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BRP Bhaskar: Era of army impunity ends
July 12, 2016
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Exclusive to The Gulf Today

The immunity from prosecution which security personnel deployed in insurgency-hit areas have enjoyed under the Armed Forces Special Powers Act (AFSPA) may become a thing of the past with the Supreme Court striking a decisive blow for freedom and accountability.

AFSPA, which is in force in parts of Jammu and Kashmir and the predominantly tribal states of the northeast, stipulates that there can be no legal proceedings against personnel acting under it. There has been a plethora of allegations of human rights violations by security forces and these have led to violent protests on several states.

In an 85-page judgment, delivered last Friday, a Supreme Court bench said every death caused by the armed forces should be thoroughly enquired into. “It does not matter whether the victim was a common person or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both,” it declared.

Rejecting the government’s claim that denial of immunity would demoralise security personnel, the court said there was no concept of absolute immunity for an army person who committed a crime.

Every person who violated prohibitory orders in a disturbed area was not an enemy, it pointed out. Even if the person was an enemy there should be an enquiry to ascertain if excessive or retaliatory force had been used. It also drew a distinction between use of force in an operation and in other situations.

It entrusted the National Human Rights Commission with the responsibility of ordering enquiry into allegations against the security forces, and named the criminal investigation department of the police as the agency to conduct the enquiry.

AFSPA’s roots go back to the colonial era. The different versions of the law in force in various states are all based on the ordinance the British promulgated in 1942 to deal with the Quit India agitation which the Congress party launched even as the Indian National Army, formed by Subhas Chandra Bose to fight alongside Japan, was moving towards the eastern border from Singapore.

The ordinance was allowed to lapse after World War II. A few years after the country gained freedom it was resurrected to grant immunity to army and paramilitary personnel called out to deal with Naga insurgency in the eastern state of Assam. It is now in force, under the name AFSPA, in Nagaland, Manipur and Arunachal Pradesh in the northeast and in J and K.

Ordinarily, AFSPA is applicable only in areas notified as “disturbed”. Most versions of the relevant law limit the “disturbed area” notification’s validity to six months. However, some areas have been kept under AFSPA continuously for half a century by repeatedly reissuing the notification.

J and K invoked AFSPA following a spurt in insurgency in 1992. The state’s Disturbed Areas Act lapsed in 1998 but AFSPA continues to this day. The National Conference government headed by Omar Abdullah wanted AFSPA to be withdrawn but the Centre did not oblige.

The People’s Democratic Party which heads the state government now also favours withdrawal of AFSPA, but the Bharatiya Janata Party, which heads the Central government and is PDP’s junior partner in the ruling coalition in the state, is a vocal supporter of the law.

The day the Supreme Court verdict on AFSPA came the security agencies announced the killing of 22-year-old Burhan Wani, said to be a home-grown Hizbul Mujahideen commander, and two associates in an encounter. At least 20 persons were killed and 200 injured as security forces fired on youths protesting against his killing.

The worst part of AFSPA is the security forces’ reluctance to part with it and the government’s readiness to honour their wishes. People in many states have been seeking the withdrawal of AFSPA for decades. Irom Sharmila, a young woman poet of Manipur, who began an indefinite fast in November 2000 demanding repeal of AFPSA and is kept alive through nasal feeding in a hospital, has become a global icon of the human rights movement.

The state of Punjab and the Union Territory of Chandigarh came under AFSPA in 1983 in the wake of the secessionist Khalistan movement. Under Congress and Akali Dal governments Punjab retained it until 1997. Chandigarh held on to it until the Punjab and Haryana High Court struck it down in 2012. Tripura’s Communist Party of India (Marxist) government lived with AFSPA for 14 years.

The apex court verdict has formally ended the era of army impunity. But more struggles in legal and other forums may be needed to make it a reality.



the author

is a political analyst of reckoning.

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