Armed Forces(Special Powers) Act (AFSPA)
And Irom Sharmila's Struggle For Justice
By Asit Das
19 November, 2011
Countercurrents.org
The lofty proclamations of liberal democracy – like: equality, liberty and right to life are the social contracts signed by the Modern Nation-States to legitimize itself, values as liberal democracy, where citizens' rights are sacrosanct, where individual rights are supposed to be the foundation in the structure of governance mechanisms including the coercive apparatus like the army, paramilitary, and the police.
However, the reality is different. The existence of extremely draconian acts like the Armed Forces (Special Powers) Act (AFSPA), The Unlawful Activities (Prevention) Act (UAPA), Chhattisgarh Special Public Security Act , National Security Act, and various provisions in the penal code like ‘sedition' make a mockery of the claims of liberal democratic character of the Indian state. These claims are equally fraudulent and hilarious as the proclamations are made by the representations of the Indian ruling classes in forums like the United Nations, G20, World Economic Forum, etc. The propaganda machines for the neo-liberal exploitation parade India as the largest democracy and an emerging economic power-house. While the fact that more than 77% of the population lives a sub-human existence of 20 rupees a day, the trampling of the human rights of the poor Dalits, women, national ethnic and religious minorities with impunity is the order of the day. Operation Green Hunt is one of the prime examples. The rights provided in the Indian Constitution – like: right to life and dignity, expression, etc., are reduced to cruel jokes on a hapless people. Numerous false encounter killings, custodial deaths/rape, rape of women, gang-rapes, torture, disappearances, etc., are the stark realities of the so-called largest Democracy and Emerging Economic Power.
Recently discovered thousands of unmarked graves in Kashmir are a horrifying testimony of the state of human right to life and the legality of extrajudicial killings, which of course involves both rape and murder.
The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the most draconian legislations used by the Indian rulers to enslave and oppress peoples under the garb of fighting separatism. For the past sixty years the North-East, and for almost two decades Kashmir, both have been virtually under army rule. This rule by the army has had a drastic effect on the daily life of the average citizen residing in the North-East and Kashmir.
There is a state of de-facto abrogation of fundamental rights, including the all-important right to life, and large-scale encroachment by the army on the life and liberty of the citizens in the above-mentioned areas. AFSPA violates the fundamental constitutional rights of right to life, liberty, equality, freedom of speech and expression, peaceful assembly, moving freely, practice of any profession, protection against arbitrary arrest and freedom of religion enshrined in Articles 21, 14, 19, 22 and 25 of the Constitution.
AFSPA has been used in these regions for thousands of deaths, custodial deaths/rape, torture, encirclement of the civilian population, sadistic combing operations, looting of private citizen's property, etc. Thousands of youth have simply disappeared - another euphemism for encounter deaths.
Draconian laws are antithetical to modern democracy since they overturn the fundamental tenets of modern jurisprudence on which democracy rests, viz., a person is presumed to be innocent till proven guilty. The genre of draconian laws thereby makes it difficult for persons booked under it to redress their grievances and get relief, such as bail. It grants extraordinary power to the investigating agencies (police, etc.) to elicit confessions, etc. Thus, the act empowers the investigating agencies to easily frame a person whom they suspect to be guilty.
Provisions of the AFSPA are far more severe. The provisions of the act provide special powers to the Governor, whereby he can at his own discretion (without consulting the duly elected Chief Minister), by notification in the Official Gazette, declare the whole or part of the state or union territory to be disturbed area. Bypassing the duly elected and representative political authority is tantamount to de-facto imposition of emergency.
Unlike other draconian laws, the AFSPA does not stop at providing special powers to the investigating agency to elicit confession and to conduct search and arrest operations. It in fact provides the investigating agency with absolute powers whereby, even a havaldar, if he is of the opinion that it is necessary to fire or otherwise use force, even to the causing of death, can make use of the provisions of the act, thereby, harming the democratic fabric of the country.
More disturbingly, even while it provides the Armed Forces with such absolute powers, it also provides them with immunity from any legal accountability. Even though the acts are in operation in the states and union territories of the country, the elected initiate legal proceedings, let alone administrative, against Armed Forces without prior sanction of the Central Government. (License to Kill, INSAF, 2005)
Provisions of the Act
Section 1 defines the title of the Act.
Section 2(a) limits the jurisdiction of the Act to the seven states of the North-East; of late, it has been extended to Kashmir.
(b) Defines ‘disturbed area' as an area notified under Section 3 to be a disturbed area.
Section 3 states that if the Governor of a State or Central Government is of the opinion that an area is in such a disturbed or dangerous state that the use of armed forces in aid of civil power is necessary, then either of them can declare it to be ‘disturbed area' by notification in the Gazette.
Section 4 gives the following special powers to any Commissioned Officer, Warrant Officer or Non-Commissioned Officer of the armed forces in a disturbed area:
(a) If in his opinion, it is necessary for maintenance for public order to fire even to the extent of causing death or otherwise use force against a person who is acting in contravention of an order prohibiting the assembly of five or more persons or the carrying of weapons or of ‘things capable of being used as weapons'.
