Official panel wants stringent safeguards on Army use

`Scrapping AFSPA will help erase feeling of alienation, discrimination in North-East'

8 October 2006
The Hindu

Official panel wants stringent safeguards on Army use
`Scrapping AFSPA will help erase feeling of alienation, discrimination in North-East'

Siddharth Varadarajan

New Delhi: Although the Union Home Ministry has let it been known that the Justice Jeevan Reddy Committee report on the Armed Forces (Special Powers) Act had recommended repeal of the legislation, they have also allowed the impression to go around that the panel merely wanted the prerogatives of the armed forces transferred wholesale onto another law, the Unlawful Activities (Prevention) Act, 1967.

In fact, a careful reading of the report makes it clear how mistaken that impression is. The Committee wants the AFSPA scrapped and the ULP Act amended but all its suggested amendments are aimed at inserting safeguards against possible abuse of power rather than expanding the scope of already existing powers.

The report makes its strongest argument in favour of the repeal of the AFSPA when it points out that both the mandate to fight militant organisations in the North-east as well as the legal protection sought by the Army, the Assam Rifles and other paramilitaries already exists in the ULP Act. "[It] can be said that there are two enactments for fighting militant/insurgent/terrorist organisations, groups and gangs in the North-eastern States, viz. the Armed Forces (Special Powers) Act whose application is limited to the North-eastern States alone, and the ULP Act which extends to the whole of India including the North-eastern states."

Starting from this premise, the report's major recommendations focus on how the ULP Act needs to be amended to specify the "powers, duties and procedures relevant to [the armed forces'] deployment" in the area pursuant to the ULP Act. The ULP Act, for example, "does not also provide for an internal mechanism ensuring accountability of such forces with a view to guard against abuses and excesses by delinquent members of such forces. It is this lacuna, which is to be supplied by inserting appropriate provisions in the ULP Act."

If the Jeevan Reddy panel's recommendations are accepted, the amended ULP Act would differ from the AFSPA in four crucial areas.

First, under the AFSPA, any officer not below the rank of an NCO (non-commissioned officer) may fire upon and even kill any individual or group carrying weapons or in contravention of orders prohibiting the assembly of five or more persons. The proposed amendment to the ULP Act limits the right to open fire to situations where an individual or group "is reasonably suspected of being in unlawful possession" of weapons. Thus, the killing of passengers at a bus stand in Malom, Manipur — which prompted Irom Sharmila to begin her hunger strike against the AFSPA six years ago — would not be protected.

Second, unlike the tendency in the AFSPA for soldiers to delay by more than 24 hours the production of an arrested person before a magistrate, the proposed ULP Act amendment provides for the handing over "forthwith" of any arrested person to the nearest police station.

Third, a major safeguard proposed in the amended ULP Act is the establishment of a grievance cell to "ensure public confidence in the process of detention and arrest." The three-member cells comprising a senior member of the local administration, a captain of the armed forces, and a senior police officer would be set up in each district where armed forces are deployed. "These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt enquiries and furnish information to complainant."

If the complainant is unsatisfied and furnishes an affidavit to this effect, the grievance cell must call upon the local commanding officer "to make appropriate enquiries and furnish information to the cell" within one week.

Lastly, the Committee has recommended that the Supreme Court's list of "Do's and Don'ts" — appended to its judgment on the constitutional validity of the AFSPA — be explicitly incorporated into the ULP Act so that their violation by the armed forces would be justiciable. Among these: women should not be physically searched or touched in any manner or arrested without the presence of women police. Only women police should search women."

While the campaign against the AFSPA in Manipur and elsewhere has been going on for many years, it was the arrest and custodial killing — including the alleged rape or sexual molestation — of a young Manipuri woman named Manorama Devi in 2004 that sparked off a more intense movement. None of the arresting personnel were women.

Prime Minister Manmohan Singh promised a delegation of Manipuri students later that year that he would set up a committee to make recommendations for a more humane law. In its report, the Committee said it had been guided by three basic conditions while devising a solution. First, "the security of the nation, which is of paramount importance," and which the Union and States must uphold. Second, "it is equally the duty of the Union and the States to not only respect the fundamental rights conferred upon the citizens of India by ... the Constitution, they are also under an obligation to ensure the conditions wherein the citizens can enjoy and avail [their] ... fundamental rights." Third, the "armed forces of the Union are meant to ensure the defence of the Union and all its parts."

Though the deployment of the armed forces may be unavoidable, the report stresses that "too frequent a deployment, and 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 exposures, it notes, "may well lead to the brutalisation of such forces — which is a danger to be particularly guarded against."