THE RAPE OF DEMOCRACY
By Biak Hangzo

As the national capital erupts to celebrate the dynamism of democracy owing to the stellar performance of ArvindKejriwal’sAAP in Delhi assembly elections, parts of the north east are still reeling in wanton atrocities under thereign ofpara-military forces who strips off the very basic human rights and dignity of people whom the country called its own citizens.  While national media were terming these phenomena in Delhi as ‘the dance of democracy’ ‘the power of the common man’ or ‘the dynamics of democracy’ or other romantic journalistic jargons, the same is still a far flung dream for the north eastern states, particularly where a heinous instrument called the Armed Forces Special Powers Act, 1958 (AFSPA, 1958) has been imposed. Well, there might be people who beg to differ and say that the act is an instrument to protect the people from the non-state actors who thrives a plenty in the region. It is understood that the act was allegedly in one way or the other, a means to protect civilians. But the question still remains, “Does a law that stripped the basic rights of its citizens compatible with the ethos of a democratic country?”

Anatomy of AFSPA, 1958
TheArmed Forces Special Powers Act, 1958 (AFSPA, 1958) is said to have its origin from the oppressive British colonial law that was passed by the British in 1942 to suppress the freedom movement of India from a foreign rule during the Second World War. However, there are others who opined that this was an extension of Article 355 of the constitution of India.

The atrocious nature of the act is that: (a) It empowered the para-military forces to arrest a suspect without warrant (b) shoot to the extent of killing on the mere pretext of being a suspect (c) Enter and search any premises without warrant (d) The forces deployed under this act were immune from civilian judiciary except with prior sanction of the central government.

If the governor of a state or union territory determines that an area is disturbed; can declare whole or random area of a state as disturbed and the act should be in force. And the power to declare an area as disturbed is extended to the Central Government in the 1972 version of the act.

Is oppressive law effective to contain insurgency in the North East?
History has witnessed the display of repressive policies in many instances like Jordan, Vietnam, Bangladesh, Ireland, etc. where none of them were effective to contain the uprising. Rather, in most cases, it escalates the intensity of violence. A case in point is Vietnam, where America lost its military pride except in its celestial Hollywood movies.

In the North East as well, when AFSPA was imposed on in the whole state of Manipur in 1980, there were only four armed opposition in Manipur. However, presently there are a whooping 30+ insurgent groups operating in Manipur alone. Apart from these, studies have found that there is an upsurge in the incidence of insurgent groups being formed in the North East region.

Moreover, it is sickening to note that in the recent Pre-Christmas massacre in Assam could not be prevented, despite the AFSPA being effective and prior intelligence being received in November and 2 hours prior to the incident, where more than 80 innocent civilians were murdered. This is one clear case of unhealthy reliance and ineffective blend of civil and military rule. If AFSPA could not protect the rights of its citizens, then its relevance is highly questionable.

AFSPA and International Laws
In July 1997, the UN Human Rights Committee in its concluding observations in compliance to ICCPR, they noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant (ICCPR).
It continues to note, “The Committee regrets that some parts of India remain subject to declaration as disturbed areas over many years. For example, the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer, and that in these areas, the State party is in effect using emergency powers without resorting to Article 4, paragraph 3, of the Covenant.

It is interesting to note that the government of India ratified the International Covenant of Civil and Political Rights (ICCPR) in 1979. However, no revision of AFSPA to align with article 2 and 4 of ICCPR has been done till date. And it continues to violate the International law to curtail the basic human rights of its citizens in a constitutional democracy.  

The loopholes
Even if India could boast of being rich in policies, of course without implementation, the act could not define certain terms which can be arbitrarily interpreted. In this case, the word ‘disturbed’ and ‘suspect’ is of key issue. There is no clear definition or framework by which the government may determine an area as disturbed. Or will they depend on random newspaper chronology? No one knows. This gives the power of monopoly to the government machinery to declare an area as disturbed for fictitious or factual reasons.

The word suspect is also another word that could not be clearly defined in the parlance of the act. A suspect to apara-military personnel can be anyone in a civilian setting. As the Reddy Committee commissioned to review AFSPA in 2004 said, “…certain members thereof may seek to take advantage of their power and position to harass or otherwise trample upon the rights of the citizens of this country.”The act gives free hand to the deployed forces to violate the rights of the any civilian by being harassed and even killed on the mere pretext of being a suspect.  And no judicial enquiry could be done against the perpetrator by the judiciary of the state government even if there is an obvious case of extra judicial atrocity. This clearly stripped the judicial power in the democratic government to administer justice to its citizens, and the basic right to live were sacrificed on the altar of military rule. And it is a murder of democratic judiciary.

States have the legitimate reasons, rights and duties to contain and eliminate non state actors to protect the citizens and their rights. But it does not give the state the right to take away the right to life in an intentional and unlawful way or the state cannot violate the basic human rights of its citizens guaranteed under its national as well as international law.

In the final analysis, whether the act be an extension of article 355 of the constitution of India or a revised version of the British colonial law, the fact still remains that a semblance of colonial law is being used against its own citizens in India. Whatever the case may be, AFSPA is an imperial instrument to curtail the basic right to life of its people in the name of counter insurgency. As Henry Jardine, anAmerican Consul General in Kolkata observed while visiting Manipur in 2006, “Manipur is less of a state and more of a colony” due to the overwhelming military presence.

As India began to flex its muscles in the international arena, it is also vital for it to revisit its basic concept of federation particularly with that of the North East. The present policy towards the NE region with respect to AFSPA gives the impression that the North Eastern states were not federated, but rather colonised. And that is the perception of many denizens hailing from the region.

It is therefore pertinent to repealAFSPA and align its NE counter insurgency operation policies with that of the Naxals who were equally “disturbing.” Otherwise, while the dance of democracy is being revelled in the mainland; the North East will suffer perpetual rape of democracy which may eventually give birth unless the rapists were castrated.

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