Photo: HT
Photo: HT

Opinion | Can SC ruling on armymens’ plea lead to dilution of AFSPA?

AFSPA will change its character only through legislation in Parliament

Will the Supreme Court’s decision on 28 September lead to a dilution of the Armed Forces (Special Powers) Act, 1958, or AFSPA? Unlikely, even in the unlikely event the court rules on that day against an unprecedented petition by several hundred personnel of the Indian Army. The petitioners were earlier this week joined by a serving major general.

AFSPA will change its character only through legislation in India’s Parliament where it was born. The government’s own scathing reviews of AFSPA haven’t had any effect for more than a decade in the face of a massive pushback by the army and policy hawks. An adverse Supreme Court decision will only raise the patriotic pitch that is the current government’s go-to policy in times of political adversity and imminent general elections.

But, either way, it will have raised several tricky, sticky questions.

The petition by army personnel was triggered in early August, when the Central Bureau of Investigation (CBI) filed charges against Major Vijay Singh Balhara for allegedly causing the extrajudicial death in Manipur of a 12-year-old boy, Azad Khan. A commission of enquiry by retired Supreme Court judge Santosh Hegde had earlier identified the incident—from six that he chose at random to investigate from a basket of over 1,500 cases in Manipur alone—as an extrajudicial killing by the Major and his colleagues. CBI was subsequently told by the Supreme Court to investigate and file charges over these and other alleged incidents, all a result of a public interest litigation brought to the Supreme Court by the Extra-judicial Execution Victim Families Association, Manipur, and co-litigants, Imphal-based Human Rights Alert.

Later in August and early September, two separate groups of army personnel filed a plea at the Supreme Court against any possible dilution in AFSPA, in particular over human rights concerns. Major General Rajeeva Kumar has now joined the petitioners.

Far from diminishing interest in AFSPA, it has arc-lighted AFSPA. This, ironically, runs against the logic of burying public discourse, which is the armed forces’ primary concern for a law that permits impunity and immunity, and extrajudicial reach in the name of national security to any “commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces…in a disturbed area..." AFSPA is applied after the civilian administration declares a particular area as “disturbed". While AFSPA is today applied largely in North-East India, a similar law was enacted in 1990 for Jammu and Kashmir.

Those outside AFSPA-affected regions rarely understand the effects that the excesses of AFSPA—not legitimate operations, but collateral damage in the name of peace, including extreme harassment, torture and extra-judicial killings—have on the emotions and politics of such regions.

Over 13 years ago, on 6 June 2005, a committee to review AFSPA chaired by Justice B.P. Jeevan Reddy signed off on a report to the home ministry, suggesting that the Act be repealed. Because, numerous existing policing and national security laws, and constitutional provisions were already, and adequately, applicable to safeguard the security of India.

The home ministry buried the report. That was a mistake, and that report must, officially, be acknowledged and see the light of day. As should a similar report from 2007 by the Administrative Reforms Commission headed by Veerappa Moily.

Here’s another matter. My colleague Pradip Phanjoubam, the editor of Imphal Free Press makes an important point with which I’m in agreement. It is a fact that police piggybacks on the regime of impunity provided by AFSPA even though AFSPA doesn’t at all protect the police. This has proved particularly true in Manipur, as I have illustrated several times in this column.

The police, as Phanjoubam suggests, are aware, on account of judicial intervention and media investigations, that they can be charged for excesses and overreach under the laws of the land. That process has begun. In the army’s case, what if AFSPA, a law of the land, has itself outlived its application for national security—though, evidently, not the security of those charged with excesses?

This column focuses on conflict situations and the convergence of businesses and human rights and runs on Thursdays.

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