AFSPA in North-East and Kashmir

The Armed Forces Special Powers Act(hereafter AFSPA) was enacted in 1958 with the aim to contain the secessionist armed rebellion started by Naga National Council(NNC) in 1950s.The provisions of the act were,by and large,borrowed from the colonial legislation of Armed Force Ordinance act,1942,devised originally to quell the Quit India movement.The AFSPA was later extended to Jammu and Kashmir,apart from all the states of North-East India.

The AFSPA is extended to those areas which are declared “disturbed” under the Disturbed Areas Act.It is an act with barely six sections. The controversial provisions of the act pertains to section 4 and section 6 of the act.The former authorizes a commissioned or a non-commissioned officer to fire upon somebody even to the extent of causing death, while the later mandates that no criminal proceedings shall be initiated against the armed personnel for his act while on duty.

The proponents of the act argue that the conferment of special powers on armed personnel provides protection and operational flexibility to carry out the counter-insurgency operations.The tactical delays in firing a terrorist,searching and raiding their hideouts might render the entire operation futile in want of permission and warrants.Moreover,in Jammu and Kashmir(J&K),the growing concern is about proxy war apart from insurgency.This reinforces their opinion for the continuance of AFSPA in the larger interests of national security and territorial integrity.

However,the skeptics are of the view that the law is utter draconian.That said,security personnels misuse the law and commit acts which violates the human rights.Various acts of rape,murder,arson have cropped up time and again in these areas.The Machil incident is a case in point,where the security personnel committed heinous crimes by murdering five unemployed youths and later branding them as cross-border infiltrators.Such acts,in all likelihood,embolden the insurgents to take up violence against the state resulting in a vicious cycle of violence and counter-violence.The draconian act is also believed to have hindered any possibility of imminent cease-fire between the state and the warring insurgent groups.

The government had appointed a commission under the chairmanship of Jeevan Reddy to study the implementation of the act.Although the report was neither put in public domain nor tabled in Parliament,the leaked version of the report suggests that the committee was in favour of repeal of the act. Various supreme court judgements too have indicated that the provisions of the act are unduly harsh  for a democratic nation like India.The Justice Verma report recommended that the perpetrators of sexual violence against women ought to be tried in a civil court.All these recommendations are far from being implemented in letter and spirit.

Recently,the military court sentenced five persons to life imprisonment for their crimes in the Machil case.The landmark judgement helped in sustaining faith of the citizens in the credibility of democratic institutions. Though the act is unlikely to be repealed outrightly, certain provisions of the act can be modified in due course of time.The Standard Operating Procedures(SOP) outlined should be diligently followed and a robust oversight mechanism should be put in place. Moreover, armed personnels are to be made accountable for their acts of omission  and commission so that the culture of impunity ends in relation to crimes against humanity.