Tuesday, August 28, 2007

Celebrating 60 Years of Indian Democracy and 50 Years of the Armed Forces Special Powers Act, 1958

By: Malem Mangal Laishram

Irom Sharmila, the young lady from Manipur who has been on fast for the last six years since the infamous Malom massacre of 2000, demanding the repeal of the Armed Forces Special Powers Act 1958 – is the 21st century legacy of Mahatma Gandhi’s non-violence. Her struggle is symbolic of the people’s tooth and nail opposition to the draconian law – the AFSPA. She is neither Irom Sharmila Chanu nor an ordinary Manipuri woman rather she is the “Iron Lady of Manipur” who has challenged a callous and apathetic government and its regime of draconian law with her unique struggle1. Sharmila is a living legend of the people’s undying spirit against the black law – the AFPSA.

It is almost 60 years today that the Indian democracy took birth on 15th Aug.1947. India - the child of freedom at midnight, is a Sovereign, Socialist, Secular, Democratic, Republic and perhaps, the largest democracy in the world today. For every Indian, the fateful day of 15th Aug. 1947 was the greatest jubilation and rejoicing moment they ever experienced in their lifetime. And for those, from M.K. Gandhi, who was entitled the father of the nation later, and to the several million ordinary Indians, 15th Aug. 1947 was much more than freedom from colonial yoke. Indeed, it was the dawn of a new life….., a new beginning with an unlimited horizon and a universe of freedom … unexplainable …to all the Indians and the newly born Indian nation-state. Politically, India got its shape with the adoption and enactment of the Indian Constitution on 26th Nov.1949.

Every historic event of the Indian freedom struggle against the colonial British, from the Battle of Plassey, 1757 to the Quit India movement of 1942, among a hundred significant others, ultimately accomplished its one and only long cherished dream – independence of India when the Indian Independence Act was passed by the British parliament on 15th Aug. 1947. 15th August is the greatest triumph and victory for every mainstream Indian and Bharat-vasi then and now. The Indians cannot dream without 15th August in the whole 365 days of a year.

It was the one side of the whole episode. The another side of the story is often surprising and offending. This story was about the peripheries of India – Assam, Manipur, Tripura, Arunachal Pradesh or then North East Frontier Areas (as existed in 1947) in the east, Panjab or then North West Frontier Province in the west, Jammu and Kashmir in the north, etc. Unlike the mainland India, these peripheries were experiencing something different - a strong discontentment and anxiety. The newly emerged Indian state was in the fast process of nation-state building. The Indian leadership like Pandit Nehru, Sardar Patel, etc. were on the fore-front of engineering the integration of these peripheral princely states into the Indian Union2.

That engineering and integration process was, perhaps, the greatest mistake of the then political leadership and there is a principal connection with the turmoil besetting the north eastern region, and other peripheries like Jammu and Kashmir, etc.

The violence and extreme unrest that characterises the NE region today is the result of that process. The turbulence which began in the aftermath of the process is still alive and more vivid today. A number of Instruments of Accessions and Merger Agreements of the princely states of the region into the Union of India took place as a crucial part of the integration process.

In fact, these princely states opted the provision to remain politically independent of either India or Pakistan3. It is a known fact that before the passage of the Indian Independence Act 1947, these princely states of the north eastern region were administered by British India save the Naga hills and Tuensang district (excluded areas) of the then Assam4. Further, the British paramountcy lapsed and all the princely states formerly under the British India became independent5. Thus, the independence of these princely states was obvious and legitimate. There was no doubt to their post-British-1947 status.

These princely states were all rejoicing and singing the songs of freedom from the bondage of the colonial rule. For instance, Manipur adopted modern democracy and parliamentary form of government in 1947 itself by the Manipur Constitution Act of 1947. General elections were held all over the state6. Till then, shocked and astounded by the Annexation of Manipur in 1949 by the Indian state7. Gradually, the rest of the region was brought under the banner of the Indian Union. Nagaland, Meghalaya and Mizoram were carved out of Assam in 1962, 1971 and 1986 respectively.

