One common factor among all these laws, national or state level, is that they give unchecked immunity “in acts in good faith” performed by law enforcement agencies.

Let us have a look at these outdated laws that have been used by several governments over the years, all of which violate fundamental human rights.

NATIONAL SECURITY ACT, 1980 (NSA)

Despite the NSA being a central law, it is being increasingly used by states to detain individuals. Its misuse has even been brought into question by the Supreme Court. In recent times, the apex court expressed shock that NSA was invoked against Samajwadi Party leader Yusuf Malik in a revenue recovery case without application of mind. In another case, NSA was invoked by Tamil Nadu against a YouTuber from Bihar who was arrested for spreading fake videos of attacks on migrant worker and the apex court questioned this decision as well.

• Under the NSA, a person is detained to prevent him or her from acting in any manner prejudicial to “the security of the state” or for “maintenance of public order” or “to the maintenance of supplies and services essential to the community”
• Such authority to detain lies, apart from the Central and state government, with the District Magistrate or a Commissioner of Police; thus allowing detention on a mere administrative order.
• Such Order of Detention can be issued for a period of three months at a time and the administrative order has to be approved by the state government within 12 days of issue, for it to remain operative for 3 months.
• Section 5A of the NSA states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the Court to be vague or invalid, even that one ground would still remain and the detention order sustained.
• The grounds of detention are to be communicated to the detainee within five days or latest within 15 days in exceptional circumstances.
• The detention order is to be placed before Advisory Board within three weeks whereby it shall consider the grounds and the detainee’s representation.
• Once confirmed by the Board, the person can be detained up to one year. Once this period expires, the person can be detained once again without any fresh facts, for another period of one year.
• Under section 14A, the detention order can be extended beyond three months, without the Board’s confirmation, for up to six months if the person is detained to prevent him in any “disturbed area” from interfering with efforts of Government in coping with the terrorist and disruptive activities as also from acting in manner prejudicial to defence, security of the nation and state, maintenance of public order or maintenance of supplies and services essential to the community
• Delhi Lieutenant Governor Anil Baijal had authorised the Delhi Commissioner of Police to detain people under the National Security Act till October 18, 2021 amid the farmers’ protest and then upcoming Independence Day celebrations.
• Dalit leader Chandrashekhar Azad had been detained by the Yogi Adityanath led UP govt in November 2017 for his alleged involvement in violence over installation of Dr Babasaheb Ambedkar’s statue in Sharanpur in May that year. One year later, Azad was released from detention after this decision was challenged before Supreme Court.

JAMMU AND KASHMIR PUBLIC SAFETY ACT, 1978 (PSA)

• The law was brought in by the state’s first chief minister, Shaikh Abdullah in 1978 to prevent timber smuggling (and detain smugglers in prison) allows the state to detain persons up to two years without trial.
• Its provisions are similar to NSA but was enacted two years before the national law.
• Under section 3 and 4, the government has power to declare any place or area as prohibited or protected vide a notified order and any person, even unaware of such a notified status of the place can be imprisoned for contravention.
• Under section 6, the Government may deem any document to be detrimental to communal, sectarian or regional harmony or even public order and can prevent its circulation within the State.
• Under section 8, a person can be detained if he/she is deemed to be prejudicial to public order.­
• The reference to the Advisory Board, about the detention order, is to be made within 4 weeks and once confirmed by the Board, the person can be detained for up to 2 years
• Section 19 grants the Government the power to re-issue a detention order on basis of same facts.
• A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.
• The PSA was indiscriminately used in the erstwhile state after August 5, 2019 to detain political leaders after Article 370 was abrogated by the Parliament.
• A detailed analysis of the Act may be read here.

THE ARMED FORCES (SPECIAL POWER) ACT, 1958 (AFSPA)

• AFSPA gives the armed forces the power to maintain public order in “disturbed areas”
• It was passed to curb increasing violence in north-east states in 1950s
• The law gives a free hand to armed forces to maintain law and order in these disturbed areas declared so from time to time by the Ministry of Home Affairs.
• The armed forces may use force or fire at anyone found contravening the law (for instance violating the curfew or assembling in larger numbers). They may also detain a person without warrant and search any place without warrant
• AFSPA was revoked in Meghalaya as of April 1, 2018 and in Tripura in 2015
• Under section 6 of the Act, no prosecution, suit or other legal proceeding shall lie against any person in respect of anything done or purported to be done in exercise of the powers conferred under AFSPA; thus giving complete impunity to armed forces.

Arunachal Pradesh

• As of April 1, 2021 up until September 30, 2021 districts of Tirap, Changlang and Longding as well as (i) Namsai and Mahadevpur police stations in Namsai district; (ii) Roing police station in Lower Dibang Valley district; (iii) Sunpura police station in Lohit district have been declared as disturbed areas as per section 3 of AFSPA

Manipur

• As of December 1, 2020 the entire state of Manipur, except Imphal municipal area has been declared as disturbed area for a period of one year i.e. until December 1, 2021

Assam

• On February 22, 2021 the entire state of Assam was declared as a disturbed area for 6 months citing the state Assembly elections and the activities of extremist outfits like ULFA(I).

Nagaland

On June 30, 2021 the application of AFSPA to the entire state was extended for another 6 months

MAHARASHTRA CONTROL OF ORGANISED CRIME ACT (1999),

• Organized crime is a grouping of highly centralized enterprises run by Criminals who tend to engage in illegal activity. Unlawful activities like terrorism, theft, prostitution, robbery, drug trafficking, human trafficking, forced labour which are practiced collectively by group of people are called as organized crimes.
• Section 2(e) defines ‘Organised Crime’ which means “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”.
• Under section 3 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.
• Presumption of offence means the court shall presume the accused to be guilty unless the contrary is proved, thus putting the onus of proving himself innocent upon the accused.
• The investigating authority has special powers like intercepting wire and oral communication in the process of investigation.
• Further, under section 18 confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• The offences under the Act includes conspiring, attempting to commit or abetting organized crime or harbouring member of organized crime or being a member of such syndicate.
• Under section 21(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
• Under sub-section 5 of section 21, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
• MCOCA was passed to curb such activities of “gangs” that were part the “underworld” in Mumbai.
• In March 2003, the Bombay High Court had struck down as illegal the powers under MCOCA to intercept communications. However, these powers under section 13 to 16 were upheld by the Supreme Court in 2008.
• In 2002, the application of MCOCA was extended to Delhi as well.

KARNATAKA CONTROL OF ORGANISED CRIME ACT, 2000 (KCOCA)

• The KCOCA was modelled on MCOCA and was legislated during the tenure of a Congress government in 2001.
• In 2009, KCOCA was proposed to be amended bringing terrorism within its purview with a maximum punishment of death. If the investigation is not completed within 180 days, the Court is authorized to extend the period up to 365 days, which means an accused can be detained for a year without filing of chargesheet.
• Under the proposed amendment Organized crime has been defined expansively to also include ‘terrorist act’ apart from ‘any continuing unlawful activity’. A terrorist act includes within its definition, acts committed with the intent to ‘disturb law and order’ or ‘public order’.
• The proposed amendment, empowered courts to attach the properties of terror suspects and there is a provision for a fine of Rs 10 lakh for terrorist acts. Also, terror suspects can be in police custody for a maximum of one month and in judicial custody for 180 days.
• However, the amended law has not received the President’s assent and thus these 2009 amendments do not stand. The following provisions, however, are part of the main Act as it is operational in present day.
• The investigating authority has special powers, under section 14, like intercepting wire and oral communication in the process of investigation.
• The police officer also can seek an order from the competing authority directing a cellular phone operator to de-activate any mobile phone and delink the calls from or to any mobile phone reasonably suspected of being used for any criminal act or conspiracy.
• Further, under section 19, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• If a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government.
• Under sub-section 5 of section 22, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
• Under section 23 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.