(b) If in his opinion, it is necessary to do so, then to destroy any arms dump or fortified position, any shelter from which armed attacks are made or are ‘likely to be made', and any structure used as training camp for armed volunteers or as a hide-out for armed gangs or absconders.
(c) Arrest without warrant any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is likely to commit a cognizable offence and to use whatever force is necessary to affect the arrest.
(d) To enter and search without warrant any premises to make an arrest or to recover any person wrongfully confined or to recover any arms, ammunition, explosive substance or suspected stolen property.
Section 5 makes it mandatory for the army to hand over a person arrested under the Act to the nearest police station with least possible delay.
Section 6 lays down that prosecution, suit or other legal proceedings can be instituted against a person acting under the act, only after getting previous sanction of the Central Government.
Historical Background of AFSPA
The AFSPA gives the armed forces wide powers to shoot, arrest and search all in the name of aiding civil power. It was first applied to the north-eastern states of Assam and Manipur, and was amended in 1972 to extend to all the seven states in the north-eastern region of India. They are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the ‘Seven Sisters'. The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape and looting by security personnel. This legislation is sought to be justified by the Government of India, on the plea that it is required to stop the North-East states from seceding from the Indian Union. There is a strong movement for self-determination which precedes the formation of the Indian Union.
As the great Himalayan range dividing South and Central Asia runs down the east, it takes a southward curve and splits into lower hill ranges. The hills are punctuated by valleys and the valleys are washed by the rivers that drain into the Bay of Bengal. Waves of people settled in these blue hills and green valleys at various times in history. They brought with them cultures and traditions. The new interacted with the old and evolved into the unique cultural mosaic that characterizes the region.
Through the centuries, these hills and valleys have bridged South, South-East, and Central Asia. On today's geo-political map, a large part of the original region constitutes the seven states of the Republic of India, but its political, economic and socio-cultural systems have always been linked with South-East Asia. The great Hindu and Muslim empires that reigned over the Indian sub-continent never extended east of the Brahmaputra River.
India's British colonizers were the first to break this barrier. In the early 19 th century they moved in to check Burmese expansion into today's Manipur and Assam. The British, with the help of the then Manipur King, Gambhir Singh, crushed the Burmese imperialist dream and the treaty of Yandabo was signed in 1828. Under this treaty, Assam became a part of British India, and British continued to influence the political affairs of the region.
This undue interference eventually led to the bloody Anglo-Manipuri conflict of 1891. The British reaffirmed their position but were cognizant of the ferocious spirit of independence of these people and did not administer directly but only through the King.
It was during the Second World War, when the Japanese tried to enter the Indian sub-continent through this narrow corridor, that the strategic significance of the region to the Indian armed forces was realized. With the bombing of Hiroshima and Nagasaki, a disenchanted Japanese had to retreat from the Imphal and Kohima fronts; however the importance of control over the region subsequently remained a priority for the Government of India.
With the end of the war, the global political map was changed overnight. As the British were preparing to leave Asia, the Political Department of the British Government planned to carve out a buffer state consisting of the Naga Hills, Mikir Hills, Sadiya Area, Balipara Tract, Manipur, Lushai Hills, Khasi Hills, and hills in Assam, as well as the Chin Hills and the hills of northern Burma. The impending departure of the British created confusion and turmoil over how to fill the political vacuum they would leave behind. Ultimately, the various territories were parceled out to Nehru's India, Jinnah's Pakistan, and Aung Sang's Burma, according to strategic requirements. As expected, there were some rumblings between the new Asiatic powers on who should get how much.
Compromises were made, and issues were finally settled in distant capitals, to the satisfaction of the new rulers. The people who had been dwelling in these hills and valleys for thousands of years were systematically excluded from the consultation process. The Indian greed of the disputed British colonial cake in this region constitutes the present “Seven Sisters” states of the North-East.
Over the years, local democratic movements evolved as the people aspired to a new social and political order. One important example is a strong popular democratic movement against feudalism and colonialism in Manipur led by Hijam Irabot. After the departure of the British, the Kingdom of Manipur was reconstituted as a constitutional monarchy by passing the Manipur Constitution Act, 1947.
Elections were held under the new constitution. A legislative assembly was formed. In 1949 V.P. Menon, a senior representative of Government of India, invited the King to a meeting on the pretext of discussing the deteriorating law and order situation in the state in Shillong. Upon his arrival, the King was forced to sign under duress. The agreement was never ratified in the Manipur Legislative Assembly. Rather, the Assembly was dissolved and Manipur was kept under the charge of a Chief Commissioner. There were strong protests, but by using violent brutal state repression, the Government of India has been ruthlessly suppressing the democratic movement in Manipur.
The Deception in Nagaland
At the beginning of the century, the inhabitants of the Naga Hills, which extend across the Indo-Burmese border, came together under the banner of Naga National Council (NNC), aspiring for a common homeland and self-governance. As early as 1929, the NNC petitioned the Simon Commission, which was examining the feasibility of future of self-governance of India.
