“High Time that AFSPA is made Humane”

By Shweta Adhikari

Armed Forces Special Powers Act completed 55 years of its reign on September 11. Since then there have not been any major reforms in it. It is an irony that the photocopied act (the act is a copy of the Armed Forces Special Powers Ordinance of 1942 which was promulgated to suppress Quit India Movement) which was passed in a summary manner (was debated for only 3 hours in the Lok Sabha and 4 hours in the Rajya Sabha) by the parliament is to decide the fate of the people of eight states. Pertaining to the disturbances in the north-eastern states this act was extended to those parts to curb the occurrences. Even though the act has been successful in preserving the existence of these states but has failed miserably in preserving their integrity with the nation. The tyranny of armed forces compels people to demand freedom through violent means which in turns justifies the need for AFSPA.

The provisions of this act have not only been criticized in domestic forums but the international human rights agencies also oppose it. When United Nations Human Rights Committee questioned the validity of AFSPA in 1991 under Indian Law and in light of Article 4 of the International Covenant on Civil and PoliticalRights, the Indian Government harped on the fact that it is necessary to prevent the secession of the North Eastern states.^[1] Navanethan Pillai, the High Commissioner of UN on Human Rights during her visit to India urged the Indian Government to repeal acts like AFSPA which provide armed forces with excessive powers.

The act is not only violative of Articles 19, 21 and 22 but also violates the Universal Declaration of Human Rights (the “UDHR”), the International Covenant on Civil and Political Rights (the “ICCPR”), the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra- legal and summary executions.

The Constitutional validity of this act was challenged in Naga People’s Movement of Human Rights (NPMHR) v. Union of India,[2] after the public outrage following the unconscionable execution of Manorama Devi. However, the court upheld its validity. True that the act is not invalid on the grounds of being a colorable legislation and being violative of the doctrine of pith and substance but the court failed to take into consideration the various reports of human rights violation cited.

Also it did not consider that the conferment of such wide powers on the institution of Army can have detrimental effects.  A volley of cases followed this case. In Masooda Parveen v Union of India (UOI) and Ors.,^[3] the court observed that compensation and job on compassionate ground cannot be awarded in case of custodial death of a militant. The court reiterated here the views it had taken in the NPMHR case.

Similarly in Inderjit Barua v.State of Assam,^[4] the Apex Court held that, “the Governor is empowered to declare any area of the State as “disturbed area’. It could not be arbitrary on ground of absence of legislative guidelines”. Thus, it was exempted from judicial scrutiny.

As a result of the recently decided case, Extra Judicial Execution Victim Families Association (EEVFAM) and Anr. v Union of India (UOI) and Anr.,[5] the court ordered that, “Commission shall be appointed/constituted to make a thorough enquiry in cases and to record a finding regarding past antecedents of victims and circumstances in which they were killed.” The commission headed by Justice Santosh Hegde recently tabled its report before the Parliament in July 2013.

Mainly two commissions were setup to review the working of this act. Both of them criticized it openly and demanded its repeal. One of them never saw the light of the day and the recommendations of the other one are still under consideration (Jeevan Reddy Commission and Santosh Hegde Commisssion).

The recent statement by Union Finance Minister Chidambaran fobbing of responsibility for not repealing the act on the military has been topic of debate recently. Also the assurance given by him and the Chief Minister of Jammu and Kashmir that the act will be made more humane has raised hopes in people. What remains next to be seen is that whether the report of Hegde Commission will die the same death as that of Reddy commission or some reform will be actually brought about.