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By DOCUMENT Excerpts from the Asian Centre for Human Rights? 2005 representation to the Committee to Review AFSPA TO BE CONCLUDED
  • Published 26.04.05

Modelled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on August 15, 1942 to suppress ?Quit India Movement?, the Armed Forces Special Powers Act of 1958 was initially supposed to have remained in operation for one year to tackle the Naga problem. However, after 45 years of imposition of the AFSPA, the Naga problem is far from resolved. The government of India and Naga armed opposition groups ? both Isaac-Muivah and Khaplang factions of the National Socialist Council of Nagaland ? have been engaged in a peace process since July 1997. The peace process stresses the axiom that political problems cannot be resolved by merely terming them as law and order problems...

There is no doubt that a large number of armed opposition groups operate in Manipur and elsewhere in the North-east and that they have been responsible for gross human rights abuses. Yet, unlawful law enforcement only begets contempt for the rule of law and contributes to a vicious cycle of violence. The unusual form of demonstration by some members of the Meira Paibis who stripped themselves in front of the Kangla Fort on 15 July 2004 was an act of desperation to protest against the systematic denial of access to the right to life...

A reckless approach towards human life and liberty in the last 45 years under the AFSPA has been counter-productive and caused alienation of the people in the North-east. The review of the AFSPA is overdue for many reasons.

First, the AFSPA has manifestly failed to contain, let alone resolve, all insurgency problems in the North-east. When the AFSPA was imposed on September 8, 1980, there were only four armed opposition groups in Manipur... However, today there are over two dozen armed opposition groups...

Second, there are adequate laws to deal with insurgency situations and the non-state actors. While India did not have specific laws in 1958 to deal with armed opposition groups, it has subsequently adopted numerous draconian laws such as the Terrorist and Disruptive Activities (Prevention Act), 1985 and the Prevention of Terrorism Act , 2002. After the lapse of these laws, the government of India amended the Unlawful Activities (Prevention) Act of 1967 in December 2004 to incorporate the provisions of the POTA. The Unlawful Activities (Prevention) Act of 1967 as amended in 2004 is adequate to deal with all insurgent groups and their unlawful activities.

Third, the strength of any country claiming itself as ?democratic? lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences... and punishment for breaches of such provisions...; and not in providing arbitrary powers to the law enforcement personnel to be law unto themselves. The AFSPA violates the basic tenets of criminal justice system... First, it provides special powers which is tantamount to awarding heavier penalty to the suspects than convicted persons would get under normal court... Second, non-application of the due process of law makes the armed forces to be their own judge and jury. Most importantly, by giving virtual impunity to the armed forces under Section 6 of AFSPA which makes it mandatory to seek prior permission of the Central government to initiate any legal proceedings, the executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious, abusive or frivolous.