The Naga leaders forcefully articulated the demand of self-governance once British pulled out of India. Gandhi publicly announced that Nagas had every right to be independent. Under the Hydari Agreement signed between NNC and British administration, Nagaland was granted protected status for ten years, after which the Nagas would decide whether they should stay in the Indian Union or not. However, shortly after the British withdrew, the new Indian rulers colonized Nagaland and claimed it to be Indian Territory.
Articulating the democratic aspirations of the people of Nagaland, The Naga National Council proclaimed Nagaland's independence. In retaliation, Indian authorities arrested the Naga leaders. The AFSPA is one of the instruments which the Indian state used to violently suppress the democratic aspirations of the people of North-East.
In 1975, some Naga leaders held talks with the Government of India which resulted in the Shillong agreement - this agreement was forced on them. Democratic forces of Nagaland smelt a rat in this deceptive agreement and rallied the people behind them for the national liberation of Nagas. One of the voices which articulates the democratic demand of Naga people for national liberation is National Socialist Council of Nagaland (NSCN).
Mizoram
In the Lushai Hills of Assam in the early sixties, a famine broke out. A relief team requested for help from the Government of India. But there was little help. The relief team organised themselves into the Mizo National Front (MNF) to liberate themselves from the neocolonial occupation of India. Against the democratic aspirations of the people, the Indian army moved in. This is the only place in India where the Indian security forces actually aerially bombed its own civilian population. The armed forces compelled people to leave their homes and dumped them on the road-side to set up new villages, so that the armed forces would be able to control them. This devasted the structure of the Mizo society. In 1986, the Mizo Accord was signed between MNF and Government of India. This accord was as deceptive as the Shillong Accord made with the Nagas earlier.
Much of this bloodshed and genocides by the Indian state could have been avoided if the Indian ruling classes had listened to the voices of democratic aspirations of the people of Nagaland and the rights of colonized nationalities. This brutal, force accession was based on a feudal, brahamanical and patriarchal notion of the so-called Indian mainstream based on the dominant Aryan brahamanical culture, destroying the cultures and aspirations of national, linguistic, ethnic and religious minorities, in the process eliminating indigenous populations.
Culturally the high caste dominated feudal Indian society is totally incompatible with the ethics of North-East cultures, which were by and large democratic and egalitarian. To make matters worse, the Indian ruling classes forcibly clubbed these different non-feudal ethnic groups with Adivasis cheating them in the name of scheduled tribes and in the process forcing them to be marginalized and stigmatized by the upper caste ruling elites of India.
The languages of the North-East are of the Tibeto-Chinese family rather than the Indo-Aryan of Dravidian like the rest of India. Until the later Eighth Schedule of the Indian Constitution, none of the Tibeto–Chinese languages were recognized as Indian languages.
Politically dependent, the North-East is being economically undermined; the traditional trade routes with South-East Asia and Bangladesh have been closed. It was kept out of the Government of India's massive infrastructural development in the five year plans. Gradually, it became the neocolonial hinterland for exploitation by the Indian state, where local industries were made worthless and now the people are entirely dependent on goods and businesses owned predominantly by those from the Indo-Gangetic plains. The new Indian unscrupulous businesses pull the economic strings of this region.
All the states of the North-East are connected to India by the ‘chicken neck' - a narrow corridor between Bangladesh and Bhutan. At partition, the area was cut off from the nearest port of Chittagong, in what is now Bangladesh, reducing traffic to and from the region to a trickle. The states in the region are largely unconnected to India's vast rail system. Indian ruling classes freely exploit the natural resources of the North-East. Assam produces one-fourth of all petroleum for India, yet it is processed outside of Assam, so the state does not receive the revenues. Manipur, Nagaland and Mizoram are far far behind. In a rough calculation, in the infrastructural development, North-East region lags behind the rest of the country by more than 40%. Even strictly neutral and independent observers have pointed out that in the North-East insurgency and underdevelopment have been closely linked in such a situation that strong-arm tactics will only help to further alienate the people.
The shifting demographic balance due to large-scale immigration from within and outside the country is another source of frustration. The indigenous people fear that they will be outnumbered by outsiders in their own land. Laborers from Bihar and Bengal, who live under rigidly feudal, casteist socio-economic conditions in their own states, are ready for all kinds of menial jobs at much lower wages. As they pour in, more and more local laborers are being edged out of their jobs. Illegal immigration from Bangladesh and Nepal is also perceived as a threat. In Tripura, the indigenous population has been reduced to a mere 25% of the total population of the state because of large-scale immigration from the North-East and Bangladesh.
The Indian states primary interest in the North-East was strategic, and so was its response to problems. A series of repressive laws were passed by the Government of India in order to deal with the rising national liberation aspirations of the people of North-East. In 1953, the Assam Maintenance of Public Order (Autonomous District) Regulation Act was passed. It was applicable to the then Naga Hills and Tuensang districts. It empowered the Governor to impose collective fines, prohibit public meetings, and detain anybody without a warrant.
