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AFSPA’s Impunity: Vitiating Democracy

By Ravi Nitesh

16 May, 2016

Though there are few adherents who advocate for its ‘necessity’, Armed Forces Special Powers Act (AFSPA) seems an abortive effort of government on the name of curbing insurgency and has been proved as ‘failed act’.

AFSPA provides extra-ordinary powers to security personals, operating in ‘disturbed areas’. To deploy forces with such arbitrary powers, disturbed areas are notified and in line with this act, these disturbed areas are presently falling in J&K (under AFSPA 1990) and in North East States (under AFSPA 1958). No other Indian state has this act in force.

With the powers under AFSPA, ‘a security personal can shoot someone on mere suspicion’ as per power granted in section 4 of this act and its section 6 states that ‘no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of Central Government, against any person in respect of anything done or purported to be done in exercise of powers conferred by this act’.

In a common note, hundreds of incidents of human rights violations, ranging from torture to rape and killing have been made through (mis)using this ‘impunity’ granted to security personals. Many protests have had happened against such human rights violations and still organizations and individuals are raising voice against this act in their capacity. Just a few days ago, a Member of Parliament also raised voice in Parliament on the issue.

It is also a fact that despite hundreds of cases of such human rights violations documented and reported in AFSPA imposed regions, none could get justice. Even in cases that got highlighted through media and human rights campaigns and also in cases where even Apex court intervened and government agencies like CBI investigated the case and found security personals as guilty, nothing could be done to punish them. Their ‘impunity’ is such that on the same crime where a common person may get life term and even death under IPC sections through trials in civilian courts, security personals may not get even a month jail. It is also told that instead, they continued with their job.

Sometimes, when case becomes too strong to control people’s anger, state governments also try to get permission for inquiry and lodging case against accused security personals, but after having data given by Defence Ministry of India, it seems that even democratically elected state governments fail. At times, when even state governments, after sent cases to central government for granting sanction of prosecution against accused, it could not be worked out well.

When in Rajya Sabha, question no 59 was answered by Ministry of Defence on 24.02.2015, Mr. Manohar Parikkar stated that total 38 requests for sanction of prosecution have been received under Armed Forces (Special Powers) Act (from 16.06.1991 to till date).

Out of 38 cases received, sanction has been denied in 30 cases and 8 cases are still pending. Year and State-wise details of these pending cases shows that these 6 cases are from J&K [J&K: 1993: (1 no.), 1996 (2 no.), 1998 (01 no.), 1999 (01 no.), 2000 (01 no.)] and 2 cases from North East States [ 2008 (01 no.), 2010 (01 no.)] . With the statement, it is clear that no sanction was given by government in a single case at least since 1993.

With such a situation, where not a single sanction was given on requests of state governments, it seems that centrally deployed security forces have indirectly took over the democratically elected state. The intensity of ground situation can be understood with this fact and struggle of common persons can be imagined.

AFSPA has caused a serious damage to reputation of army itself. It is a fact that all army personals cannot be in one tone to wear AFSPA and do whatever. But it cannot be ignored that there are personals who did it and that resulted a loss to people of the region. Also, with the traditional impunity, it is seen that no punishment was awarded to security personals even if they did wrong, and it has probably pushed many more among them, to act without thinking of its results.

With the time, many families of J&K and North East received such sufferings that even cannot be told. An everyday psychological pressure about ‘safety’ also runs in minds of people, whenever their family members are out of home. These are places where children are exposed to every day stories of deaths, torture, rape, bullets, shells etc.

Though the act is in operation since more than decade, it is a failed act, as told by government panels, police officials and activists. Even many within the army team advocated for its revocation or atleast review and replacement with more humanitarian law.

In the line of AFSPA, UPA and NDA both have adopted same line till now. A new government in J&K under PDP-BJP collaboration as well as demands of BJP state leadership of Manipur and even of few other MPs from AFSPA imposed regions of J&K and North East, could not bring any change in mind of central government yet.

Central government should take note of review panels of governments and in view of many other recommendations from national and international human rights organizations, including of UN and to take steps of revoking this act. By doing this, it may bring a confidence on the hearts and minds of hoi polloi.

Ravi Nitesh is Human Rights Activist, Convener- Save Sharmila Solidarity Campaign (for Repeal AFSPA), Freelance Writer




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