The subsequent rebellion by these NE states against the authority of the Indian state in post –colonial-British-regime was put down with an iron hand. The prevailing turmoil in the region which is deep-rooted in history, politics and economy has never been seriously and properly addressed by the Central government rather it responded with brute force.

The colonial repressive law – the Armed Forces Special Powers Act 1958 which was used against India by the then British was the response to the situation from the top political brass of India. Today, the life in the NE region is caught in the decades long armed conflict between the Indian armed forces and the armed opposition bodies of the region. Leave alone personal liberty, even right to life – the basic essence of all human rights and fundamental freedoms is at peril and great dismay. Everyday life is seriously threatened and not free from the worse imminent danger (right) to life – Death.

"The core of all human rights and fundamental freedoms – RIGHT TO LIFE is done to death. Humanity is killed at suspicious behaviour, no rule of the Rule of Law, and Justice slaughtered – devil AFSPA reigns"

It has almost completed 50 years that the AFSPA has been in force in the region since 1958. The irony is clear while the mainstream Indians celebrates their joyous diamond jubilee of the Independence day, the people of the entire region condemns, mockingly, the golden jubilee or the 50 years of brutalities suffered due to the imposition of the draconian law – the Armed Forces Special Powers Act 1958. It is significant to trace the history of the AFSPA 1958 in the backdrop of the celebration of 60 years of Indian independence. For it was the same instrument which the colonial British deployed against India during the peak of the Indian freedom struggle in 1942. The heightening freedom struggle of India – particularly – the Quit India movement of 1942 was suppressed by Lord Linlithgow, the then Viceroy and Governor-General of British India by promulgating the Armed Forces Special Powers Ordinance 1942.

The Indian parliament enacted the Armed Forces Special Powers Act after discussing for only 3 hours in the Lok Sabha and 4 hours in the Rajya Sabha with retrospective effect from 22nd May, 1958. A xeroxed copy of the 1942 colonial statute, the AFSPA 1958 bears a more draconian and terrorized version. Thus, it is crystal clear that the AFSPA 1958 is the successor of the 1942 colonial legislation and a colonial residue of the British regime. The demoniacal colonial law had to exist in order to sustain colony, the justification of the colonial statute today, proves that the colony survives8. While protesting against the law, the Deputy Speaker of the Lok Sabha on 18th Aug. 1958 stated "It pains me that we have an occassion in this house to give our assent to a martial law which was forced on us by an Ordinance… why have they (government) smuggled this legislation in this way? It is really a challenge to the concept of democracy and freedom that we have".

Earlier, only Assam and Manipur were covered by the AFSPA, however, by the 1972 Amendment of the Act whole of the north-eastern states viz. Assam, Manipur, Arunachal Pradesh, Nagaland, Mizoram, Tripura and Meghalaya were brought under the ambit of the Act (except Sikkim). Since then, without any break and judicial review, the black law has been in force in the region. The highly praised judicial activism of the Supreme Court of India failed when it upheld the constitutionality of the Act on 27th Nov. 19979.

The AFSPA is the most draconian of all the black laws – the National Security Act, Panjab Security Act, etc, which are hyperactive in the region. The Central government justifies the invocation of the AFSPA to contain insurgency. It was basically enacted to quell the Naga ethnic uprising in the then Naga Hills and Tuensang District of the then Assam. There were no organized insurgency in 1958 as it is today. Contradictorily, insurgency flourished only after the advent of the AFSPA in the region. Many insurgent affected states blame the AFSPA for giving birth to a host of armed opposition bodies which were unknown elsewhere before the arrival of the Act. The Act has much to do with the prolonged frustration and restlessness of the peoples in the region.

The naked truth about the AFSPA 1958

The AFSPA gives the armed forces wide and blanket powers to shoot to kill (sec. 4,a), arrest (sec. 4,c) and search (sec. 4,d) without a warrant in a disturbed area in aid of the civil power. The greatest outrage of the Act is sec. 4(a) depriving life on mere suspicion in order to maintain public order. What constitutes “mere suspicion” and “public order” is nowhere mentioned in the Act. This power to shoot to kill is not given only to a private jawan. But in reality, every rank and file of the armed forces exercise this power.