On 22 May 1958 (a mere 12 days after the Budget Session of Parliament was over), the Armed Forces (Assam & Manipur) Special Powers Ordinance was passed. A bill was introduced in the Monsoon session of Parliament that year. Amongst those who cautioned against such blanket powers to the Army included the then Deputy Chairman of the Rajya Sabha Mr. P.N. Sapru. In a brief discussion that lasted for three hours, in the Rajya Sabha, Parliament approved the Armed Forces (Assam & Manipur) Special Powers Act retrospectively from 22 May 1958.
Enactment of AFSPA From Colonialism to Neocolonialism
After the transfer of power in 1947, the Indian ruling classes enacted draconian laws like AFSPA for the neocolonial exploitation and to suppress the aspirations of democracy and national liberation in North-East. Since two decades, it has been imposed in Kashmir, resulting in thousands of extrajudicial murders, torture, rapes and custodial killings.
My friend Nayan writes – With the so-called de-colonization, India along with its South Asian neighbors, entered a period of socio-economic restructuring, declaring itself a democratic secular republic, whence it sought to self-fashion its path of economic progress and development springing from its backward stagnant agrarian economy. The much trumpeted Nehruvian welfare state was the result - with its techno managerial elite and a vision of socialist tinged, non-aligned path, it was a model that was built on the back of a heavy security-centric approach in its periphery, where resided a population which was to be excluded from this vision, only to be integrated as the ‘other' on the ‘centers' terms whenever it saw fit. Thus it points to the intrinsic link between development, modernization and exclusion which can be almost through a strict militization. The Armed Forces (Special Powers) Act, 1958 or AFSPA, which was a continuation of the Armed Forces (Special Powers) Ordinance of 1942 of British colonial regime, is the clearest instance of this.
North-East India is one of South Asia's most contested spaces. Contestations have taken many forms - from armed opposition to the Indian state, movement for separate federal states and autonomous units based on ethnic lines, to struggles against extractive industries and for more funds from central government. The AFSPA stands almost in centrality of creating spaces for such contestation, with the content of the Act having changed little over the last 50 years and impacting North-East India and South Asia in profound ways. The Act itself stems from the specific context of North-East's integration into post-colonial India emerged out of a dominant mainstream Hindu (even as enshrined ‘secular') Nationalist imagination. Long drawn self-determination struggles, first inaugurated by Naga rebellion who asserted their own independent history, became the defining characteristic of the region which is materially, and ideationally a space distinct from the larger vision of a developing India. While India contains diverse regions and holistic national polity or even a national society however unassimilated, there is a strong belief in both the Indian mainland and in most of the North-East itself, that an unbridgeable binary/gap exists in the two regions. This then makes one understand how a law like the AFSPA with its extraordinary provisions by any measure, persists in India's democratic polity for 52 years.
Disunity as a factor that led to British rule over South Asia had been a part and parcel of the awareness of nationalist awakening since the 19 th century. The trauma of partition at independence accentuated the anxiety of ‘disunity'. Emergence of the post-revolutionary regime in 1949 in China heightened the sense of persecutory anxiety once represented by ‘castrating Muslim plunderers' and ‘bad British-colonial mother'. Thus, long before insurgency became the defining characteristic of North-East, referring to Assam, the land of nationalist Gopinath Bordoloi, and political leadership of Manipur, Sardar Patel wrote to Jawaharlal Nehru, “The people inhabiting these portions have no established loyalty or devotion to India. Even the Darjeeling and Kalimpong areas are not free from pro-Mongoloid prejudices” defining the population clearly as the ‘cultural other'.
While there are other instances of “Merger Agreements” being signed in situations of stress and duress (Jammu & Kashmir) as well as of military intervention (the police action that ended Nizam's rule in Hyderabad in 1948), what makes the Manipur situation unique is the steam-rolling of democratic institutions that the merger represents, the irony of a state (India) which at that time aspired to be a democratic republic, but was not one yet, effectively undermining the foundations of an existing democratic state through a basically military manoeuvre, makes the case of Manipur quite exceptional.
That all this was justified not by reference to the ‘will of the people' of the territories concerned (as was the case with Hyderabad) or by a response to internal aggression (as is said to be the case with Jammu & Kashmir), but by invoking a ‘strategic necessity' is all the more revealing. The reason cited for the decision to ‘take over': Manipur is a ‘border state' and ‘backward', therefore its take over is a ‘strategic necessity'. These were the expressions used by V.P. Menon (then – Home Minister Sardar Vallabhai Patel's able bureaucratic lieutenant, who has been described as the ‘Arch Manoeuverer' of ‘Integration') when referring to the merger of Manipur with the Indian Dominion. The fact that he uses the expression ‘take over' to mean ‘integration' speaks for itself. (Nayanjyoti)
A ‘border state' that is also ‘backward' needs to be ‘taken over' because it is a ‘strategic necessity'. A ‘backward' people need not be consulted about whether they would actually like to be ‘taken over'. A battalion marches in, and a population is told by the armed forces of a state that is still trying to get its own constitution together, that the constitutions that ‘backward' people give to themselves, or the democratic institutions that they evolve in the course of their ‘history', are of no consequence. What is of consequence is the ‘strategic necessity' of the emerging Indian state, trying to live up to the imperatives of its imperial inheritance ( see Bimol Akoijam - Another 9/11, Another Act of Terror - The ‘Embedded Disorder' of the AFSPA).
