Revisiting the Armed Forces Special Powers Act, 1958
- Part 6 -
Laishram Malem Mangal *
Conclusion
How many more insurgent bodies would the AFSPA breed in the NE?55 There is a fear psychosis that the black laws and its regime may turn every individual in the region an insurgent or an extremist or a terrorist who do not form part of the state police system.
Would the state continue to bargain the life of these NE peoples with Ex-Gratia by unfortunate Manoramas?56 This is the only known part of the globe where life is bargained with Ex-Gratia after a man is killed by armed forces mistakenly and unfortunately.
Partial withdrawal of the Act from politically sensitive areas is not the voice of the people. Justice Jeevan Reddy report recommended to repeal AFSPA.[57]
It even expressed discontentment and repentance at upholding the AFSPA as constitutional by the Supreme Court in 1997, thus : "the Court (Supreme Court) does not – it is not supposed to pronounce upon the wisdom of the necessity of such an enactment."[58]
Reddy report made 2 significant recommendations, viz. Repeal of AFSPA and incorporating some provisions of it into the Unlawful Activities (Prevention) Act, 1967 as amended in 2004.[59] But the Central Government has so far remained silent.
The Second Administrative Reforms Committee had also recommended more or less in the same line of Reddy report. It seems that there is a political determination of the Central Government not to consider any of them. There is something more complex which prevents the Government from choosing either way.
The author along with other colleagues of the LMS Law College had the privilege to put forth the issue to repeal AFSPA to National Human Rights Commission, who had played crucial role in repeal of the infamous TADA and POTA, during the Winter Internship Programme, 2008-2009.
Chairperson of the Commission, Mr. Justice Rajendra Babu stated that the Commission could intervene in and exert pressure upon the Central Government if a fresh case is lodged with the Commission from civil society organizations in Manipur. The Commission's influencing role could be initiated in no time by lodging a proper complaint by human rights and civil society organizations and concerned citizens.
Another suggestive legal recourse would be an appeal to a larger bench of the SC than that of in NPMHR. The central issue to the appeal remains whether the SC judges who would decide upon the validity of the Act would rely upon the NPMHR precedent or examine afresh ab initio the validity of the Reddy report or fortunately struck down the law per se.
If the independence of the Judiciary should be honoured not letting the executive to have a veto the law would be hopefully, after a careful and thorough examination, struck down as unconstitutional and invalid.
But it requires objective satisfaction of the Appex Court which with all the findings and reports of the Government appointed Justice Jeevan Reddy and Administrative Reforms Committees would substantiate to strike down the Act as unconstitutional and invalid. They have to feel themselves of the reality happening in the north east without which they cannot determine the validity of the Act and people's legitimate concerns.[60]
SC judges who had been in the region even for a moment could well convincingly satisfy themselves of the need to examine the causative factors of the turbulence prevailing in this volatile part of the country and that AFSPA is not the solution. The realistic approach becomes crucial here.
One who has never had the opportunity to taste lemon or gooseberries would find it difficult to say how they taste and would never know until they do so. This was what exactly happened in the NPMHR case. Had any of the judges in the Constitutional bench in NPMHR were from the north east, he might have though dissenting come down heavily to the upholding of the statute.
The existence of the draconian AFSPA posses a serious setback and challenge to human rights jurisprudence. It was hundred percent colonial instrument used for legitimization and continuation of colonialsim.61 AFSPA undermines the very foundations of democracy, justice, human rights and rule of law.
Basic human rights curtailed and fundamental freedoms denied. It shook the conscience of all humanity. Democracy must be substantial rather than by virtue of the largest number of electorates.
The armed forces who are committing extra-judicial, arbitrary and summary executions under AFSPA can be made liable and punished accordingly following the same model of UN Security Council as adopted under former International Criminal Tribunal for Yugoslavia and Rwanda.
The International Criminal Court which came into effect from 1st July, 2002 is a recent development in this direction. India cannot evade from such a legal development. The same holds true for the Non-State entities also. Non-violent Gandhi's India is today unleashing tyranny in north east India.62 Democracy commits suicide.
Concluded.....
Authors Notes:
This is a paper presented at the Human Rights Day, 10th December, 2008 organized by the LMS Law College, Imphal on the theme "Human Rights, Law and Society". The topic of my paper is Revisiting the Armed Forces Special Powers Act, 1958.
* Laishram Malem Mangal is a student at LMS Law College, Imphal and contributes to e-pao.net for the first time. The writer can be contacted at malem(dot)mangal(at)gmail(dot)com
This article was webcasted on August 24th, 2009.
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