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The Undemocratic Silence On AFSPA

25/12/2015 8:31 AM IST | Updated 29/08/2016 9:02 PM IST
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AFP via Getty Images
An Indian paramilitary soldiers stand guard as the sun sets over Dal Lake in Srinagar on June 20, 2011. Indian Home Minister P Chidambaram has arrived for a two-day visit to Kashmir valley to review the overall security and political situation in the state, particularly measures being taken for the smooth and peaceful conduct of the 45-day-long Amarnath Yatra which is scheduled to start from June 29. The visit of Chidambaram has generated a renewed debate about the Armed Forces Special Powers Act (AFSPA) and implementation of eight-point formula announced by the Home minister for Kashmir after the summer unrest which claimed the lives of more than 114 people. AFP PHOTO/Rouf BHAT (Photo credit should read ROUF BHAT/AFP/Getty Images)

During question hour in Parliament this month, the government was asked in the Rajya Sabha what decision it had taken on the implementation of the Jeevan Reddy Committee's recommendations. This Committee had submitted a report to the government 10 years ago, recommending that the Armed Forces Special Power Act (AFSPA) be repealed. The government replied that no decision had been taken, saying it needed to "evaluate the situation on the ground" first.

It is worth remembering here that the Jeevan Reddy Committee was set up by the government in 2004 to review the functioning of the AFSPA, in the wake of the outrage following the alleged rape and murder of Manorama Devi by the Assam Rifles. In its report, the Committee had concluded that the AFSPA had become a "symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness" and said it was desirable and advisable that it be repealed.

[T]he government of India - 10 years after the Jeevan Reddy Committee submitted its report - has done nothing about its recommendations.

Since then, several national and international bodies have echoed these recommendations. For example, the Fifth Report of the Second Administrative Reforms Commission and the Santosh Hegde Commission (a fact-finding body set up by the Supreme Court in 2012) repeated and affirmed the observations of the Jeevan Reddy Committee. Several UN bodies and experts, including the Special Rapporteur on violence against women, its causes and consequences, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the situation of human rights defenders, have also called on the Indian government to repeal the AFSPA.

However, the government of India - 10 years after the Jeevan Reddy Committee submitted its report - has done nothing about its recommendations. And, as the answer to the question in the Rajya Sabha indicates, it has provided little meaningful explanation about why.

This is only one of many times a question related to the AFSPA, and the possibility of its repeal, has been raised in Parliament, and has met with a vague and unsatisfactory response. Earlier this year, the government was asked in the Lok Sabha whether it had "assessed the impact of the Armed Forces Special Powers Act (AFSPA) on human rights and the details thereof". The government responded saying the impact of the AFSPA was indeed assessed periodically, but provided no details of what these assessments demonstrated. In 2013, the government was asked to respond to the recommendation by the UN special rapporteur on extrajudicial, summary or arbitrary executions that the AFSPA be repealed, or at least radically amended. The government only said that there was no proposal to amend or repeal the AFSPA, and provided no response to why the recommendations of the UN special rapporteur were not being implemented.

It is unfortunate that despite several recommendations for its amendment or repeal, and evidence of its misuse, the AFSPA remains operational and on the books.

The draconian and undemocratic nature of the AFSPA lies at the heart of these concerns. The problems with the AFSPA have been spelt out several times before. It gives armed forces vaguely defined, sweeping powers, including the power to arrest without warrant, to enter and search any premises, and in certain circumstances, "fire upon or otherwise use force, even to the causing of death". There has been sustained documentation of how these broad powers have facilitated other human rights violations, including torture, enforced disappearances, and extra judicial executions. The AFSPA requires governmental permission to prosecute members of the armed forces in civilian courts, which fosters impunity. Such a law is inconsistent with India's international obligations, including guaranteeing the rights to life and to liberty, and victims' access to justice and effective remedy. These obligations arise, for example, under the International Covenant on Civil and Political Rights, a key global treaty that India joined in 1979 and which today counts 164 states as parties, comprising almost every country in the world.

The government's reluctance to meaningfully answer queries about the AFSPA, about inaction on recommendations and reports asking for its repeal, and about future plans to address the scathing criticism the act has received is deeply problematic. It is unfortunate that despite several recommendations for its amendment or repeal, and evidence of its misuse, the AFSPA remains operational and on the books. It is incumbent on the government to provide some public and official explanation for why this remains the case, and it is disappointing that despite repeated opportunities, the government has not done so.

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