Writing further about the nature of AFSPA, Nayan says:
A cursory reading of AFSPA reveals that the Act is an act of legitimizing the involvement of the military in the domestic space, not supplementing by replacing ‘civil power'. The military character of the Act is reflected in multiple ways. AFSPA allows ‘use of armed forces', defined as ‘military forces and the air forces operating as land forces' and ‘any other armed forces' of ‘the union' (Section 3) in the domestic space.
Section 2(c) of the Act also clearly shows the close affinity between AFSPA and those laws governing the military, such as the Army Act (1950). It reads, “All other words and expressions used herein but not defined in the Air Force Act, 1950, or the Army Act, 1950, shall have the meaning respectively assigned to them in those Acts”.
In six sections, being one of the most shortest Acts to be passed in the history of the Indian legislation, it unmasks the military paradigm involved. For example, what constitutes the ‘disturbed and dangerous condition' for an area to be declared a ‘disturbed area' in not defined at all (Section 3). All that is required, is that an area be declared as a ‘disturbed area'. It is as good or bad as declaring war, once it is so declared, what it means is clear. In fact, the principle of war is unmistakable here. Just like declaring war, once an area is declared as ‘disturbed area', the personnel of the ‘armed forces' simultaneously acquire powers to us ‘force as may be necessary' based on their ‘opinion' and ‘suspicion' to effect ‘arrest without warrant' or ‘fire upon or otherwise use force, even to causing death'. (Section 4).
Also, unlike assumption of innocence of a ‘suspect' or ‘accused' in the domestic space, hostile intention of the inhabitants of the alien and hostile space is taken for granted for the military personnel. Thus, the ‘opinion' and ‘suspicion' of the commanding officer of a military formation serves as the basis for exercising power to ‘fire upon or otherwise use force' which he thinks is ‘necessary' not only to ‘search any premises or destroy any shelter and structure' but also ‘arrest or even to causing death'. (Section 4).
The presumption of hostile intent as the legitimate basis for the ‘armed forces' to take action, characteristic of a war zone, is highlighted when these powers can also be exercised for acts that are ‘likely to be made' or ‘about to be committed'. Besides, the nature of the power conferred upon the armed forces, the fact that commanding officers are given the power to judge and execute action on his own, only proves that the Act is based on the business of war. In a ‘war situation', any officer - irrespective of whether he is a Commissioned, Junior Commissioned or Non-Commissioned Officer - leading his men in the field has to be the judge as well as part of the body that executes his judgments. In the context of ‘maintaining law and order' within the domestic space, the same person or body cannot be the judge as well as the one who executes the judgment.
Moreover, ‘the soldiers' operational space, that is ‘alien and hostile', is a relatively undifferentiated space and it does not require elaborate conditions and procedures as in the case of the differentiated domestic space. Hence, unlike other Acts (including the erstwhile POTA) which provide explicit conditions and elaborate procedures running into pages, AFSPA is hardly a one-page Act with six sections. All that the Act requires is to restate the assumption of taken-for-granted hostile intent (based on ‘opinion' and ‘suspicion') of the inhabitants of the alien and hostile space (‘disturbed') to exercise the power to eliminate, destroy or neutralize the latter (Section 4).
AFSPA does not have any provision for interrogation and/or gathering evidence. Nor is it like any other so-called ‘special laws', meant to ‘facilitate' trial or ‘enhance' conviction rate. It is plainly an instrument of war empowering the military and forces operating under it to eliminate, neutralize and destroy the enemy or ‘suspected enemies', which more often than not practically include everybody residing in the ‘disturbed area'. Enough instances are there to show that civilians in a ‘disturbed area' are also inherent targets under the Act.
Civilians are always at the receiving end of the Act, as in any other war zone in alien territory forming part and parcel of the ‘collateral damage' thus making indiscriminate firing and killing of civilians, including women and children, by security forces intrinsic to the use rather than deployment of the military, in concrete terms insurgency has spread and thrived in the North-East. This begs the question: What has the military been doing all these decades and how has AFSPA furthered counter-insurgency? Such questions, along with subversion of democratic institutions and principles through prolonged and continuous deployment of the armed forces under AFSPA, raise questions of militarism i.e., a ‘phenomenon by which a nation's armed services come to put their institutional preservation ahead of achieving national security or even commitment to the integrity of the government structure of which they are a part, which goes far beyond the idea of the military or use of military per se in counter-insurgency.'
