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February 12, 2013, The Hindu 

SANJOY HAZARIKA

Mr. Chidambaram has sought to blame the Army for the failure to repeal the draconian Act but the government is equally guilty as it has abdicated responsibility in the matter

At an institute that is virtually owned, funded and run by the Ministry of Defence (MoD), Union Finance Minister P. Chidambaram did the unthinkable the other day. He virtually attacked the Army for refusing to review and amend the draconian Armed Forces (Special Powers) Act (AFSPA), if not repeal it altogether.

Like a clever politician, he tossed the issue squarely into the lap of the Army and the MoD, saying they were unambiguously opposed to any change and that “you should ask the question to the armed forces and ask why are they so opposed to even some amendment to which will make [it] more humanitarian. We have [the] Jeevan Reddy Committee report but yet if the Army takes a very strong stand against any dilution or any amendment to , it is difficult for a civil government to move forward.”

This raises a startling issue about democracy, the rule of law and of civilian control over the military. Now that the most powerful figure in the Cabinet after the Prime Minister has spoken, perhaps someone will take notice. But the problem is far more complex than it appears to be.

After all, the Minister did not say why the Government of India has refused to publish the Reddy Committee’s report or even table it in Parliament eight years after it was submitted. It remains accessible on The Hindu’s website, the place where the report was first leaked and published verbatim in 2005.

It is not that the question is simple, stark and frightening: who runs the north-east or Jammu & Kashmir or any area that is affected by insurgency? AFSPA is put in place after the area has been declared “disturbed” under the Disturbed Areas Act, the enabling provision of law, which facilitates the summoning of the Army to the aid of civil authorities who are unable to control armed insurrection. This is the call of the State government or the Centre.

No prosecution in over 50 years

Passed in 1958 when the Naga movement for independence had just taken off, AFSPA is a bare law with just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act. In 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram). In the discussions over the past days, no one has even mentioned the regrouping of villages in both places: villagers were forced to leave their homes at gunpoint, throw their belongings onto the back of a truck and move to a common site where they were herded together with strangers and formed new villages. It is a shameful and horrific history, which knows little about and has cared even less for.

Impact of Verma report

A year ago, two judges of the Supreme Court, intervening in a case where the Central Bureau of Investigation was seeking to prosecute army officers accused of murdering five villagers in Jammu & Kashmir, in what is known as the Pathribal incident, declared clearly that AFSPA’s protection was limited to acts conducted in the line of duty.

“You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” declared the bench of Justices Swatanter Kumar and B.S. Chauhan.

It’s simple: you don’t rape or murder “in the line of duty.” These are aberrations to the law of military conduct with civilians. And the Army is upset that the Justice J.S. Verma Committee even suggested that military men accused of sexual assault should be tried under normal law and not be protected by the law that guarantees absolute protection: Immunity.

A retired general came on a TV programme the other day and fumed that reviewing AFSPA was not the mandate of the Verma Committee. Sorry sir, you’ve got it completely wrong. The question of life and death in a “disturbed” area where, according to a case now before the 15,000 people (men, women and children) have disappeared from the killing fields of Manipur is everyone’s concern.

Army circles are worried that soldiers and officers will be dragged to civilian courts and that frivolous cases will be filed against them. This is a real matter of concern but it cannot be the rationale for blocking efforts to repeal or amend AFSPA. Come up with an alternative instead. But the MoD has not or is perhaps unable to do so. A former general even said publicly that 97 per cent of all cases against army men were found to be false. The question I will put is simple: how far back are you going? Do you forget those murdered, raped and tortured, their homes and granaries burned and their places of worship desecrated? Should these crimes go unpunished? Remember too that the Indian Air Force, in March 1966, bombed Aizawl and civilian targets in the Lushai Hills (now Mizoram) to repulse an insurgent attack that had almost overrun the district headquarters.

Many in Mizoram do not even talk about those days. They are simply spoken of as “the troubles” and no discussion takes place, such is the trauma that has been inflicted on people. And are we merely supposed to forget all this, to sweep it under the carpet and “move on”? Why should the victims continue to pay the price? Why not those who inflicted the devastation, who gave the orders and who carried them out?

is peaceful now

We need to remember two points here about AFSPA and the place where it all began — Nagaland, in 1958. Nagaland today is peaceful. It is not free of intimidation, extortion or factional killings, but not a single Indian solider has fallen in combat here for the past five years. The State government has been asking, since 2005, for the removal of the Disturbed Areas Act. The refuses to listen.

What is the greater abomination then? Is it that the Army, which is easy to blame and always in the line of fire, is stuck in a thankless task? Or is it that the civilian government which first sent them there is unable to take the political decision that will bring the boys home? Fifty-four years is a long time to have a law as revoltingly brutal and obscure as AFSPA. Now, both sides are stuck. The army says it is like its “Bible” and that if the Act is removed it will face the prospect of fighting “with one hand tied.” The central government says that it can’t persuade the Army to back down.

What will it take to close this sad, ignominious and bloody chapter in our nation’s history? We will need to go beyond Mr. Chidambaram’s remarks — for what he was doing is to lay the blame at the door of the Army. That is not right for the civilian government is equally complicit in this. He is seeking to show that the “civilian” government is opposed to a doctrinaire securitised approach and that the MoD and the Army are isolated. But this approach doesn’t work. Instead, it shows that the two, even when isolated, are more powerful than the rest of the government put together. They have, after all, successfully stalled any effort to dilute or amend the Act. Why did the “civilian” government not have the courage to act in 2005 when the Reddy Committee gave its report, which not only recommended AFSPA’s repeal but also proposed a legal mechanism by which the Army could be used in extraordinary situations involving national security? Our essential recommendation was that no one could be above the law; everyone must be equal before and under it.

Display statesmanship

The Centre has lost more than seven years in coming to no decision on the recommendations. Yes, internal wrangling is difficult to resolve but how long should anyone have to wait for a resolution? Today, the situation has become much more complex because the window of opportunity provided by the Reddy Committee has virtually closed. The Army has bolted it because it does not want to be seen as the villain of the piece. It did not ask to go anywhere. It was sent to Nagaland and Manipur. But now it must, in its own interests and that of the country, get out of places where threats to national security simply do not exist, and when the central government thinks it should leave. After all, if required, the security forces can always be summoned again.

The situation calls for statesmanship of a very high order. Atal Bihari Vajpayee showed this in 2003 on his maiden visit to Kohima when he reflected, as Prime Minister, on the suffering that both sides had faced and sought to reach out and seek reconciliation: “Let us leave behind all the unfortunate things that happened in the past. For too long this fair land has been scarred and seared by violence. It has been bled by the orgy of the killings of human beings by human beings… Each death diminishes us … The past cannot be rewritten. But we can write our common future with our collective, cooperative efforts.”

The present situation demands measures no less significant from the current Prime Minister, who decided that AFSPA must be reviewed. But he did not follow this up because the opposition from the Defence Ministry was just too strong.

So, we must ask, as we rest and wrestle with this tortuous story: how many more deaths, how many more naked protests, how many more hunger strikes, how many more committees, how many more editorials and articles and broadcasts before AFSPA goes?

(Sanjoy Hazarika is Director of the Centre for North East Studies at Jamia Millia Islamia, New Delhi, and founder of the Centre for North East Studies and Policy Research in the north-east. He was a member of the Justice Jeevan Reddy Committee to Review AFSPA.)

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