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Legally Explained: Irom Sharmila and what courts & judges think of the draconian AFSPA

Iron Lady Irom's fast is over, yet AFSPA lives. What's its future?
Iron Lady Irom's fast is over, yet AFSPA lives. What's its future?

So, one of the longest fasts in world history has come to an end with the Iron Lady of Manipur, Irom Sharmila, abandoning her ineffective fast to force the Government to repeal the Armed Forces (Special Powers) Act (AFSPA).

Happy to see Sharmila end her fast, after 16 agonising years. But how did it all begin?

Well, in 2000, she was witnessing the consequences of AFSPA in Manipur. On 2 November that year, there was a massacre at Malom, Manipur, in which 10 innocent persons lost their lives.

That was the trigger for her impulsive decision to begin her fast.

She did so demanding the repeal of AFSPA She believed in the Gandhian non-violent protest against unjust laws.

Well, knowing the mighty Indian state, wasn’t she a bit naive?

Perhaps.

But she seems to have matured over the years, exploring options other than just her indefinite fast to achieve the same result, which she aims at.

All these years, she was nasally fed. Indeed, the slim plastic tubes connected to her nose, have become the symbol of her resistance. Did she voluntarily agree to this?

Initially, she resisted force-feeding by the authorities. She was later persuaded by her family and friends to accept nasal-feeding, as losing her life without achieving her goal would not help the cause.

What is the history of AFSPA?

It was enacted in 1958, and first applied to Assam and Manipur. It was amended in 1972 to extend to Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland.

Is something like AFSPA even legal?

Yes, the Supreme Court upheld its constitutional validity in 1998 in Naga People’s Movement of Human Rights v Union of India.

Still, the Act is considered draconian by the human rights defenders.

If you had to name one draconian provision in AFSPA, what would it be?

Without a doubt, section 4(a).

The short of it is that human rights defenders call this provision `a licence to kill’, and inconsistent with the guarantee of right to life and liberty enshrined in Article 21 of the Constitution.

The long of it says that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force even to the causing of death, against any such person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.

When you read this provision with Section 6, which protects the officer from all legal proceedings except with the previous sanction of the Central Government, that begins to hint at how draconian it can be.

OK Agreed it is draconian. Still, the SC has even recently held that it was fine, right?

Yes, on 8 July the SC even relied on its 1998 judgment in the Extra Judicial Execution Victim Families Association v Union of India case.

It was a bench of justices Madan B Lokur and UU Lalit, but their hands were tied and had to rely on the 1998 judgment, which was delivered by a Constitution bench.

A two-judge bench like them could not have overruled the 1998 delivered by a larger bench, even if they had wanted to.

But rather than refer it to a larger bench, the two-Judge bench found a easy way out: they chose an observation from the 1998 judgment, which helped to buttress their conclusion.

What was that observation?

The judges picked up the statement that every death caused by the armed forces, including in the disturbed area of Manipur, should be thoroughly inquired into if there was a complaint or allegation of abuse or misuse of power.

Other judges too have looked at AFSPA, right?

Correct.

The Justice Jeevan Reddy Commission had recommended AFSPA’s repeal, after it was set up by the Central Government under the former SC Judge in 2004.

Reddy submitted its report in 2005, recommending AFSPA’s repeal.

How did the Jeevan Reddy Commission justify its repeal?

The Commission said that the Act is too sketchy, too bold and quite inadequate in several particulars.

It clearly concluded that the 1998 judgment of the Supreme Court upholding the validity of the Act was not an endorsement of its desirability or advisability.

The court does not – it is not supposed to – pronounce upon the wisdom or the necessity of such an enactment.

The court only found the Act within the legislative competence of Parliament, and that it did not violate any of the provisions of the Constitution.

The Act, the Commission said, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.

These are quite strong words from a Government-appointed body. Why did the Government not do anything?

Because it is not binding.

And the then-UPA Government did not place the report in the public domain, and it was leaked to the media later.

In subsequent years, the Government has never accepted its responsibility to implement its recommendations.

The Commission has recommended strengthening of the Unlawful Activities (Prevention) Act, 1967, (UAPA) so that security forces are not handicapped, in case AFSPA is repealed.

The changes recommended in the UAPA, have not yet been accepted by the Centre, which is not ready to repeal AFSPA

Wasn’t there another commission too?

Yes, the Santosh Hegde Commission was asked by the Supreme Court to make an inquiry into a sample of six cases of fake encounters in Manipur, carried out by the security forces, under the cover of AFSPA

The commission concluded that all the six cases were indeed fake.

What did the Hedge Commission conclude about AFSPA?

It found that the continuous use of AFSPA for decades in Manipur has had little or no effect on the situation.

The six cases, referred to it by the Supreme Court, were found to be egregious examples of the AFSPA’s gross abuse.

So two judicial bodies have ruled against AFSPA, yet there is no hope of its repeal in the near future. Is there any remedy in sight at all?

The judgment in Naga Peoples Movement for Human Rights has laid down that the Dos and Don’ts of the Army HQ are binding and any disregard of the same will be punishable under the Army Act.

What do these Dos and Don’ts say?

These Dos and Don’ts and the Ten Commandments of the Chief of Army Staff, ensure that the use of excessive force or retaliatory force by the armed forces of the Union is not permissible.

The Supreme Court had noted in its 8 July judgment that the Army believes in this ethos, and accepts that this principle would apply even in an area declared as a disturbed area under AFSPA and against militants, insurgents and terrorists.

Therefore, the court said, it should apply to the other armed forces of the Union and to the Manipur Police.

The Hegde Commission wanted statutory status to be given to these Dos and Don’ts.

All this is fine on paper. But will they help our Iron lady win her goal of the repeal of AFSPA?

Even if AFSPA is not repealed, if in practice it is diluted as a result of the Supreme Court’s intervention, it would be a big victory for the human rights defenders.

What if the Iron Lady won elections for Chief Minister of Manipur, as she has declared, and directed the repeal of AFSPA in the state?

As chief minister, she could certainly make the Act inoperative in some districts of Manipur.

Whether she can use her powers to make the entire State free from AFSPA is not clear at the moment.

Likely the Army would try to resist any such decision of the state Government.

Photo by American Center Mumbai.

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