Interestingly, it was observed that American troops deployed and engaged in actual combat in the recent Iraq war primarily came from the American soil, not from its military bases in foreign countries. In this sense, the ‘American network of (military) bases is not a sign of military preparedness but of militarism'. In a similar sense, continuous enforcement of AFSPA and deployment of troops under the Act seem to serve as a reminder of a ‘presence' rather than ‘combating' the insurgency per se in the region. The columns of ‘armed forces' during ‘combing operations' and troops patrolling the streets, towns and villages have not restricted the activities of the insurgents who are as active as, if not more than, they were twenty years ago. But these movements and activities of the ‘armed forces' definitely convey the presence of the might of the Indian state to the people. This reminder is also communicated in frightening dimensions by the so-called ‘excesses' in which men, women and children are killed in ‘retaliation' to attacks on the ‘armed forces' by the ‘insurgents'. More than being cases of ‘human rights abuses', those ‘excesses' for which no accountability can be fixed on anybody are reminders of the militarism that has subverted the democratic institutions and ethos in the North-East. ( See Nayanjyoti: Integrate, Develop or “Shooting-to-Kill on Suspicion” in a South Asian Periphery, the Armed Forces (Special Powers) Act in North-East India. Term paper submitted by Nayanjyoti to CSSS/SSS/JNU.)
IROM SHARMILA'S STRUGGLE AND HER BODY AS A SITE OF CONTESTATION
“Indian Army Rape Us” read the banner which the women were holding when they protested against the murder and death of Manorama Devi in front of Army Headquarters in Imphal (Manipur) in the year 2004. Thangjam Manorama, a Manipuri woman, was raped and murdered by jawans of Rashtriya Rifles in July 2004. Testifying before the (retired) Justice Upendra Inquiry Commission, instituted to probe the circumstances leading to the death of Ms. Manorama, her bereaved mother said that around seven or eight personnel of the Assam Rifles (AR) violently entered their house in the intervening night of July 10 and 11, and one of the personnel pointing his gun at her, asked about Ms. Manorama. “At that point of time, Manorama came out of her room and the AR men pounced on her and took her towards the verandah”. She further said that Manorama was dragged outside the house and the personnel severely beat her up, and that she could hear the ‘muffled voice' of her daughter. After sometime, the personnel brought Manorama back into the house. At this time, the mother said that Manorama “was clutching her phanek (a sarong-like traditional garment worn by Manipuri women) with her left hand”, and that her “shirt was unbuttoned”. The personnel made out an arrest memo and got Manorama's mother to put her thumb impression on the memo. Before taking her away, the personnel allowed Ms. Manorama to change into a new phanek and shirt. The mother said that the lifeless body was discovered at Yaipharok Manik village the next morning. The autopsy on Manorama's body was conducted at the Regional Institute of Medical Sciences hospital in Imphal, the state capital, after the Irilbung police picked up her body. Testifying before the Upendra Commission, the doctors who conducted the autopsy confirmed the presence of semen on the undergarments of the victim, and more than half a dozen bullet injuries, including the genitals.
The spokesman of the security forces, while claiming ‘responsibility' for the ‘killing of a hard core PLA cadre', stated that they had acted on the basis of ‘specific information' about the presence of PLA cadres at Bamon Kampu area. They went on to state that, on this basis, an “AR team rushed to the area and apprehended Manorama. During interrogation, she disclosed that she possessed an AK-47 rifle and was willing to take the army personnel to recover the weapon. However, on the way, she was gunned down by the AR personnel as she made a bid to escape by jumping down from the army vehicle. One radio set, hand grenade and some incriminating documents were recovered from her possession.”
On the face of it, these accounts seem no different from the familiar stories that emanate from the ‘normal' world of counter-insurgency operations in the North-East.
The bereaved mother's statement could have been any ‘unofficial' account, made only to be delegitimised by official spokesmen as ‘baseless allegations' made by vested parties against the patriotic soldiers of the Indian security forces fighting the ‘enemy within'. The post-hoc statements of the army officials would have been the final say on the ‘official' reality of the situation on how they have eliminated an ‘enemy'.
This time, however, there was a ‘Freudian slip' that revealed the inner reality beneath the normality of hitherto familiar counter-insurgency narratives in the North-East. Havaldar Suresh Kumar of the Assam Rifles, who signed the arrest memo, inscribed on the memo that Ms. Manorama was being arrested as a ‘suspect' and that nothing had been taken from her house or her person.
There is no legal ‘absurdity' in the killing of Ms. Manorama under the AFSPA. What does ring hollow is the incredulity of a narrative that features a group of armed men of the mighty India military having necessarily to fire more half-a-dozen bullets in order to subdue a women dressed in phanek while she was allegedly trying to escape from them by jumping down from their vehicle, and that too late at night. Havaldar Suresh Kumar's inscription on the arrest memo says that nothing was recovered from her - meaning she was un-armed. The post-hoc statement by the spokesman of the security forces, on the other hand, mentions the recovery of a ‘hand grenade', a ‘radio set' and ‘incriminating documents' from ‘her possession'.
The death of Manorama opened out issues that became too unpalatable for the brutalized people of Manipur.
