Human Rights Council, the Independent Citizens’ Fact-Finding Report to the Nation, the Working Group on Human Rights and the UN, and many others. Christof Heyns in his statement said that a “law such as AFSPA has no role to play in a democracy and should be scrapped”.

Exponents of the Act have defended it as a necessary counter insurgency measure to “neutralize insurgents and secessionist movements”. Any amendment or repeal of the act, they believe, would render the presence and mandate of the armed forces redundant. Army figureheads reiterate that the military is summoned as a last resort, when internal and political security measures fail or cease to operate. The presence of soldiers in the “disturbed areas” is because the police and paramilitary forces were unable to do their jobs. They continue to defend their presence in the Kashmir valley in effect of the situation being a proxy-war, and the need for the military to support the border forces, and guard territory. They attribute the civilian killings to insurgents instigating the masses against the army, deny the occurrences of rape, and assure procedures of court marshal and suspension to those officials who acted outside the boundaries of law.

With such marked arguments in favour of and against it, AFSPA has acquired a position of unclarity, doubt and objectivity. Prime Minister Manmohan Singh had stated that AFSPA would be replaced with a more “humane” act. However, there is no consensus within the parliament as to if and how the act should be amended. Even though Heyns urged the Government of India to withdraw the act completely, his request is just another added straw to the stack. Last year, the Special Rapporteur on Human Rights Defenders, Margaret Sekaggya had made the same request after her visit to the country, but other than a short-lived clamour, no action was taken. The situation resembles an undulating Mexican wave, rising in protest for a brief period followed by total inaction, and then again swelling to subside into nothingness.

One could argue for a Clausewitzian ‘political before military’ strategy, or the Johnsonian ‘winning the hearts and minds’ approach instead of AFSPA, but it would be politically naïve to believe that such solutions had not been contemplated before. When comrades of the Indian armed forces defend their presence and AFSPA to protect and safeguard ordinary civilians against terrorists, it becomes the responsibility of the Government of India to transcend this protection to not only against terrorists, but also against their own forces. Whether AFSPA is essential or not, whether the presence of the armed forces in “disturbed areas” is required or not, it is the duty of the Government of India to ensure that no civilians are injured or killed during its military operations, or at any time. With countless statements, requests and pleas before the Indian government, one can only hope that the Special Rapporteur’s report next year would be that straw which finally broke the laden camel’s back.

Rithika Nair is a Human Rights researcher at the Commonwealth Human Rights Initiative in New Delhi. Her primary areas of interest are child rights, children involved in armed conflict, and the conflict zones in Africa.