By Phrangsngi Pyrtuh
North East Students’ Organization (NESO) in collaboration with the Khasi Students’ Union (KSU) organized a public consultation on Human Rights with special reference to the Armed Forces Special Powers Act, 1958 (AFSPA) enforced in Manipur, some parts of North East and Jammu and Kashmir at Shillong Club. Considering the state of lawlessness prevailing in Garo Hills and the desire of the Chief Minister to declare certain parts of the district as disturbed areas facilitating the entry of the Army the talk could not have happened at a better time. The debate on deployment of the Army in Garo hills has become superfluous. It is best left to the people and representatives of Garo hills to make that decision by accepting the consequence of that decision (after weighing the cost-benefits etc). It should be informed that Meghalaya as with the rest of the north eastern states is within the territorial jurisdiction of the AFSPA. All it needs is for the Governor to recommend its imposition.
Human rights of all sorts, as a subscribed worldview and enforced through binding covenants since 1948, is an ever evolving philosophy which in itself is a new concept. The basic tenet that we are all the same and deserve equal treatment before Man and God (law) is the essence of that philosophy. By becoming a signatory to the Human Rights Covenant each member state is bound to uphold the human rights of its citizens. This means that the state desists from actively breaching human rights by dismantling all sources of such violation. It is in this context that AFSPA is condemned and many including independent bodies and external agencies have sought its immediate repeal for it has been the source of all violations enshrined in the 1948 Human Rights Declaration. On March 2012, the UN had asked for its revocation saying that it has no place in Indian Democracy. There is a clamour from civil society and social groups mainly from the North East and Jammu and Kashmir to repeal the act totally since there are two regions in the country where the draconian law is in operation. The KSU is now part of that bandwagon demanding its repudiation. The question is whether anyone will take notice. Irom Sharmila has been fasting for almost 14 years on the issue. Nothing seems to have worked. Even if a thousand Sharmilas went on a fast it is difficult to see the Indian government tweaking the law in accordance with laid principles of international laws and this article would enunciate the reasons henceforth.
Human rights of the Indian State as far as North East and Jammu and Kashmir is concerned is wielded through a carrot and stick policy -a remnant of the very same policy during the incorporation of the different tribes and kingdoms to the Indian Union post Independence. The bargaining chips employed were simple. Political subservience to the Indian Constitution in exchange for preservation of cultural and traditional rights with sufficient autonomy. The bonus being the autonomous right of universal suffrage. I say autonomous since I believe that we are yet to have full-fledged and sovereign political rights (in choosing our future). Sixty seven years have passed and we are still seeking more autonomy which is duly accorded (now and then). The price we have to pay is the continuation of political suppression of human rights through laws such as AFSPA. Increasingly worrying is the emergence of fresh set of draconian laws such as MPDA promulgated by the very same institution that is supposed to protect the rights of its people. If these laws were to be challenged at an international court they stand little chance of being upheld within the realm of international laws.
Militancy is the raison d’tre for the imposition of AFSPA in Manipur and J&K. The intervention of the Army is necessary to curb militancy and bring back peace. Ironically 55 years after the Act is imposed Manipur is yet to see peace while the number of militant outfits have spiralled out of control. Can we say that Garo hills will not go the Manipur way? History testifies things differently. It must be mentioned that there is no time frame upon which the law would cease to operate, which according to former state CIC, GP Wahlang is the biggest lacunae while speaking at the public consultation. Wahlang’s concern is not new. The Santosh Hegde Commission set up by the Supreme Court (2013) to probe six encounter deaths in Manipur had suggested the need to set a time frame and renewal period for the enforcement of AFSPA. The absence of such a provision has seen increasing number of civilian deaths killed under the pretext of countering militancy in Manipur and J&K.
There is every possibility that the AFSPA in its present form would serve a sinister motive other than security. Rev. PBM Basaiawmoit speaking at the public consultation shocked the audience by skeptically proposing that the colonial law could become the instrument to suppress local opposition in the name of development whether they be Uranium Mining in Meghalaya or the recently discovered gas fields in Manipur (both priceless resources for economic growth). This statement requires public deliberation and should provoke us to think why a colonial law (used by the British masters to suppress the Independence movement) still operates in the North East even after 67 years of Independence. India is in a catch-up syndrome to attain super-power status in the shortest possible time (irrespective of which party rules Delhi). The extraction of resources from the region must be smooth and freed from all impediments to engineer the transfer of feeding the growing Indian elephant. This hypothesis is indeed tempting which is why we must consider the expediency of the AFSPA.
A sticking point is the immunity to the armed personnel for rapes committed which in many cases resulted in deaths. While it is no longer possible to collate the number of rape cases yet not a single army personnel has been convicted till date for this heinous crime. The rape and death report on the infamous Manorama case of 2004 is still under wraps and is currently lying with the Supreme court even after 10 years. The justice Verma Committee constituted after the Nirbhaya rape case of Delhi in 2012 also recommended that the AFSPA be amended so that rape trial committed by Army personnel be conducted in civil courts. However the Ordinance of the Union Government (February 2013) overlooked the recommendation of Justice Verma to criminalize martial rape including the recommendation that senior police or army officials be held responsible for the rapes committed by their juniors. Some argued that army transgression is unavoidable and some parts of human rights maybe suspended during an operation. I want to ask if rape often seen as an act of war during such operations is permissible without bringing the culprit into account? Undoubtedly the AFSPA is a license not only to kill but to rape as well.
The then Union Home Minister P Chidambaram while replying to queries in February 2013 admitted the Government’s weakness to make the Law more humanitarian since the Army Chiefs have strongly protested in diluting any part of it. And we rebuke Pakistani Army for controlling its government. Who rules India? Is the Government more keen to protect the Army than its own citizens? The AFSPA in its present avatar is sure to further alienate the people of the region. The use of the Army within the territorial boundary of an independent country is fraught with problems. Unfortunately as long as laws such as AFSPA exist, the problem becomes the solution. And this solution is by no means a consensual one.