Indeed, for many, this was the last straw. Venting decades of suppressed rage, a group of prominent women in the community protested by disrobing and staging a “Naked Protest” in front of the Assam Rifles Headquarters in the heart of Imphal City. They shouted, “Rape us, kill us, take our flesh”, while attempting to break open the gate of the AR Headquarters. In immediate response, an indefinite curfew was imposed in Imphal and the surrounding areas ( see Bimol Akoijam - Another 9/11, Another Act of Terror - The ‘Embedded Disorder' of the AFSPA).
The rape and murder of Manorama is not an isolated case, but thousands of these kinds of sexual assaults and murders happen to the women in the North-East every day since the past sixty years.
The Indian state and its killing machines use the body of the women in these areas to exercise the control on behalf of the Indian state.
Irom Sharmila has been on a fast for the revocation of AFSPA since 11 years; her body also has become a site of contest for legality and illegality of the Indian state. Indian state, whose constitution guarantees right to life and liberty, also kills, rapes and murders thousands of women every passing year. Irom Sharmila has been arrested, rearrested and force-fed many times ostensibly to make her live, this was done by the authorities to stop her from dying - invoking the attempt to suicide of the Indian penal code.
On the other hand, Indian security forces go on killing, raping and torturing women every day.
This exposes the farce of legality of the Indian system which has been imposed on the body of Irom Sharmila.
The 39-year-old Manipuri is about to complete 11 years of a hunger strike in protest against AFSPA that gives security forces powers to kill with impunity. The UPA promised as far back as 2004, to replace the act with a ‘more humane' law but has shown little interest in taking up the task in the face of opposition from the internal security establishment. Union Home Minister P. Chidambaram recently admitted there was no consensus within the Government on the issue. Ms. Sharmila's fast began on 3 rd November 2000, a day after security personnel shot down 10 people at a bus stand just outside Imphal. Within days, she was detained by the police. Since then, she has been nasally force-fed a liquid concoction of nutrients in a hospital, which serves as her prison. After every year in detention, she is released for a day and rearrested for attempting to commit suicide - because she refuses to call off her fast until the government repeals the legislation, which is in force in Manipur, Assam, Nagaland and parts of Arunachal Pradesh, besides Jammu & Kashmir. Hers may be the longest hunger strike in recorded history but it has generated little or no interest outside Manipur. In recent days, the attention Ms. Sharmila has received in the wake of Anna Hazare's anti-corruption hunger strike has served to highlight her personal life. She comes out as a resolute but lonely woman, caught between her iconic importance to the struggle against AFSPA and her human desire to lead a normal life, therefore making her struggle an epic struggle in modern Indian history.
CONCLUSION
“In fact, by legitimizing the use of military force in the internal affairs of the state beyond what is already provided in the Criminal Procedure Code and the provisions of emergency in the constitution, AFSPA seeks to supplant rather than supplement civil authority with military authority in the administration of everyday life. There is no question that if exigency demands, the State, under the Indian constitution, can always promulgate an ordinance to use its military might to deal with that exigency. But to convert such an ordinance into a regular law that stays in place for almost half a century is to entrench a military structure and ethos in the polity and structure of the state. It sets into motion the process of reproduction and appropriation of the military structure and ethos by other instruments of the State (the paramilitary and police) as well as civil society itself. Ultimately, it leads to a complete subversion of the basic foundation of society and polity. It blurs the necessary distinctions between the police and the military, between the civilian and the combatant, and between ‘domestic' and ‘alien' space. This is what has happened in Manipur.” (Bimol Akoijam)
As Bimol Akoijam says, the single Act AFSPA has given rise to a plethora of ‘acts of horror', like the thousands of murders, rapes, custodial deaths/rapes, disappearances, torture, encirclements, combing operations and genocides. Recently discovered unmarked graves in Kashmir are a chilling testimony to these hard realities of everyday living in Kashmir and North-East.
The list of such acts in the North-East is long, but to name a few well-known cases, from 1980 onwards, they include the massacres of civilians at Heirangoithong (Manipur) in 1984; at Regional Institute of Medical Sciences (RIMS Manipur) in 1995; at Malom (Manipur) in 2000; the horror of army torture and violence on civilians during Operation Blue Bird (Manipur) in 1987 and Operation Rhino (Assam) in 1991; indiscriminate firing on civilians by armed forces personnel when a tyre of their own vehicle burst in the town of Kohima (Nagaland) in March 1995; the shelling and destruction of the town of Makokchung (Nagaland) in 1994; the enforced disappearances of Loken and Lokendro (Manipur) in 1980; and the rape of Miss N. Sanjita [who subsequently committed suicide (Manipur)] in 2003.
I would conclude by stating a fact-finding report-cum-demand by SAHELI-PUDR fact sheets.
SAHELI and PUDR Fact Sheets and Demands
Outside the North-East too, human rights violations in Jammu & Kashmir under the AFSPA are commonplace, including disappearances, torture, arbitrary killings and numerous instances of mass rape of Kashmiri women by security forces.