CHHATTISGARH SPECIAL PUBLIC SECURITY ACT (2005)

• Under the Chhattisgarh Special Public Security Act (CSPSA), 2005, or the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, “unlawful activities” include posing a danger to public order, peace or tranquility in society, posing an obstacle to maintenance of public order, interfering with administration of law and encouraging the disobedience of law among others.
• The Act borrows heavily from UAPA in its formation of Advisory Board, declaring organizations as unlawful, penalising membership of unlawful organization and so on.
• The government is also empowered to forfeit funds of such organization and District magistrate (DM) is empowered to take possession of places used for unlawful activities.
• The decision of the DM and/or state government in matters under the Act is final and cannot be appealed against, saving writ jurisdiction of the high courts and Supreme Court.

GUJARAT CONTROL OF TERRORISM & ORGANISED CRIME ACT, 2019 (GCTOCA)

• The law received the President’s Assent 16 years after it was first introduced in the state assembly. Three Presidents before Ram Nath Kovind had returned the bill to the state
• While the law borrows significantly from MCOCA, what it misses out on is the checks on interception of communication. Also, the definition of “terrorist act” also includes “an act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the state”.
• Economic offences include ponzi schemes, extortion, land grabbing, contract killings, cybercrimes, human trafficking, and multi-level marketing schemes and organised betting.
• MCOCA has 5 sections dealing with interception of communication having checks like application for extension of period beyond 60 days must include a statement of the results of the interception thus far or officer above SP level is required to supervise the investigation.
• GCTOCA deals with the admissibility of evidence collected through interception, and does not mention the procedure for intercepting communication.
• under section 16, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• Under Section 18, if a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government. Further, is any property is suspected to be proceeds of terrorist act or organized crime, the police can have it seized once confirmed by the Special Court.
• Under section 20(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
• Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail. Bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.
• Under section 21 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene

THE PREVENTION OF ANTI-SOCIAL ACTIVITIES, 1985 (PASA)

• The ‘definition’ of offenders who can be charged under this law are vague and easily prone to misuse. The definitions include “cruel person” “dangerous person”, “property grabber”, “unauthorised structure” among many others.
• A “cruel person” means a person, who either by himself or as a member or leader of a gang, commits an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954.
• A “dangerous person” means a person, who either by himself or as a member or leader of a gang, habitually commits, any of the offences punishable under Chapter XVI (offences affecting human body) or Chapter XVII (offences against property) of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.
• Section 3 of the Act gives the government the power to issue a detention order against any person for preventing them from acting in “any manner prejudicial to the maintenance of public order”.
• public order is deemed to be affected if any activities of the offenders is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general publicor any section thereof, or if (there is) a grave or widespread danger to fife, property or public health.
• Under section 5, the law provides for place and conditions of detention which means a detainee can be kept under prolonged detention so as to maintenance, discipline and punishment for breaches of discipline, as may be specified in the order.
• Section 6 states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the court to be vague or invalid, the one ground would still remain and the detention order sustained.
• In case a person against whom a detention order has been made “is believed” to have absconded or is concealing himself, the concerned authority is empowered to attach or sell his property within the State.
• The detaining authority has up to 7 days to communicate the grounds of detention to a detainee, from the date of detention order and if any of these are facts that are against the “public interest”, then they may not be disclosed.
• The Advisory board hears the detainee without legal representation and decides a within 7 weeks whether the detention is confirmed. The Board is empowered to confirm detention for a maximum period of one year.
• The amendment Bill of 2020 brought cyber offences also under its ambit which meant any person committing offences described under the Information Technology Act can be detained under PASA.
• It also now includes sexual offenders which could mean anyone who commits sexual offences as defined under the Indian Penal Code.

Related:

J & K’s PSA Law: How Draconian is Draconian?

SC OBSERVES PREVENTIVE DETENTION LAWS TO HAVE A COLONIAL LEGACY WITH A HIGH POTENTIAL FOR ABUSE AND MISUSE

LAW ON ARREST AND DETENTION: KNOW YOUR RIGHTS!

DEMOCRACY CAN NEVER BE A POLICE STATE: SUPREME COURT

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Ukhrul: Large crowds of protesters gathered at the Ukhrul district headquarters in Manipur on Thursday and participated in a peace rally against the alleged forceful stationing of Assam Rifles in nine villages of Ukhrul and Kamjong districts. Organised by the local community organisatins of the Tangkhuls, the protestors demanded immediate withdrawal of Assam Rifles camps being set up in their villages and also for removal of the Armed Forces (Special Powers) Act, 1958.

The peace rally began at 10:30 am from two locations-Mission ground, Hunphun and Dungrei junction, Hungpung and converged at Ava Market (Mothers’ Market) at Phungreitang.Slogans like ‘Go back Indian Army’, ‘We will never surrender’, ‘We want peace, not war,’ and ‘Democracy our right’ were rang out during the protests.

According to organizations from among Tangkhul civil society (CSOs), public spaces such as playgrounds, schools and children’s homes and community halls are presently being used as camps by Assam Rifles, thereby restricting the lives and freedom of citizens. Moreover, security check posts have been set up, and locals are being subjected to scrutiny as they go about their lives. Besides, women and children especially are subjected to the fears caused by this unwarranted situation in the guise of AFSPA, 1958, it stated. Also, according to the local organisations, elders yet to recover from trauma caused by the army’s violence are being subjected to it all over.

Only last week, allegations of the Assam Rifles of forcefully occupying their land and setting up their camps, led to residents from Khamasom, Mapum, Poi, Tusom CV and Lamlang villages in Ukhrul district while Kangpat Khullen, Chatric, Ramphoi and Kasom Khullen in Kamjong district staged a sit-in-protest in their villages simultaneously.The locals claimed that the Assam Rifles set up their camps without the lcoals’ consent and demanded they immediately leave their land.

“In defending our land, which is our identity, we appeal to every Tangkhuls to join us as one voice and together, let’s safeguard our rights,” organising committee convenor SA Ramnganing stated earlier.

Later, the apex bodies also submitted a representation to prime minister Narendra Modi and appealed for the immediate withdrawal of the forceful Assam Rifles occupations from 9 villages and the repeal of the draconian AFSPA from the entire state of Manipur.

Meanwhile, the Forum against Corporatisation and Militarisation, based in New Delhi has condemned this occupation of local land by the army. Assam Rifles of the Indian Armed Forces have recently moved in and captured 9 Naga Villages of Ukhrul district of Manipur, to which the Indian state has not given any explanation, according to reports. The said “intrusion” and occupation of the villages, apparently, has been done without the consent of the Naga Village councils and the Tangkhul Indigenous people, to whom the land belongs. This, said a press release of the organization, makes a mockery of Article 371 (A) of the constitution, through such intrusions, land grab, and the Atrocities of the past and the present and granting them impunity under draconian laws like Armed Forces Special Powers Act.

