By Anmol Sharma*
What the Armed Forces Special Powers Act (AFSPA), 1958, is really doing to India, and why it should be repealed.
Now, disregarding the spar between political parties over this issue, it is imperative for us to understand why a red discontent is growing against this Act of 1958, particularly in the North Eastern States and why political parties like PDP are asking for repeal. Here it would not be an aberration to state that in the first place, assiduous and an analytical approach should be adopted to discern the legacy of AFSPA and in the second scrutinize the collateral damage of vast extraordinary powers it confers to the Armed Forces in dealing with “disturbance” in civilian areas.
So this kind of situation has precipitated overriding predicaments before the Indian civil society, such as, is AFSPA not an anti-thesis to the credentials of India as the largest democracy in the world? Is the genre of such type of draconian laws the only solution for solving the so-called insurgency in North-Eastern States and cross-border terrorism in Jammu and Kashmir?
It is, however, germane to note at the same time, that Indians, under the colonial rule of the British were themselves subject to scores of draconian and brutal laws. The description and details of them is not only tragic but grotesque too. Interestingly the genesis of the Act in question is in these very same British colonial laws, as Delhi University’s Political Analyst Dr. A. S. Ojha points out, “The AFSPA was borrowed heavily from laws passed during the British colonial era and is a dark legacy”. This is a mega reversal of the role we as a nation have managed to achieve, where we are now perpetrating the same atrocious laws upon our own brothers and sisters in the garb of countering insurgency and terrorism.
The parliamentarians took just three hours in the Lok Sabha and four in the Rajya Sabha to approve this hideous Act. Yet, in the 50 years of legislative history, AFSPA is an emblematic case of patriarchal violence getting State’s legitimacy. Blanket powers are conferred to the Armed Forces and this has ostensibly resulted in innumerable incidents of arbitrary detentions, torture, rape, and lootings.
Under this Act, security forces have at their hands a dangerous cocktail of carte blanche powers with absolutely no accountability in carrying out their operations once an area is declared as “disturbed”. All the arbitrary and unconstitutional powers conferred to military personnel originate from section 4 of AFSPA.
Under section 4(a), even a mere suspicion allows a non-commissioned officer (havaldar) the power to shoot-to-kill any person.
He can use force against people who are not presenting any force. He can destroy any property, under section 4(b), if it is suspected of being used as a fortified position. Under section 4(c), anyone can be arrested without warrant if it is suspected that he has committed a cognizable offence. Under section 4(d), force can be used to enter and search any house on suspicion of it being used as a hide out.
Section 6 is the ice in this deadly cocktail. It establishes that no legal proceeding can be initiated against any member of the military for their abuses. This section provides legal immunity and leaves the victims of the armed forces with no legal remedy.