AFSPA: Constitutional Contradictions
The large-scale violations of fundamental rights in the north-eastern states is a direct consequence of the provisions of the AFSPA, of areas declared as Disturbed Areas under Section No. 3 and the simultaneous acquiring of wide powers by army personnel under Section 4 of the Act.
The AFSPA which grants armed forces personnel the power to shoot to arrest, search, seize and even shoot-to-kill, violate the Right to Life enshrined in Article 21 of the Constitution of India which guarantees the right to life to all people.
The AFSPA also violates the International Covenant on Civil and Political Rights (ICCPR). India signed the ICCPR in 1978, taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens. In particular, the Act is in contravention of Article 6 of the ICCPR guaranteeing the right to life.
Crucially, the AFSPA effectively undermines civil authority. For instance:
After the Oinam incident (1987) the Chief Minister wrote to the Union Home Minister, “The civil law has, unfortunately, ceased to operate in Senapati District Manipur due to excesses committed by the Assam Rifles with complete disregard shown to the civil administration….the Deputy Commissioner and the Superintendent of Police were wrongfully confined, humiliated and prevented from discharging their official duties by the Security Forces”. And consequent to the Kohima incident in 1995, even the Superintendent of Police, Kohima, was stopped at gun point by army personnel.
At the same time, the AFSPA is an emergency legislation that constitutionally requires to be reviewed every 6 months. Yet it has been imposed in Manipur and other states of the North-East for years on end, which contributes the misuse of unbridled and arbitrary powers by the armed forces.
END THE LAW THAT GIVES THE ARMED FORCES IMMUNITY FOR RAPE, MURDER, TORTURE AND OTHER HEINOUS CRIMES.
END THE ARMED FORCES (SPECIAL POWERS) ACT, 1958
The Armed Forces (Special Powers) Act, 1958: A Fact Sheet
[A fact sheet adapted by the SAHELI and PUDR team from earlier reports and submissions to the Jeevan Reddy Committee]
Over the last five decades, heavy militarization in the North-East has taken its toll on normal civilian life and led to innumerable instances of violations committed against the civilian populations there. Encounter deaths, extrajudicial killings, disappearances, arbitrary arrests, rape and torture have been a regular feature among the relentless series of atrocities meted out to the people by the army with impunity, especially in areas where they are protected by legislations like AFSPA.
Some of the most widely known incidents of such excesses in the North-East are:
· Army torture and violence against the villagers of Oinam (Manipur) in 1987 who were detained in army camps, beaten mercilessly, given electric shocks. At least 3 women were raped, 15 villagers killed, and many left permanently disabled.
· The gang-rape of the women of Ujanmaidan (Tripura) by security forces.
· The terror wreaked by the army in Assam during Operation Rhino in 1991.
· The shelling of the town of Ukhrul (Manipur) with mortars in May 1994 by the Assam Rifles when they violently ransacked the town, leaving many homes damaged, over a hundred men and women bleeding with serious injuries and 3 dead.
· Four women raped at gunpoint, and homes and shops set on fire by the Maratha Light Infantry, killing other people in December 1994 in Mokokchung (Nagaland).
· Indiscriminate firing on civilians and combing operations by the combined forces of the 16 th Rashtriya Rifles, CRPF and Assam Rifles when a tyre of an army jeep burst in the Kohima town (Nagaland) in March 1995.
· Torture, forced detaining, starvation, sexual assault of women and looting in the 5 villages of Namtiram (Manipur) in 1995 by the 21 st Rajputana Rifles.
· The army's reign of terror in Jesami (Manipur) in January 1996.
· The rampage of the village of Huishu (Manipur) by the Assam rifles in March 1996.
· The massacre of 10 innocent civilians by the Assam Rifles in Malom (Manipur) on 2 nd November 2000 by security forces.
· The torture, rape and killing of Thangjam Manorama in Imphal (Manipur) in 2004.
REFERENCES
1. A. Bimol Akoijam – Another 9/11, Another Act of Terror - The ‘Embedded Disorder' of the AFSPA.
2. Nayanjyoti – Integrate, Develop or “Shooting-to-Kill on Suspicion” in South Asian Periphery – Term paper submitted to CSSS/SSS/JNU.
3. End Army Rule - Committee for the Repeal of the Armed Forces (Special Powers) Act, Delhi.
4. An Illusion of Justice - PUDR Delhi 1998.
5. Licence to Kill – INSAF, Delhi 2005.
6. Fantasies of Development and The Democracy Deficit in North East India by Sanjib Baruah.
7. An Analysis of Armed Forces Special Powers Act, 1958 - PUCL and Asian Centre for Human Rights.
8. Manipur in the Shadow of AFSPA.
9. Love in the time of AFSPA. Hindu editorial.
10. Poem on Sharmila by Kamayani Bali Mahabal - Movement of India.
11. SAHELI–PUDR Fact Sheet on Human Rights abused in North-East.
Asit Das blogs at www.revolutionarynucleus.blogspot.com e-mail id: [email protected]
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