One such recent example of Genocidal Military action is Massacres inMon and Otingwhere 14 people, mostly innocent mine workers were massacred by Para SF of the Indian Armed Forces and are still not prosecuted due to the impunity of AFSPA. The Naga Civil Society and Global Naga Forum have all reported about the situation through statements and media reports that the Armed Forces are:

1. Occupying the public spaces such as schools, playgrounds, community centers etc., And are turning them into military camps.

2. Private properties are taken over and constructions are carried on them to build military camps.

3. A widespread atmosphere of fear among women, children and old due to such presence of armed forces, having past record of Brutal Atrocities against the very people, building check-posts across the area is affecting the peace of the people.

On September 15, 2022, Over 5000 people took to the streets of Ukhrul town to mount pressure on the Central and State governments for immediate withdrawal of the security forces from nine Tangkhul villages where the troops have set up military camps/bases without the consent of the villagers.

Apart from Manipur, the people of Chhattisgarh and Jharkhand have protested against Paramilitary camps, with 12 major sit in protests in Bastar, continuing for months. Recently, the Indian government has begun to establish a Joint Command Center in BhadradriKothagudem District on Telangana-Chhattisgarh border in the name of fighting the Maoists. The said command center is to house the District Reserve Guard (DRG) formed by inducting the infamous SPOs of the SalwaJudum, Commando Battalion for Resolute Action (CoBRA) of Chhattisgarh, Greyhounds of Telangana etc.

 The camps, in these forested regions of  Central India, are being built as Forward Operational Bases under Indian State’s Military Operation SAMADHAN-PRAHAR to suppress all forms of struggle of the local people against large companies grabbing land, water and minerals.

The Forum Against Corporatization and Militarization (FACAM), has urged the Following:-

1. Withdraw Assam Rifles from the 9 Naga Villages of Ukhrul District, Manipur.

2. Repeal Armed Forces Special Powers Act (AFSPA).

3. Disband the Joint Command Center to be Built in BhadradriKothagudem District, Telangana.

Related:

Nagaland Killings: Police file case against 30 security personnel
Manipur HC reaffirms stay on development projects around Loktak Lake
Anti-AFSPA march in Nagaland

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In wake of the killing of 14 civilians by security forces in Nagaland, it appeared that the Centre felt the need to tread cautiously with respect to the Armed Forces Special Powers Act (AFSPA). However, just days after announcing that it has formed a panel to look into the possibility of scrapping AFSPA in Nagaland, the Centre has extended the tenure of Act which will now be effective for six more months.

On December 30, the Ministry of Home Affairs (MHA) issued a Gazette notification saying, “The whole state of Nagaland is in such a disturbed and dangerous condition that the use of armed forces in aid of civil power is necessary.” AFSPA will remain in effect in the region for six more months.

The notification may be viewed here:

The AFSPA Panel

The decision to form a five-member panel to examine possibility of AFSPA withdrawal was taken after a meeting between Union Home Minister Amit Shah and leaders from the North East such as Nagaland Chief Minister Neiphiu Rio, Deputy Chief Minister Y Patton, Naga People’s Front Legislature Party leader TR Zeliang, and Assam chief minister Himanta Biswa Sarma on December 23 in New Delhi.

The panel will be headed by additional secretary (Northeast) in the MHA and also include Nagaland’s chief secretary and director-general of police, the inspector-general of Assam Rifles (North) and a CRPF representative. It will make recommendations about removing the “disturbed area” tag from Nagaland and submit its report within 45 days.

But already there are voices of disapproval regarding the panel’s composition. The Konyak Civil Society Organisation based in Mon district where the massacre took place questioned the absence of people from the affected area in the panel.

AFSPA in Nagaland

The controversial Act gives security personnel a virtual carte blanche to commit excesses for the purpose of fighting insurgency. Horror stories of human rights abuses that have taken place during the six decades the draconian Act has been effective in the region are aplenty, but the Oting massacre finally pushed the Centre to act.

The incident took place on December 4 when coal mine workers belonging to the Konyak tribe were on their way home from work, travelling on the road that connects Thiru to Oting in Mon district of Nagaland, less than a hundred kilometers from the international border with Myanmar. Personnel of the 21 Para Special Forces opened fire on their vehicle, allegedly without even verifying their identity. Six miners were killed and two injured in the incident. Shortly afterwards a search party from the village of the miners came looking for them and as per a joint report of Nagaland’s Director General of Police (DGP) and Commissioner, “On reaching the spot, they found the pick-up truck and the special forces personnel trying to hide the dead bodies of the six villagers by wrapping and loading them in another pick-up truck (Tata Mobile) apparently with the intention of taking the dead bodies to their base camp.” When the villagers tried to stop them, the security forces once again opened fire on them and killed seven more people.

The Army later sheepishly issued a non-apology claiming the forces were acting on a tip that insurgents were travelling in the area with a cache of arms. But that neither explains why it did not bother verifying the identity of people they shot, nor why they were trying to whisk away the bodies of the dead. The following day, angry protesters attacked a camp of the Assam Rifles after bodies of the dead were not brought to the Mon helipad where a funeral had been planned by the villagers. One more civilian was killed in this protest taking the toll of civilian deaths to 14.

Since then, the Nagaland government has unanimously adopted a resolution to rid their state of AFSPA, and push for the repeal of the Act. “This House must sound the desire of the people. The desire of the people is to repeal this undemocratic and draconian law,” said Nagaland Chief Minister Neiphiu Rio when the resolution was adopted on December 20.

Related:

Nagaland Assembly adopts resolution to repeal AFSPA

Nagaland gov’t to hold special session on AFSPA

Security forces gun down 13 civilians in Nagaland

Nagaland killings: Chorus grows for repeal of AFSPA

Army tried to hide bodies: Nagaland DGP’s report

Nagaland Killings: NHRC takes suo motu cognisance

So long as AFSPA protects soldiers from accountability, such atrocities will continue: HRW

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After day-long deliberations on Monday, the Nagaland State Assembly has unanimously adopted a resolution to repeal the Armed Forces Special Powers Act (AFSPA). The move comes in wake of the killing of 14 civilians by security forces earlier this month.

On December 4, six coal mine workers, travelling back home along the Tiru-Oting road in Mon district, were gunned down by personnel of the 21 Para Special Forces. The same evening seven villagers who were part of a search party formed to look for the miners when they did not come home on time were also gunned down by the security forces when the villagers caught them allegedly hiding the bodies of the dead miners in a bid to allegedly sneak them away across the border to Assam. Another villager was killed when protesters attacked Camp 27 of Assam Rifles after the funeral of the dead miners was suddenly cancelled without proper intimation to families who had gathered at the Mon helipad to get the bodies of the deceased. All the 14 people killed belong to the Konyak tribe.

Given how security forces are virtually shielded from accountability for their actions because of the AFSPA, the chorus to repeal the draconian Act has been growing, not just in Nagaland, but across the North East. The resolution to scrap AFSPA has been taken by the Nagaland government previously as well in 1971 and 2015.

On Monday, the resolution to scrap AFSPA in the state was moved by none other than Nagaland Chief Minister Neiphiu Rio, who was quoted by various media reports as saying, ““This House must sound the desire of the people. The desire of the people is to repeal this undemocratic and draconian law.” The House condemned the Oting massacre and demanded justice for the families of victims.

Deputy Chief Minister Yanthungo Patton was quoted as saying, “The state government has consistently opposed the notification declaring Nagaland as a disturbed area on the grounds that the overall law and order in Nagaland has been good for many years now. Further, all the Naga Political Groups are in ceasefire with the Government of India. The ongoing peace talks are proceeding in the right direction, giving hope of an early solution to the Naga political issue.”