Sec.4 (a) violates Article 21 of the Indian constitution which provides "No person shall be deprived of his life and personal liberty except according to procedure established by law". It also violates Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Universal Declaration of Human Rights (UDHR) of which India is a party. Sec.4 (a) is against procedure established by law. " Procedure established by law" has come to mean just, fair and reasonable since the case of Maneka Gandhi v Union of India10. Because it takes away or kills LIFE arbitrarily on mere suspicion which does not have any lawful basis or procedure at all.

For an offence which is only murder, the punishment is death or life imprisonment (Section 302 of the Indian Penal Code). Murder is nowhere listed as an offence in sec. 4(a). Yet, death is the only answer or Sec .4(a) is synonymous with death. It is totally ridiculous and absurd. The AFSPA is the “butcher law” but not a law in the true sense of the term. Because “People’s Good is the Highest Law”, stated the Roman lawyer, Cicero.

The South Asia Human Rights Documentation Centre (SAHRDC) rightly observes "this provision give broad license to extra-judicially execute innocent and suspected persons under the disguise of maintaining law and order. It violates every norms of a civilized society". Sec.4 (a) is a sheer negation and denial of the fore-most fundamental right to life.

Section 5 of the AFSPA violates Article 22 of the constitution by permitting the armed forces to detain persons arrested under the Act for an unspecified period of time without judicial review. Section 6 violates Article 32 of the constitution by denying legal prosecution against the armed forces without the previous sanction of the Central government.

The existence of the draconian AFSPA poses a serious setback and challenge to the human rights jurisprudence, advocates, defenders and activists as well. It was hundred per cent colonial instrument used for legitimization and continuation of colonialism11. The AFSPA undermines the very foundations of democracy, justice and human rights. Basic human rights are curtailed and fundamental freedoms denied. It shook the conscience of all humanity.

The infamous killings and massacres like Malom, RIMS, Heirangoithong, etc. among hundred others are all glaring instances showing that the armed forces blatantly violates the basic tenets of human rights and fundamental freedoms systematically and persistently, under the AFSPA regime in the region. There is no way for the Act to stay for a day longer in the statute book of a civilized legal system. The people of the NE region has been suffering the barbarious oppression under the AFSPA rule. Their non-derogable rights are murdered and sacrificed at the cost of the so-called larger national interests and security of India. The victims of human rights violations are left with no remedy but to their fate alone. Indeed, AFSPA has defeated humanity in this region.

The Rule of law is dead in the region. State of undeclared emergency prevails and right to life is extremely uncertain. The military rules the region. Their whims and doubtful 'opinions' rule over the rule of law. The AFSPA denies equality before law. Not a single armed forces personnel has been punished for blatant violations of human rights, reports the Amnesty International. Thus, there is no remedy for the victims of the abuse practices and mockingly, for those who-would-be in future. Justice is ultimately assassinated in the poor NE region.

The sweeping powers of the Act, license to kill, lack of accountability and judicial review earned the AFSPA the title of a Demon's law. The nature of the Act proves that such a law is best applied to the kingdom of demons. No human civilization would justify such a senseless law.

The infamous nude protest following the custodial rape and extra-judicial brutal murder of Th. Manorama, in front of the historic Kangla by Manipuri women demonstrated people's resentment and fury against the oppressive Act. It exemplifies people's intolerability to the lawless law. It has questioned the very justification of the black law by the largest democracy. Democracy must be substantial rather than by virtue of the largest number of electorates.

The fundamental question is why the people of the region are suffering like colonial subjects? Are they not considered as the legitimate citizens of the Indian democracy? If they are the citizens of India why their basic and inalienable rights are denied arbitrarily for such a long period? Do the Central government does not have any responsibility towards the citizens of the region to protect and safeguard their fundamental human rights? Why equality before law is denied to the people of the NE region of India? Is the north-east a foreign land or a region colonized with the help of the AFSPA? Why the draconian law – the AFSPA has been in force for such a long period of half-a-century in the region, contrary to the earlier contemplated short-term measure?

