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PUCL Bulletin, November 2006

The Armed Forces Special Powers Act, 1958

-- By K G Kannabiran

Former Supreme Court Judge is all over the news. The Committee headed by him appointed to Review the Armed Forces Special Powers Act 1958 has submitted its report and two well-known journalists, Siddharth Varadaraj and Sanjay Hazarika, commended it for acceptance.

This is a repeat legerdemain of the same trick which was performed by repealing the Prevention of Terrorist Act We should recollect the UPA’s Manifesto. This Manifesto had the support of the parliamentary left. They promise the electorate to repeal POTA, not because the constituents of the UPA disagreed with it but because a communal party in power and which had no faith in secular values passed it.

The Ruling Alliance, as pr it election promise repealed POTA by legislating a Repealing Act and to give it a touch of liberal top dressing made a provision of reviewing of pending cases under POTA. But then in 2004 they introduced the provisions “lock stock and schedule” in to the Unlawful Activities Prevention Act 1967. This was confined to banning organizations because Independent India did not have their own law on the post Independence Statute Book. When we repealed POTA we were aware of the International compulsions with reference to war on Terrorism. After 9/11 we did not have that legislative sovereignty to dispense with a law on terror. North Eastern region was totally under the occupation of Armed forces from the inception of Indian Independence.

Without going into too much of history the present Prime Minister who wanted to start with a clean slate appointed a Committee to look into the much maligned Armed Forces Special Powers Act and the various Disturbed Areas Acts etc. He appointed Former Supreme Court Judge and former Law Commission Chairman Mr. Jeevan Reddi as the Chairman with four others to assist him in his endeavours to find a solution to long standing peoples’ problems in the North East. And as usual we always try to resolve peoples’ problems by producing a rehash existing repressive laws. This what the Jeevan Reddi Committee Report did.

The Report is divided into five parts. The first part introduces the problem that has to be tackled. The second part deals with the legal and Constitutional aspects the High Power Body as this one has to deal with. The third part deals with feed back the Committee received from the “Civil Society” Groups in the North Eastern Region. The Committee visited Guwahati on Feb 9 and 10, 2005. There was a general complaint against Army High Handedness and the personal experiences were narrated. Mr. T C Mazumdar, after narrating the humiliating treatment he suffered at the hands of the Army he unequivocally urged for the repeal of the Armed Forces Special Power Act. He also opined that Unlawful Activities (Prevention) Act 1967. The Bar Association President pleaded for the repeal of the Special powers Act. A section of the people wanted withdrawal of Armed Forces, the other section wanted the Army to stay and fight the insurgency. One official version is for the retention of the Special Powers Act by some modifications may be considered.

In Dibrugarh the Committee were told by scholars, businessmen and the Vice Chancellor described the Special Powers Act as discriminatory and anti people In Meghalaya the Peoples Human Rights Council of that state declared that AFSPA has failed to contain insurgency and they pointed out that there are otter Acts in force like the Unlawful Activities (Prevention) Act 1967 that has been amended in 2004 to deal with terrorism.

In the Committee’s interaction with NEHU the academicians who interacted with the Committee were quite definite that the AFSPA should be withdrawn and that there is a need to end the discriminatory treatment.

The Committee met with people from Nagaland in Kohima. People’s organizations and mothers organizations complained of the privations suffered from the Army. All of them in one voice said that they do not need the AFSPA and they can do very well without it and India being a large democracy the laws I it arsenal are sufficient to manage the problems posed these areas. In Arunachal Pradesh the officers and not many citizens seem to have met the Committee.

In Delhi a meeting was held and as always being removed from the storm centre one is put on the defensive while debating about North East. Insurrection, Kashmiri militancy and terrorism and the desire to be acceptable pre occupies the minds of Intellectuals.

We need not go into the view of officials because we are basically concerned with peoples’ experience of the enforcement of AFSPA. Courts and judges may not be concerned with the abuse of law. They will tell you that a law cannot be struck down because of the possibility of abuse. People the government that is sworn to protect their cannot disclaim such responsibility. Unanimous opinion is that AFSPA should be scrapped. The anger is not confined to that statute only. That in our view would be a limited understanding of the peoples’ views. For around fifty years the Army ruled people in these regions. Merely because they named the Act it does not follow they will not mind an equally bad piece of legislation in its place or even another repressive law in its place. Before the Committee a few said there is this Unlawful Activities Prevention Act 1967 as amended by the Act of 2004, but does it mean that people have preference to that Act ? Or does it mean that their views and their experiences suffered in the abuse of law and governance have no relevance. We have not yet entered the phase of experience of the application and abuse of the Unlawful Activities (Prevention) Act. In fact POTA was smuggled in so surreptitiously that nobody noticed this transmigration of POTA in the Unlawful Activities (Prevention) Act for long time for L K Advent was so proud of being the Architect of that Terrorist law he was wailing for its absence even as late as the recent Mumbai blasts.

All this time he was not aware that Dr Man Mohan Singh stole the thunder. Even before this Committee in its hearing at Delhi, that meticulous human rights jurist in a memorandum submitted by her argued that if POTA could be repealed why not AFSPA? Of course she overlooked the fact that already POTA had transmigrated into the Unlawful Activities (Prevention) Act. .

The Committee after setting out the views of the people did not evolve a more democratic and political method of resolving the problems of these States in the North East. It did not call for expertise on working out pluralist democracy among the various ethnic and tribal groups. We have tried these repressive methods for five decades and more and one need not trouble a distinguished Supreme Court Judge to do the job of a legal draftsman. That certainly was not what he was trained for. This ULP is in force all over India and the organizations in the North East are already covered by the various provisions of the Act and Schedule as well. The Committee says “a major consequence of the proposed course would be to erase the feeling of discrimination and alienation among the people of the North Eastern states that they have been subjected to, what they call, “draconian” enactment made especially for them. The ULP Act applies to entire India including to the North Eastern States. The Complaint of discrimination would then no longer be valid. Coming from a judge of the Supreme Court this is the weirdest understanding of the expression “discrimination” and the equality concept of the Constitution.

This understanding of discrimination has only to bring about the integrity of the country by power and abuse. That is what followed after the aforementioned para ‘Three’. The Committee feels that the proposed amendments to the ULP Act would be more comprehensive in the sense that it would expressly permit deployment of armed forces and para-military forces to achieve its object viz curbing terrorism. But that is not complete. The legislature has to fix the human mask somewhere to make it acceptable. That cosmetic dressing was left to the Parliament.

The Committee recommends the incorporation of Chapter IV-A to be inserted in the ULP Act. The Committee would not trust it to the legislature/parliament and so the committee painstakingly drafted those provisions. The only thing the Committee seems to have done is to use the ULP Act and recommended to the nation’s government that use of it will bring about the desired integrity of the country! The redrafted provisions introduce the powers present in the Special Powers Act which the Jeevan Reddi Committee Report says people overwhelmingly laid stress that that Act should be repealed. Repealing that Act and putting in its place yet another draconian measure is not a solution to the problems plaguing the people of the North Eastern States. Had the Committee members gone through the fact finding reports of the various human rights committees they would have come to the conclusion that repressive measures in new forms are not the requirements the people there needed. What was needed was a political resolution of the problems faced by the people living there for five decades and more. Our Politicians and judges can only think of only law and order solutions and these can never correct social imbalances.

This committee is not required to tell the Indian Government that the ULP Act should be enforced. It has come into force all over India. That it was decided to be enforced in the North Eastern States was evident because in the Schedule to the Act are included the militant organizations operating in this region. It is also quite obvious that the Government of India’s perception of the activities of these organizations is also like that of the Committee, namely “terrorist activities”. The learned judge could have turned down the reference by telling them “Our task will only be repetitious and would be waste of your resources and our time. You have already included the North -Eastern States within the ambit of ULP Act. Please enforce it with such modifications as you think are called for”.

The other likely interpretation of the reference by the Government would be “We have the repressive law in place. There are several ethnic and regional groups with strong identities that have been warring among themselves. Kindly suggest federal and democratic proposals for working out a peace process in these plural societies. We have compounded the situation by trying to resolve them by use of force for around fifty years. Please tell us how these plural societies can be persuaded to abandon the antagonistic and annihilating attitude towards each other. We are trying the peace process in Nagaland. Will it be possible for the Committee to contribute inputs to expand the area of the peace process?” The Law & Order reflex is not what the people expected. That is obvious from the report. As this was not what the people of the North East expected it should be rejected. The government will not be justified to enforce the terms of this Report .

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014