Meanwhile, the Army on Monday issued notice about its inquiry into the Oting firing incident, asking members of the public to share information, videos, pictures etc.

Related:

Nagaland gov’t to hold special session on AFSPA

Security forces gun down 13 civilians in Nagaland

Nagaland killings: Chorus grows for repeal of AFSPA

Army tried to hide bodies: Nagaland DGP’s report

Nagaland Killings: NHRC takes suo motu cognisance

So long as AFSPA protects soldiers from accountability, such atrocities will continue: HRW

The post Nagaland Assembly adopts resolution to repeal AFSPA appeared first on SabrangIndia.

The Armed Forces Special Powers Act (AFSPA) is and always has been in the news for all the wrong reasons; human rights violations being the foremostand paramount. Innocent lives have been lost over the years in states under AFSPA. At present the draconian law is still active in the states of Assam, Nagaland, Manipur, some parts of Arunachal Pradesh as well as Union Territory of Jammu and Kashmir.

The critics of AFSPA and those making demands for its repeal are aware of the extent and scope of the Act, and how this has destroyed lives of innocent civilians, often entire families, over the years. It is due to these abuses of power by the personnel of the armed forces who have largely avoided being held accountable for their inhuman acts, that the voices of dissent have again, resurfaced and grown stronger after the killing of 14 civilians by personnel of the 21 Para Special Force in Nagaland.

Here’s a closer look at the contentious Act, its provisions, why it is finally time to repeal it and whether there is political will for the same.

Where is AFSPA in operation?

When AFSPA was enacted in 1958, it was only in place in Assam and Manipur, to curb rebellion by Naga separatist groups. In 1972, it was extended to Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh. The law became active in Assam, in 1990, the same year it was applied to Kashmir Valley. It was extended to Jammu province in 2001. However, the Ladakh region, which is now a separate Union territory was never under AFSPA.

AFSPA was in operation in Tripura for 18 years before it was withdrawn in 2015.In 2018, AFSPA was lifted from Meghalaya.

In October this year, AFSPA was extended tothree districtsof Arunachal Pradesh, namely, Tirap, Changlang and Longdingand areas under Namsai and Mahadevpur police stations. The restrictions from Roing police station in Lower Dibang valley and Sunpura police station in Lohit district were lifted.

AFSPA continues to be applied to Manipur (excluding the Imphal Municipal Council area) and of course across Nagaland. In Assam, where the political party in power isa the same at the one at the Centre, AFSPA continues to be in operation cross the entire state, with the latest 6-month extension granted in August 2021.

Who holds the reins under AFSPA?

As per the Act, under section 3, the power to declare a State or Union territory as a “disturbed area” lies with the Governor of that State or the Administrator of that Union territory or the Central Government. This implies that while the state government may by itself make such declaration since it is aware of the situation on ground, the central government is also given complete power to do the same without having to consult with the state government that is governing that state. While the power that lies with the State government can still be validated under the federal system that we follow as per our Constitution, the absolute power on similar lines given to the Central government clearly allows intrusion of the Union government into the internal affairs of a State.

In Naga People’s Movement of Human Rights v Union of India, (1998) 2 SCC 109 the Supreme Court had also said, that even if section 3 does not provide for it, “It is, therefore, desirable that the State Government should be consulted and its co-operation sought while making a declaration (by the Central government).”

Even for institution of any legal proceeding against any person (read armed forces personnel) the sanction of only the central government needs to be sought, even though it is the state’s resident that might have been affected by the acts of those armed forces personnel.

The Ministry of Defence and the Ministry of Home Affairs have stated in replies to Right to Information (RTI) requests from human rights activists in J&K that no sanction has been granted between 1990 and 2012 by either ministry.[1]

Has AFSPA been readily accepted in any state?

After the deadly attack on innocent civilians on December 4 in Nagaland, the state cabinet has taken up the cudgels to oppose AFSPA and call for its repeal, however the other sates in the region are also echoing the same demand.

Meghalaya Chief Minister Conrad Sangma also called for repeal of AFSPA, while Meghalaya was able to rid itself of the law in 2018.

Assam has readily accepted and keeps extending AFSPA, the main reason for its support is that the same party that is in power at the Centre, is also in power in the state.

In 1990, it was applied to Kashmir Valley and in 2001 it was extended to Jammu province as well. Outlookhas reported that till July 2018, when Chief Minister Mehbooba Mufti’s government was in power, the erstwhile state’s successive governmentshad sent just 50 cases for prosecution sanction against the armed forces personnel under AFSPA, 1990. However, the Union government denied the permission in all the cases. Since the abrogation of Article 370, no such cases have been sent for Centre’s sanction. During his six-year tenure, 2009-2014, former chief minister Omar Abdullah constantly demanded the gradual withdrawal of the AFSPA from “peaceful areas” of Jammu and Kashmir. The Army has however, expressed its disapproval for any calls for repeal of AFSPA. The Army said those demanding withdrawal of the AFSPA were coming from Pakistan, the ISI, militants and secessionists. The Army in November 2011 argued, “The Country could be compelled to grant the State independence by 2016 if government plans to lift AFPSA from some areas.” 

“In the case of Nagaland at least an FIR was registered. The Home Minister took notice of it. In the case of Jammu and Kashmir, they don’t even give bodies back. In the Hyderpora case, three persons were killed and they didn’t even return bodies. We want AFSPA to be vacated not only from Nagaland but from J&K so that incidents like Hyderpora can be prevented,” says Mehbooba Mufti, former Chief Minister of the erstwhile state of J&K.

For Nagaland, AFSPA has been extended until December 31 and it is to be seen what the repercussions will be, if the Centre does not accede to the demands torepeal AFSPA.

Which sections of the law give the armed forces unbridled powers?

The intention of the Act is to help a “disturbed area” wherethe ground level situation is so dangerous that the use of armed forces in aid of the civilians is necessary. It is through use of this rationale that a state government or the central government is supposed to apply AFSPA in that part of the state or the whole state or UT, as the case may be.

However, there is no set timeframe that limits the duration for which a region or state may be declared as “disturbed area” and resultantly, most of the north eastern states have perpetually been under AFSPA; while only being subjected to periodical reviews which are nothing but mechanical declarations every six months in the government gazette.

Under section 4 of AFSPA, an officer of the armed forces can fire upon or use force upon any person “acting in contravention of any law or order for the time being in force in the disturbed area”, “after giving such due warning as he may consider necessary.”

Under section 4(a), the personnel can even prohibit assembly of five or more persons and can prohibit carrying of “things capable of being used as weapons.”

The personnel can even destroy any “shelter” or fortified position from where armed attacks are likely to be made.[Section 4(b)]

Further, they can arrest, without warrant, any person against whom there is suspicion that he has or he might commit a cognisable offence and is also allowed to use force to make such an arrest.[Section 4 (c)]

They also have the power to enter and search without warrant, under section 4(d), any premises and may use force for that purpose. They are required to hand over such arrested persons to the nearest police station but not within a stipulated time line only “with the least possible delay”, under section 5.

The powers are unbridled on the face of it, but the armed forces are furthermore protected under section 6 where the Act provides that no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person acting under the Act.

When has AFSPA been brought into question before?

While the demand for repeal of AFSPA has been consistent, it gains traction every time such big incidents take place.

Justice C Upendra, the Commissioner appointed by the Manipur Government to enquire into the killing of a young woman, Amina Devi, in April 1996, articulated this in his report: If the person(s) responsible for indiscriminate firing resulting to the loss of the life of innocent people on mere pretext of self-defenceor for apprehending a person or persons suspected to be extremists are left scot-free, this would amount to anarchy.[2]

When hearing India’s second report on its adherence to the ICCPR, the United Nations Human Rights Committee held that the Armed Forces (Special Powers) Act (and other special legislation in force in India) effectively derogated from the right to life and other rights in the covenant.[3]

AFSPA in the Court

In the well-known Pathribal encounter case the Army had killed five civilians in Kashmir in extra-judicial killing (read “fake encounter”) and passed them off as foreign militants. In 2007, the CBI filed a chargesheet in the case, which the Army challenged on lack of sanction. Five years later, in 2012, the Supreme Court allowed the Army to choose between court martial or criminal proceedings against the accused. Naturally, they chose the former. In January 2014, the Army in its verdict said evidence recorded could not establish a prima facie case against any of the accused.

The constitutionality of the Act has been challenged in the Naga People’s Movement of Human Rightscase in 1998. The court however refused to observe that AFSPA was akin to declaration of emergency in the state and also that the Act conferred arbitrary or unguided powers of declaring an area as “disturbed area”. The court had however, directed that the declaration can/should be made for limited periods and has to be reviewed every six months.

The Judgement further held that “Although a declaration under Section 3 can be made by the Central Government suo moto without consulting the concerned State Government, but it is desirable that the State Government should be consulted by the Central Government while making the declaration.” However, no legislative changes were made to lend statutory weight to this judicial directive. The court also did not deemfit to accept that the conferment of power to make a declaration under Section 3 on the Central Government was violative of the federal scheme asenvisaged by the Constitution.

Is application of AFSPA truly justified?

The cases of withdrawal of AFSPA from states of Tripura, Mizoram and Meghalaya are good case studies to show that once levels of insurgency are curbed, a strong case for withdrawal is made. These states have been managing well without it. Even Punjab, which was under AFSPA between 1983 and 1997 was taken off its radar as internal aggression ended.

The need for AFSPA in Assam also does not arise since there are no activities from ULFA or the Bodo rebellion. Even in Nagaland, dominant rebel tribes accepted the Indian Constitution, signed up for peace, and joined the mainstream following the Shillong Peace Accord of 1975. Even NSCN (I-M), which used to fight guerilla, signed a ceasefire accord in 1997. Thus the threat is minimal and does not warrant the state to be under AFSPA.

Is there a lack of political will for a repeal of AFSPA?

Amidst itinerant calls for the repeal of AFSPA, governments at the centre balk from a repeal of this regressive legislation. Today, it is unlikely that the hardline BJP regime at the Centrewill even respond to calls for a repeal. It is noteworthy that even UPA I nor UPA II, led by the Congress, relented to such consistent demands when they were in power. This was despite the 2005 Justice Jeevan Reddy Committee report on the question. In 2021 India, a government unwilling for any debate or dialogue – though it was compelled to bend to the sustained protest by farmers that lasted a year since November 2020 – is unlikely to concede this demand.  A gradual withdrawal from peaceful areas may still be a first step.

Related:

Repeal of AFSPA will strengthen spirit of Constitutional democracy: WGHR
AFSPA: A colonial remnant of a law in a 75-year-old democracy
Nagaland gov’t to hold special session on AFSPA
So long as AFSPA protects soldiers from accountability, such atrocities will continue: HRW

The post The What, Where, Why and How of AFSPA appeared first on SabrangIndia.

The Working Group on Human Rights in India and the United Nations (WGHR) has issued a statement expressing “solidarity with the coal mine labourers and protestors killed and injured during the horrific incidents at Oting, Mon district, Nagaland”. 14 civilians were killed in three incidents on December 4 and 5, 2021.

In the first incident, personnel belonging to the 21 Para Security Forces opened fire upon a convoy of coal mine workers, all members of the Konyak tribe, killing six men and injuring two. According to one of the survivors, the security forces opened fire without warning or verifying their identities. The incident took place on the road connecting Tiru and Oting villages in Mon district. Shortly afterwards, villagers who had formed a search party to look for the missing miners reached the spot, they found the security forces “hiding the bodies” of the dead in an alleged bid to whisk them away to their base camp across the border in Assam. This has also been corroborated by a joint report of the Nagaland Director General of Police (DGP) and the Commissioner. When these villagers protested, security forces opened fire again, killing seven more people.

The following day, after funeral proceedings for the miners at the Mon helipad, were cancelled suddenly, repotedly without any prior intimation, another group of protesters ransacked Assam Rifles camp 27. One more civilian was killed during this incident, thus taking the total tally of civilian deaths to 14. These deaths have enraged the entire region that has been under provisions of the Armed Forces Special Powers Act (AFSPA).

It is the AFSPA, that is blamed for the impunity with which the army operates in the region. The AFSPA has been in effect in the North East since 1958, while Nagaland became an Indian state in 1963 and has thus remained under AFSPA for close to sixty years. AFSPA allows security forces to conduct operations anywhere and arrest anyone without a warrant. This power has allegedly been misused by security forces to torture locals with several allegations of gendered crimes also mode from time to time.

The WGHR draws attention to this very aspect of the law and says, “This is not the first time that gross human rights violations have been committed under the Armed Forces Special Powers Act, 1958 (AFSPA) that grants legal immunity for all acts to armed forces when enforced. As long as impunity prevails over justice, this, tragically, may not be the last time.” It further says, “The repeal of AFSPA has been a long-standing demand of civilians, survivors, families of victims, human rights movements and activists around India, particularly those that have borne the brunt of this law in the North-East of India.”

Showcasing how AFSPA has repeatedly drawn flak from international agencies, it says, “AFSPA also continues to attract significant criticism from UN human rights mechanisms. The UN Human Rights Committee stated in 1997 that exercising power under AFSPA amounts to exercising emergency powers without resorting to the procedure laid down under section 4 of the International Covenant on Civil and Political Rights (ICCPR).”

The WGHR also lists the following instances when the human rights body has pointed out the need to closely examine and discard the draconian Act:

• The Special Rapporteur on Summary, Arbitrary and Extrajudicial Execution, in his analysis of the situation after his official visit to India in 2012, stated that the powers conferred on the armed forces of the Union under AFSPA go beyond permissible limits. He said that the right to life, which appears to be suspended under AFSPA, is a non-derogable right even in situations of emergency.

• The Committee on Elimination of All Forms of Racial Discrimination (CERD) in 2007 described AFSPA as racist and had urged the Government of India to repeal it within a year.

• The Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2014, also recommended the repeal of AFSPA, calling for sexual violence committed against women by armed forces to be brought under the purview of ordinary criminal law.

Noting India’s hesitancy to repeal AFSPA despite these instances, the WGHR says, “In the last three cycles of India’s Universal Periodic Review (UPR) at the United Nations Human Rights Council (UNHRC), several governments recommended the repeal, review or revision of AFSPA. These recommendations also addressed the accountability of security personnel, the regulation concerning detentions as well as victims’ right to appeal in accordance with international standards. The Government of India, however, has consistently not accepted, but only noted, these recommendations.” Pointing to possible future action, it says, “Similar recommendations are likely to be repeated in the 4th UPR cycle which will begin in October 2022. India will be one of the first countries to be reviewed.”

The entire statement may be read here: 

Related:

Nagaland killings: Chorus grows for repeal of AFSPA
Army tried to hide bodies: Nagaland DGP’s report
Nagaland Killings: NHRC takes suo motu cognisance
So long as AFSPA protects soldiers from accountability, such atrocities will continue: HRW

The post Repeal of AFSPA will strengthen spirit of Constitutional democracy: WGHR appeared first on SabrangIndia.

December 4, 2021, marked a dark day for Nagaland, as the state, unwillingly under the control of armed forces, suffered a loss of 13 innocent civilian lives at the hands of personnel of 21 Para Special Forces. It is such unfortunate incidents that remind the rest of the country of the plight of such states still reeling under the control of the armed forces after having been declared as “disturbed areas” under Armed Forces Special Powers Act (AFSPA) 1958, and why they have always voiced dissent against the law.

The AFSPA is a very brief law with limited provisions, just 6 sections which cover the ambit of the Act. Within these 6 provisions, the government has the power to declare areas as disturbed areas and to give special powers to armed forces and also allows it to protect the armed forces acting under it. A plain reading makes it seem like a law that was made to protect an area which is in a disturbed or dangerous condition, necessitating the use of armed forces along with civil power, to better protect the populace. But this succinct Act has engulfed Jammu and Kashmir and many states in the North East region for decades. Over the years it has only come to light that the armed forces bestowed with unbridled powers have acted in disregard of human rights and against the interest of the people they were meant to protect in the first place.

When AFSPA was enacted in 1958, it was only in place in Assam and Manipur, purportedly to curb rebellion by Naga separatist groups. In 1972, it was extended to Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh. The law came to Jammu and Kashmir in 1990. It was applied to Kashmir Valley in 1990, and in 2001, it was extended to Jammu province as well. However, the Ladakh region which is now a separate Union territory was never under AFSPA.

It has been long argued that a law like AFSPA has no space in a democratic country like ours and should be done away with. The law seems like a cousin of repressive colonial laws and does not fit in a 21st century democracy that has been independent for more than 75 years. The issue with the Act is not just that it grants unlimited and excessive powers to the armed forces, but also the impunity that comes along with it, which only makes matters worse, when you consider the rampant violation of human rights.

India is a Union but also a federation of states

The Nagaland cabinet has passed a resolution seeking repeal of AFSPA, which means the state does not wish for the Centre to continue to control a democratically elected state government and its people, through such an oppressive law. This brings us to reflect upon the mixed federal and Union structure of our country. Though purporting to be a division of legislative powers between the Union and the States, the Seventh Schedule to the Constitution, it is well accepted, does represent the division of powers between the Union and the States. the Constitution does not contemplate that the obligation to protect the States in the Union shall be carried out by the Union Government only by invoking Article 352 (external aggression or internal rebellion) or Article 356 (to ensure that the government of every State is carried on in accordance with the provisions of the Constitution); the said obligation can be performed in such manner as may be found appropriate, without of course violating the spirit and letter of the Constitution.

Brief history of Nagaland

Not wanting to accept any form of foreign domination, alien subjugation and exploitation, the Nagas in the “Naga Hills District” formally declared their independence on August 14, 1947, from the British Rule. The Nagas were invited to join the Union of India when it was formed for the first time in history in 1950, but they rejected the offer outright. On January 24, 1950, the Naga National Council (NNC) informed the Indian Government, the United Nations (UN) and those countries that had their embassies in Delhi that the Nagas do not accept the Indian Constitution.

To reaffirm the declaration of Naga Independence, the Naga people under NNC took the historical step to strengthen the Naga political movement as they organised a Naga Voluntary Plebiscite and informed the Government of India (GoI) on January 1, 1951, of their intentions. The Plebiscite was held on the May 16, 1951. The result tabulated eventually in March 1952 was 99.9% voted in favour of sovereign independent Naga state.

In June 1947, the NNC and Assam Governor Akbar Hyderi initiated negotiations to settle the Naga issue by way of an interim political and administrative arrangement.

As per theagreement, the Nagas were granted varying degrees of judicial and administrative autonomy. The Naga Council was also granted taxation rights. The Governor of Assam and the Government of India were to ensure the observance of the agreement for a period of 10 years, following which a decision was to be taken to either extend the agreement or enter into a fresh one. 

However, the clause about the 10-year period has been interpreted by the two sides differently. While the Nagas saw it as independence from India after 10 years, India took it to mean that a new agreement would be entered into should the present one fail to address all concerns sufficiently.

Hence, it has become abundantly clear that Nagaland wanted to be independent from India and now it has been relegated as a “disturbed area” and under the constant control of the central government and its armed forces, completely against the wishes and interests of the residents of the state.

AFSPA and the North East

Scrapping the AFSPA was one of the key demands of the draft framework agreement to maintain peace in the region, signed between the National Socialist Council of Nagaland (Isak Muivah) and the government interlocutor RN Ravi in 2015. However, the Act was not withdrawn.

The constitutionality of AFSPA had been challenged in the Supreme Court (Naga People’s Movement of Human Rights v Union of India, 1997). The petitioners and the National Human Rights Commission (NHRC) had argued that Parliament could not legislate on what was essentially a domain of the state — maintaining public order. However, a 5-judge bench upheld the constitutionality of the law unanimously.

“The conferment of the said power on the Central Government regarding declaration of areas to be disturbed areas does not, however, result in taking over of the state administration by the Army or by other armed forces of the Union,” the court had said. The court had also warned against armed forces using excessive force. However, the incident of December 4 is proof of the fact that this directive of the Supreme Court has not been followed at all.

IT has been widely acknowledged that t the general administration of at least two states, Manipur and Jammu and Kashmir are wholly dependent on the security forces.[1] The Act has been in force in Manipur since its inception.

AFSPA and the unbridled powers

Under section 4 of AFSPA, an officer of the armed forces can fire upon or use force upon any person “acting in contravention of any law or order for the time being in force in the disturbed area”, “after giving such due warning as he may consider necessary”.

The personnel can even prohibit assembly of 5 or more persons and can prohibit carrying of “things capable of being used as weapons”.

The personnel can even destroy any “shelter” or fortified position from where armed attacks are likely to be made.

Further, they can arrest, without warrant, any person against whom there is suspicion that he has committedor he might commit a cognisable offence and is also allowed to use force to make such an arrest.

They also have the power to enter and search without warrant any premises and may use force for that purpose. They are required to hand over such arrested persons to the nearest police station but not within a stipulated time only “with the least possible delay”.

The powers are unbridled on the face of it, but the armed forces are furthermore protected under section 6 where the Act provides that no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person acting under the Act.

That means the power of the central government in this regard is absolute, with the state government having no say in it.

Although the Supreme Court in the 1997 judgement asked that state government be consulted. It also directed that the same should be periodically reviewed. Accordingly, each notification for extension is valid for 6 months however, no real review takes place and the same is extended in the most mechanical manner without serious considerations of the situations on ground and without consultation with the State government in power.

AFSPA is colonial

AFSPA is based on a 1942 British ordinance intended to contain the Indian Independence movement during the Second World War and it was enacted in 1958 by independent India. Initially it was only in place in Assam and Manipur, purportedly to curb rebellion by Naga separatist groups. In 1972, it was extended to Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh. The law came to Jammu and Kashmir in 1990. While it was applied to Kashmir Valley in 1990, it was extended to Jammu province as well in 2001. However, the Ladakh region which is now a separate Union territory was never under AFSPA.

Sanjib Baruah explains in his book that the roots of the law go back to colonial policing, where the army and the police were viewed as complementary, not alternative, forces of control. People are effectively treated as subjects rather than as citizens of the country.

Political unwillingness and interest of armed forces

In 2016, then Chief Minister of erstwhile state of Jammu and Kashmir Mehbooba Mufti had suggested removal of AFSPA from certain areas of the valley. In response, some defence experts had said that this was not the time and the army had made it clear that it needed AFSPA to fight militants in J&K and the Centre was silent on the issue.

The Congress-led United Progressive Alliance presented the picture of a government that had good intentions frustrated by forces beyond its control, of natural compunctions that had to be set aside for national compulsions of security, defined by the military apparatus.[2]

In November 2014, former Home Minister P Chidambaram of Congress called AFSPA an obnoxious law. However, when he had the Home Ministry reigns in his hands, he had defended the law in a meeting with the United Nations High Commissioner for Human Rights. In 2010, there were again serious discussions on repeal of the law as over 120 protestors were killed in Kashmir Valley, however, when the Congress core committee met to discuss the proposal, differences arose between the home and defence ministries. Congress which was in power until 2014 maintained that there was lack of consensus between government and the army making it difficult to take a decision on AFSPA and had also said that he armed forces were not ready for a more “humane law”.

“The Army has taken a strong stand against any dilution of the AFSPA… We can’t move forward because there is no consensus. The present and former Army Chiefs have taken a strong position that the Act should not be amended… They also do not want the government notification [of bringing areas under the AFSPA] to be taken back,” Chidambaram had said in 2013, asking, “How does the government move forward…to make the AFSPA a more humanitarian law?” 

The UPA government made a pretense of reviewing the situation back then and showed failure of consensus. However, the BJP has showed no such signs. The pressure on the government is building up especially from the state government of Nagaland which seems determined to get the AFSPA removed. It is pertinent that the goal should be complete repeal of the law, however it depends on what of political pressure is built, and whether the central government feels compelled to make this move in interest of human rights. In 2015, the Union Home Ministry straightaway rejected the Justice Reddy Commission’s report.

Justice Reddy Commission

Way back in 2005, a Committee led by retired Supreme Court judge, Justice BP Jeevan Reddy, clearly stated that deployment of armed forces or para military forces of the Union to restore public order in any State ought to be an exception and not the rule. Unless it is absolutely essential for the aforesaid purposes, the armed forces of the Union should not be so deployed, since too frequent a deployment, and that too for long periods of time, carries with it the danger of such forces losing their moorings and becoming, in effect, another police force, a prey to all the temptations and weaknesses such exposures involve. Such exposure for long periods of time may well lead to the brutalisation of such forces – which is a danger to be particularly guarded against.

All this means that as soon as the public order is restored or the internal disturbance is quelled, the forces have to be withdrawn to their regular duties. The commission also noted that while our armed forces are one of the most disciplined in the world, situations may arise when they are deployed outside their regular duties, i.e. when they are deployed for maintaining public order or for quelling internal disturbance, certain members thereof may seek to take advantage of their power and position to harass or otherwise trample upon the rights of the citizens of this country.

The Committee had recommended the repeal of AFSPA, saying:

“The Act is too sketchy, too bald and quite inadequate in several particulars. It is true that the Hon’ble Supreme Court has upheld its constitutional validity but that circumstance is not an endorsement of the desirability or advisability of the Act. When the constitutional validity of an enactment is challenged in a Court, the Court examines (i) whether the Act is within the legislative competence of the Legislature which enacted it and (ii) whether the enactment violates any of the provisions of the Constitution. The Court does not – it is not supposed to – pronounce upon the wisdom or the necessity of such an enactment.”

The Committee also recommended that legislative form be given to the directives of the Supreme Court in its 1997 judgement.

To conclude

Even though this incident has come to light now only in Nagaland, it is not only Nagaland that needs to be free from AFSPA but also other states where it remains in operation and when calls for repeal from Nagaland are being made, one ought not to lose sight that this draconian law need not be in place in any part of the country.

Related:

So long as AFSPA protects soldiers from accountability, such atrocities will continue: HRW
Nagaland Killings: NHRC takes suo motu cognisance
Army tried to hide bodies: Nagaland DGP’s report

The post AFSPA: A colonial remnant of a law in a 75-year-old democracy appeared first on SabrangIndia.

On December 20, the Nagaland Government will hold a day-long discussion on the Armed Forces Special Powers Act (AFSPA) in the state assembly. Several rights groups and organisations such as the Naga Students’ Federation had demanded a special session amidst a growing chorus for repeal of the Act in wake of the killing of 14 civilians by armed forces on December 4.

One week ago, on the evening of Saturday December 4, 2021, eight miners were on their way back home from work, when personnel of the 21 Para Special Force opened fire on them at a stretch of the road between Tiru and Oting villages in Mon district, just about 100 kilometers from India’s international border with Myanmar. While six died on the spot, two survivors are being treated for their injuries at the Assam Medical College and Hospital (AMCH).

But what enraged people even more was how seven more people who were members of a search party that had gone looking for the miners when they did not come back home on time, were also shot dead by security forces. A joint report by the Nagaland Director General of Police (DGP) and Commissioners says the security forces were caught in the act of “hiding the bodies” of miners in a bid to take them away to their base camp across the border to Assam by these villagers. When the villagers protested, the security forces opened fire again.

On Tuesday, one of them, a 23-year-old named Sheiwang, who sustained bullet wounds to his elbow and chest, told the Indian Express, “Direct marise,” meaning the security forces just shot at them. He also contradicted Union Home Minister Amit Shah’s claim that the security forces first asked the vehicle to stop and opened fire only when they tried to flee saying, “We were not signalled to stop. They killed us directly. We were not trying to flee…we were just in the vehicle.”

Another civilian was killed when protesters attacked an Assam Rifles camp on December 5, after bodies of the dead were not brought to the helipad at Mon for a funeral. The change of plans had not been communicated to mourners who set properties and vehicles at the camp on fire.

Thus, the total civilian death toll in the entire sordid affair stands at 14, all from the Konyak tribe, the largest Naga tribe.

The impunity of the security forces became starker, when the Army issued a stament claiming it was a case of mistaken identity, something that can only be described as a feeble excuse given how no attempt was made to verify identity of the people before the security forces opened fire.

It is the AFSPA, that is blamed for the impunity with which the army operates in the region. The AFSPA has been in effect in the North East since 1958, while Nagaland became an Indian state in 1963 and has thus remained under AFSPA for close to sixty years. AFSPA allows security forces to conduct operations anywhere and arrest anyone without a warrant. This power has allegedly been misused by security forces to torture locals with several allegations of gendered crimes also mode from time to time.

In the aftermath of the Oting shootings, calls for the repeal of the draconian act that has been active in the region for six decades, have only grown. In fact, two Chief Ministers – Neiphiu Rio of Nagaland and Conrad Sangma of Meghalaya – have already openly called for its repeal. Given how state governments in both these states are formed in alliance with the Bharatiya Janata Party (BJP) that is in power at the Centre, this puts a strain on the alliance and casts a shadow over the BJP’s dreams of retaining its newfound foothold in the North East.

The decision to conduct a special day-long session was taken after a meeting of the Core Committee of the Parliamentary Committee on Naga Political Issue in Kohima on Thursday. This Committee headed by Rio himself comprises 60 MLAs and two MPs.

Several prominent voices in the region have spoken up against the impunity of the Armed forces. Former Nagaland CM TR Zeliang said, “An enquiry commission headed by a retired judge should be immediately set up and stringent action taken up against the security personnel involved,” adding, “Such brutality, especially from security forces, in a civilised society where we all yearn for peace and tranquility is most unfortunate.”

Meanwhile, the Naga Hoho, Nagalands apex tribal body has submitted a memorandum to Prime Minister Narendra Modi through the Nagaland Governor demanding clarity on the Centre’s position on the Indo-Naga political conflict and repeal of the AFSPA. The Indian Express quoted excerpts from the memorandum, “This is not an isolated incident and Naga people have been repeatedly humiliated and insulted without recognizing our rights to life.” It further said, “We make this statement in the background that, there is an ongoing political negotiation and peace process between the Government of India and the Naga people which can be testified by the signing of various Agreements with the Naga Political Groups (NPGs).” The memorandum said that the Naga struggle should not be equated with “terrorism” or “secesessionism”.

“Naga Hoho strongly feels that there is peaceful atmosphere in Naga areas as of now and therefore any policy that harms the atmosphere of trust and confidence would be so dear to all stakeholders and therefore, the AFSPA must be summarily repealed from our land,” said Naga Hoho.

SabrangIndia has reported previously on the timing of the shootings, given how the incident occurred even as the Indo-Naga Peace talks were underway. It is noteworthy, that repeal of the AFSPA is one of the key demands of the draft framework agreement to maintain peace in the region signed between the National Socialist Council of Nagaland (Isak Muivah) (NSCN-IM) and the government interlocutor RN Ravi in 2015.

Now the Naga National Political Groups (NNPG) that comprise seven separatist groups that are in talks with the Indian government as part of the Naga Peace Process have also dug their heels in, demanding the repeal of AFSPA. In a statement released, they said, “Indo-Naga issue is far past beyond AFSPA and the most regrettable cycles of violence over the last many decades should not be allowed to rear up its vicious head again to haunt the survivors and also to deter the posterity from stepping into the path of violence once again. Having fully reposed our confidence in the commitment of the GOI led by the charismatic and iron-willed leadership of Prime Minister Narendra Modi and Home Minister Amit Shah to resolve Indo-Naga issue without further delay, we also make an earnest appeal to revoke AFSPA from Nagaland as precursor to peaceful, honorable and acceptable political solution.”

While the National Human Rights Commission (NHRC) has taken suo motu cognizance of the December 4 incident, Human Rights Watch (HRW), a global human rights advocacy group has also demanded a repeal of the AFSPA.

Related:

Security forces gun down 13 civilians in Nagaland
Nagaland killings: Chorus grows for repeal of AFSPA
Army tried to hide bodies: Nagaland DGP’s report
Nagaland Killings: NHRC takes suo motu cognisance
So long as AFSPA protects soldiers from accountability, such atrocities will continue: HRW

The post Nagaland gov’t to hold special session on AFSPA appeared first on SabrangIndia.

The Ministry of Home Affairs (MHA) has declared the entire state of Nagaland as a “disturbed area” for six more months under the Armed Forces (Special Powers) Act (AFSPA), 1958.

According to an MHA release issued on Wednesday, “Whereas the Central government is of the opinion that the area comprising the whole of the State of Nagaland is in such a disturbed and dangerous condition that the use of armed forces in the aid of civil power is necessary,” reported the Hindustan Times.

The notification further said, “Therefore, in exercise of the powers conferred by Section 3 of the Armed Forces (Special Powers) Act, 1958 (No 28 of 1958) the Central government hereby declares that whole of the State of Nagaland to be ‘disturbed area’ for a period of six months with effect from 30th December, 2020 for the purpose of the said Act.”

Nagaland had been declared a “disturbed area” in June this year. The AFSPA has been in effect in the North East since 1958, while Nagaland became an Indian state in 1963 and has thus remained under AAFSPA for close to sixty years. AFSPA allows security forces to conduct operations anywhere and arrest anyone without a warrant. It has been condemned by many rights groups and most famously by human rights defender Irom Sharmila for its misuse by security forces to commit excesses, abuse and human rights violations.

In fact, scrapping the AFSPA was one of the key demands of the draft framework agreement to maintain peace in the region signed between the National Socialist Council of Nagaland (Isak Muivah) and the government interlocutor RN Ravi in 2015. However, the act was not withdrawn.

Though peace talks are at an advanced stage, the demand for a separate flag and Constitution for Nagaland remain contentious issues.

Related:

Nagaland steps one step closer to lasting peace

Turmoil in the NE: The Naga Pact and its ramifications

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Image Courtesy: Amarjit Longjam

New Delhi: The controversial Armed Forces Special Powers Act (AFSPA) was partially removed from Arunachal Pradesh, 32 years after it was imposed, a Ministry of Home Affairs (MHA) order said on Tuesday.
 
The Act, which gives sweeping powers to security forces, was partially withdrawn from three of the state’s nine districts, but would remain in force in the areas bordering Myanmar, the MHA order said.
 
The state, which was formed on February 20, 1987, had inherited the controversial AFSPA enacted by Parliament in 1958 and applied to the entire State of Assam and the Union Territory of Manipur.
 
After Arunachal Pradesh, Meghalaya, Mizoram and Nagaland came into being, the Act was appropriately adapted to apply to these states as well.
 
The Justice B P Jeevan Reddy committee had recommended scrapping of the AFSPA from the state.
 
The police station areas from where the AFSPA has been withdrawn are Balemu and Bhalukpong police stations in West Kameng district, Seijosa police station in East Kameng district and Balijan police station in Papumpare district.
 
AFSPA is declared in areas where armed forces are required to operate in aid to civil authorities. However, for AFSPA to become valid, an area needs to be declared “disturbed” either by the Central or the state government under Section 3 of the Act.
 
As per the MHA’s notification on Tuesday, the four police station areas in Arunachal Pradesh which were declared “disturbed areas” under AFSPA are no longer under the purview of the special law.
 
Arunachal Pradesh became a state on February 20, 1987, and since its inception, the controversial AFSPA – enacted by Parliament in 1958 – was applied to the certain parts of the state. In 2018, MHA had reduced AFPSA from 16 police stations areas bordering Assam to eight police stations, besides Tirap, Changlang and Longding districts, adjoining Myanmar.
 
One of the reasons cited by the Centre for imposing AFSPA in Arunachal’s Tirap, Changlang and Longding – all bordering Assam – and 16 other police station areas was the extortion and killing of security forces by the National Socialist Council of Nagaland (Isak-Muivah) and NSCN-K. While NSCN-IM signed a framework agreement with the government, NSCN-K capabilities have been depleted after the death of its leader SS Khaplang, an official said.
 
A review of the law and order situation in Arunachal Pradesh’s six districts was undertaken before the March 31 deadline for the validity of the “disturbed area” designation under the AFSPA.
 
In March last year, the AFSPA was removed completely from Meghalaya following improvement in the security situation.
 
The AFSPA is imposed in areas where armed forces are required to operate in aid to civil authorities. For the AFSPA to become valid, an area, however, needs to be declared disturbed either by the Central or the state government under section 3 of the 1958 Act.
 
Some parts of Arunachal Pradesh has the presence of banned militant outfits such as NSCN, ULFA and NDFB, another official said.
 
Under the Act, the security forces can arrest anyone or carry out searches on any premises.
 
With inputs from agencies.
 

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