Why the armed forces of India are being engaged or deployed against its own people of the region? Why the ordinary criminal laws like the Indian Penal Code, Criminal Procedure Code or the Unlawful Activities Prevention Act, etc. cannot maintain law and order in the region when the same laws can do so in other states of the country? Why the AFSPA is specifically deployed in the region? If it is for insurgency or armed violence then why the same act is not applied to the Naxalites affected states like Uttar Pradesh, Madhya Pradesh, Andhra Pradesh, Bihar, Chatisgarh, etc?

Why is the North-eastern region being targeted discriminatorily and racially? Are the Mongoloid-Asiatic-yellowish faces of the region not included in the definition of citizens or people as proclaimed in “We, The People of India” the very first beginning of the preamble of the Indian Constitution? Then, who are these north-eastern people? Where is their place in the Indian society? Are they being conceived as an occupied alien community? Is that the reason behind the strong feeling of alienation in the minds of these peoples from the mainland India? Does the Central government follow a special policy of governance for the entire region? The questions are thousands and pouring in ever, never ending.

If the Central government feels that there is a genuine political cause behind the unrest and violence in the region, it should strive seriously and sincerely to address and resolve the situation at the earliest. The Annual Report of the Home Ministry, Government of India 1996-97 reports about the states most affected by insurgency. The Union Government’s effort and subsequent political dialogues with one of the major insurgent bodies of the region – the National Socialist Council of Nagaland (Issac-Muivah) indicates that the government considers insurgency a purely political problem as against the earlier misconception of law and order problem.

The Attorney General of India while submitting India’s Annual Periodic Report to the United Nations Human Rights Committee in 1991 defended and justified the AFSPA on grounds that the NE states are demanding secession from India. Even if there is secessionism in the region, the Central government cannot massacre and eliminate all the peoples of the region by deploying the AFSPA 1958. The AFSPA has covert agenda for genocide12.

The Central government should strive for a viable and practicable political solution to the complicated problem of the region. History is testimony that neither genocide nor draconian law like the AFSPA is the solution for genuine political problems. If the Central government goes on by this strategy to solve purely political problems through brute force or use of draconian laws, democracy India would be reduced to the most outrageous military regime second but to the erstwhile Nazi Germany of Hitler.

Thus, there is no denying to the fact that humanity is dead wherever AFSPA reigns. The AFSPA means human rights ends. There is absolutely nothing beyond AFSPA. What waits the peoples of the NE region? Where is their destiny? Only the AFSPA knows. Would the Supreme Court save them by pronouncing the Act unconstitutional? And what if not? Mainstream Indians celebrates freedom from colonial British, the peoples of the region endure and condemn vehemently colonization under the regime of AFSPA 1958.

The writer is a final year student of LLB from Bharati Vidyapeeth University, Pune and can be reached at malem.mangal@gmail.com

1. Mainstream, 21st October, 2006, New Delhi

2. Patel Scheme

3. Indian Independence Act 1947

4. Mackenzie, A, 1884, History of the Relations of the Government with the Hill Tribes of the North East Frontiers of Bengal, Calcutta, Home Department Press

5. Indian Independence Act 1947

6. Manipur Constitution Act 1947

7. PDM, Annexation of Manipur 1949, Imphal, 1995

8. Sanajaoba, N, 2000, Human Rights in the New Millennium, Manas Publications, 24, Ansari Road, Darya Ganj, New Delhi

9. NPMHR v UOI AIR 1998 SC 431

10. AIR 1978 SC 597

11. Sanajaoba, N, 2000, Human Rights in the New Millennium, Manas Publications, 24, Ansari Road, Darya Ganj, New Delhi

12. Sanajaoba, N, 2000, Human Rights in the New Millennium, Manas Publications, 24, Ansari Road, Darya Ganj, New Delhi

No comments: