13/04/2017 9:42 AM IST | Updated 13/04/2017 12:39 PM IST

Why The Govt's Demand For Immunity For Armed Forces In States Under AFSPA Is Worrying

The Centre sought to dilute an earlier Supreme Court order stipulating FIRs for 'encounter killings'.

Hindustan Times via Getty Images

The Centre on Wednesday moved a curative petition in the Supreme Court (SC) seeking to dilute its earlier judgment regarding the immunity granted to the army in states under the jurisdiction of the Armed Forces (Special Powers) Act (AFSPA), a contentious legislation that gives sweeping powers to security personnel in India's restive border states to search, detain, and even shoot at sight.

In July 2016, the SC had made it mandatory for a First Information Report to be filed to account for any "encounter killing" that takes place during a counter-insurgency operation. By issuing this order, the court effectively negated the protection against prosecution available to the armed forces stationed in states under AFSPA.

The rationale behind the ruling is grounded in a bitter reality, one that goes back to decades of activism, including Manipuri activist Irom Sharmila's prolonged fast and a tally of death that has grown exponentially over the years. For its part, the government argues that removal of the existing immunity would deter the armed forces from taking prompt action against the insurgents. Such hesitancy, it argues, especially during situations of expediency, would eventually undermine "peace and security" in the states under AFSPA.

It's worth revisiting the troubled legacy of AFSPA to understand these contrasting positions.

READ: Registering FIR A Must In Encounter Killings By Armed Forces, Orders SC

Use Or Misuse?

The Armed Forces (Special Powers) Act was passed in 1958 to bring certain 'disturbed areas' under control. It is currently enforced in parts of the Northeast and in Jammu and Kashmir to control insurgents, who are considered a threat to internal security by the government of India. During the secessionist movements in the 1980s, it was also implemented in Punjab and Chandigarh, and lifted only after 14 years, in 1997.

Not only are these areas vulnerable to strifes among the resident communities, divided along lines of caste, ethnicity and religion, these parts are also considered to have potentially secessionist tendencies.

AFSPA allows a governor of a state of Union Territory to flag security crises in a region, following which the Centre may send the armed forces to maintain peace and order. Once an area is deemed "disturbed", it has to maintain status quo for at least three months, as per The Disturbed Areas (Special Courts) Act, 1976.

The implementation of AFSPA, or its duration, is subjected to the discretion of the Centre, but has led to widespread public outrage. Reports of blatant misuse, or rather abuse, of the law by the armed forces have flowed through the years, especially in the Northeast and Kashmir.

Hundreds of people have been killed, wounded, abducted or vanished without a trace in states under the AFSPA. In Kashmir, life has been on a boil, especially since the middle of last year, after militant Burhan Wani was killed by the armed forces. The outpouring of public protests against the excesses of the Indian army led to the use of pellet guns that caused severe injuries to scores of young people, including children who have lost their sight or become severely maimed.

In Manipur, Irom Sharmila went into an indefinite fast for 16 years, demanding the Act to be repealed from the Northeast, shortly after the Malon Massacre, in which ten civilians were shot dead by the Indian Army in a village, as they waited at a bus stop. In the same state, a group of women demonstrated naked before the Indian Army headquarters after Thangjam Manorama Devi was allegedly raped and killed by soldiers in 2004.

Given this history of violence and bloodshed trailing AFSPA, the judiciary's attempt to make it less draconian and more accountable is a step in the right direction.

The Other Side

The Indian State, irrespective of the government of the day, continues to evade pleas to repeal AFSPA, justifying it as necessary use of force to contain disruptive forces and preserve the nation's sovereignty. It has backed its arguments with numbers, pointing out that in Manipur alone, 18,670 (90%) insurgents have been apprehended by security forces from 1990 to 2015, compared to 1,881 (10%) insurgents or terrorists, who have died in encounters.

However, the apex court isn't willing to go easy on AFSPA. Earlier this month, it asked the government to separate the cases related to the armed forces from the list of 265 incidents of extra-judicial killings in Manipur, which "it would deal with first on a plea-seeking probe into such alleged fake encounter killings."

The court also said it has "not received accurate and complete information on each of the 1,528 cases that have been alleged as fake encounters by various petitioners", adding there is an urgent need to collate the information to give any final direction.

The court's stance on the matter has consistently reinforced the notion that it's prudent to err on the side of caution than to allow the armed forces to continue acting with impunity.

(With inputs from PTI.)

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