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RIGHT TO RAPE?

The Armed Forces (Special Powers) Act (AFSPA), which provides immunity to India’s soldiers for acts committed in the line of duty, has been under fire for years. Critics say that the law allows security forces to get away with no end of brutality. While the government occasionally mulls repealing the act, without following up on it, one issue has been receiving a lot of attention in recent months — the way soldiers who commit violence against women also manage to hide behind its protective clauses.

Rashida Manjoo, UN special rapporteur on violence against women, its causes and consequence, in her country report on India submitted last month, recommended the repeal of AFSPA and held, “On the issue of conflict-related sexual violence, it is crucial to acknowledge that these violations are occurring at the hands of both state and non-state actors. The Armed Forces (Special Powers) Act and the Armed Forces (Jammu and Kashmir) Special Powers Act… protect the armed forces from effective prosecution in non-military courts for human rights violations committed against civilian women, among others, and it allows for the overriding of due process rights.”

The courts have also been weighing in on the issue. In April the Supreme Court ruled that two BSF personnel accused of killing a Kashmiri teenager in 2010 should be tried in a criminal court. It held that the provisions of the AFSPA could not summarily replace general laws, and that all such cases need not be tried in a defence services court.

The Supreme Court has also asserted that the AFSPA’s protection was limited to acts conducted in the line of duty. Rape and murder were “normal crimes” that should be prosecuted in criminal courts, it said.

But perhaps the most significant development in this regard took place earlier this year when the Justice J.S. Verma Committee looking into legal reforms related to violence against women called for a review of the AFSPA. It noted that “impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimised by the AFSPA” and “women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country.” The committee also recommended that “special care must also be taken for the safety of complainants and witnesses in cases of sexual assault by armed personnel”.

But while the central government adopted many of the Verma Committee recommendations in a subsequent anti-rape bill, it left out those related to the AFSPA. This has left activists infuriated. “The Government of India sees sexual assault against women in the Northeast as collateral damage,” says Binalakshmi Nepram, founder, Manipur Women Gun Survivors Network. In the last 18 months Nepram’s organisation has documented 200 cases of violence against women in the region, of which 30 per cent was perpetrated by defence personnel, she claims.

Nepram says an attempt to get information about the number of cases of violence against women allegedly by armed forces through the Right to Information Act was thwarted by the central government on the ground that it would breach national security.

Drawing from the colonial Armed Forces Special Provisions Ordinance, 1942, which was used to quell the Quit India Movement, AFSPA was introduced in 1958 in Nagaland to fight the Naga secessionist movement and was later applied in Manipur and Jammu and Kashmir, and some other parts of the Northeast.

AFSPA’s special provisions give the security forces unbridled powers to raid without evidence or warrant and use force, even fatally. Both commissioned and non-commissioned personnel have immunity under Section 6 of this act. And prosecution can be initiated only if the Government of India sanctions it.

Activists say that the armed forces abuse the law to rape and abduct women with impunity. “Violence against women is three times more in our area. They can rape and kill and we can’t even go to court,” says Nepram. “What’s more, the charges of rape are not recorded. Not a single soldier has been tried or prosecuted.”

Many legal experts too feel that willy nilly the AFSPA lets security forces get away with human rights violations in general and rape and violence against women in particular. Says Colin Gonsalves, senior advocate in the Supreme Court and founder of the Human Rights Law Network, “Crimes committed by men in uniform which are not connected with their duties should not come under the immunity clauses of laws such as the AFSPA. The situation today is that even for the rape and killing of a person in custody, which does not involve public duty at all, the offenders go scot free.”

As has happened in the infamous case of Thangjam Manorama, who was picked up by jawans of the Assam Rifles on suspicion of being a militant in Manipur in 2004. Manorama’s body was found later –— raped and riddled with bullets. The unspeakable brutality of the crime led a group of Manipuri women to shed their clothes in protest. The case was re-opened in 2010 but there have been no convictions so far. This despite the fact that a retired judge who headed the enquiry into the incident found 12 incidents of excesses by troops.

At a seminar on “Armed Forces (Special Powers) Act: National, People’s and Women’s Security”, at Mumbai University’s Centre for Women’s Studies recently, panelists noted that “till now not a single Army or paramilitary officer or soldier has been prosecuted for destruction of property or murder or rape,” reveals Ritu Dewan, the seminar’s co-convener.

Vahida Nainar, co-author of Pursuing Elusive Justice: Mass Crimes in India and Relevance of International Standards, and one who has worked on issues of gender justice at The Hague and New York, lists some of the international standards that India should align itself with. “If the Army is deployed to fight armed groups in any region for a prolonged period, the region should be defined not as a ‘disturbed’ area but as an ‘internal war or conflict’ area. Consequently, the Army and the militant group should be subjected to Article 3 of the Geneva Convention, which provides that any criminal act by defence personnel should be tried in civilian courts.”

Moreover, it should be specifically stated that sexual assault is never part of the official duty of the Army and any personnel accused of such violence will be tried in civilian courts, she adds.

While the government dithers over whether or not to repeal the AFSPA, the least it can do is to make sure that the armed forces do not get protection under it for violence against women — an offence that simply cannot be justified as having been committed in the line of duty.