AFSPA: Who Rules India?

by Walter Fernandes

Finally a senior Union Minister has made official what many knew already. The government cannot even make the Armed Forces Special Powers Act (AFSPA) more human because the Army does not want it diluted, leave alone repealed. In his K. Subrahmanyam Memorial Lecture on February 6, 2013 at the Institute of Defence Studies, P. Chidambaram said: “We can’t move forward because there is no consensus. The present and former Army Chiefs have taken a strong position that the Act should not be amended (and) do not want the government notification … to be taken back. How does the government … make the AFSPA a more humanitarian law?†(The Hindu, February 7, 2013).

The first question it raises is: “Who rules India: The elected representatives or the Army?†The second is: “Why does the Army oppose even dilution of the Act to make it more humane?†The Justice Verma Commission has said in unequivocal terms that security persons who rape women should be judged under the same Act that applies to the civilians. A similar stand has been taken by others too. In 2005 the Jeevan Reddy Commission said that the AFSPA should be repealed and the clauses that are required should be included in other Acts. R.N. Ravi, former head of the Intelligence Bureau for the North-East, is on record that the AFSPA is the biggest obstacle to peace in the region. Former Home Secretary G.K. Pillai has come out openly against the Act. These statements are not emotional outbursts. They come from persons who have worked in the system and know the dynamics of the Act and of running the govern-ment.

But the Army is opposing even this change. What is their rationale for thinking that security persons who rape innocent women should enjoy impunity in the name of national security? For whose security was the law enacted: for that of the country or of the criminals in uniform? Whenever some change is suggested in the Act the Army seems to oppose it and the civilian government buckles under its pressure. For example, when the Jeevan Reddy Commission, appointed to inquire into the alleged rape and murder of 30-year old Manorama Devi of Imphal in Manipur arrested by the Assam Rifles, suggested that the law should be repealed and the clauses that are required should be integrated with other all-India laws the government did not even publish the report. The Hindu procured it “illegally†and uploaded it on its website.

After the Verma Commission Report said that security persons who rape women should be tried under civilian law, the Union Law Minister said in an interview on NDTV that there are problems in implementing these suggestions. During a TV discussion another Union Minister said that because of its slow legal process the public does not know the punishment meted out by the Army. They did not specify the constraints or the legal action taken. A search of the records shows very few cases of trial, leave alone of punishment. For example, no action has been taken in the Manorama Devi case. On December 23, 2005 a group of university students entered a railway compartment at Kokrajhar in Assam, not knowing that armed security persons from Haryana were travelling in it. The jawans closed the doors of the compartment and tried to molest the students. Alerted by their shouts the Bodo Students Union activists stopped the train and tried to take action on the jawans. The police opened fire on them and four students died. No action has been taken till today.

One can give many more such instances that have gone unreported or have been hushed up. In a recent case in Assam the local people caught the jawan so the Army promised action against him. He was jailed for three months. People in Jammu and Kashmir speak of a large number of women who have been violated but the armed forces have gone unpunished. So the women live with a sense of shame. Some of them testified before the Verma Commission and its recommendation stems from their testimony. One is also told that the honour of the Army is involved and national security requires the law. In what way does lack of action against rape protect the honour of the Army?

One can question the AFSPA even from the security point of view. It was enacted in 1958 on an experimental basis for six months as a measure against “terrorist†groups in the North-East. It was applied first in Nagaland, in 1980 in Manipur, later in Jammu and Kashmir and over the decades in more areas of the North-East. What was enacted for six months has remained for more than five decades. In 1958 there was one “terrorist†group in the North-East. Manipur had two groups when the State was brought under the Act. Today, Manipur has more than twenty such groups, Assam has not less than fifteen, Meghalaya has five of them and other States have more groups. How does the Army explain this proliferation of militant groups in spite of the Act? Has it served its purpose?

One is also told that the armed forces will not be able to remain in the North-East or Jammu and Kashmir if the law is repealed. That is a lie. The Army is deployed all over India without such a law. Those who demand its repeal do not ask the Army to leave any region. They only want the armed forces to serve the country under the Constitution without a law that allows abuses with impunity. There is no reason why a rapist or murderer should have a separate law only because he belongs to the armed forces. Take for granted for a moment that all the women whom they rape are terrorists. Why should they be raped? Why can they not be dealt with under the law of the land? These actions do not add to the honour of the armed forces or to the security of India. They only violate people’s right to a life with dignity and cannot be justified in a democratic country.

Civilians have been elected to rule the country. They have a duty to ensure that the security forces work under the Constitution. The problems in the North-East and in Kashmir should be solved through a political process and not through a law that violates the people’s right to life and dignity with impunity. They need confidence building measures (CBM) in order to move towards peace with justice. What better CBM can one suggest than repealing the AFSPA?

Dr Walter Fernandes is a former Director and at present Senior Fellow at the North-Eastern Social Research Centre, Guwahati.