The Act must go

By Monalisa Changkija

Over the years, the Armed Forces (Special) Powers Act, 1958, has been debated and discussed threadbare by legal experts, human rights activists and organizations, the media and every one concerned, more importantly affected by this Act, particularly in the Northeast and Jammu & Kashmir. The Act has also been debated and discussed by citizens whose value-systems and beliefs are strongly rooted in the spirit and letter of democracy so unambiguously enshrined in the Constitution. And the unanimous conclusion, excepting the Armed Forces, particularly the Indian Army, is that this Act should be revoked and completely erased from a democratic society and culture such as India, the world’s largest democracy. Therefore, I will not repeat what have already been said by experts on the issue. 

I would only like to share a few thoughts on why this Act must be revoked and repealed at the earliest. While a good number of the brutalities committed on individuals and communities while enforcing this Act have been recorded and petitions filed in Courts, including the Supreme Court of India, need no repetition either, let me reiterate that even when only one woman, namely Irom Sharmila of Manipur, has sacrificed her life to protest against this horrid Act, instead of addressing her demand in a democratic way, the state keeps her in custody, as if she is guilty of committing a heinous crime, underscores what the Act actually signifies in the lives of ordinary persons, who have the misfortunate to have this Act imposed on their lands. In fact, Irom Sharmila aptly epitomizes the realities of people living under the shadow of this Act in the Northeast and Jammu & Kashmir — imprisoned and forced fed, with all constitutional, fundamental, legal and human rights denied, deprived and violated.

What this Act does is hold the guilty innocent until proven guilty and hold the innocent guilty until proven innocent. And inevitably, the guilty is proven innocent and the innocent guilty. Irom Sharmila decided to go on a fast unto death till the Act is repealed because she saw that this Act had turned soldiers into brutal beasts and innocent people slaughtered like lambs. But by keeping her under the custody of the state for her protest against this Act the state has turned her into a criminal. This indirect impact of the Act is hardly ever recognized. Sharmila’s incarceration for over decade also epitomizes the reality of people in the Northeast and Jammu & Kashmir, where the Act is imposed. The Act has turned all of us in the Northeast and Jammu & Kashmir into ‘suspects’, ‘sympathizers’ and even ‘criminals’. Do citizens of India deserve this dubious distinction without any recourse to justice? It’s almost character assassination actually. 

On the other hand, we cannot ignore the opinions of the Armed Forces, to be precise the Indian Army, who have been entrusted to combat and contain insurgency and militancy in the Northeast and Jammu & Kashmir either for their demand for the continuation of the Act to shoulder their responsibilities. But does combating and containing insurgency and militancy necessarily entail brutalities and human rights violations? When the Army is given a free hand and is protected for committing constitutional, fundamental, legal and human rights violations, where will the victims seek justice? We all know that all armies claim to uphold the finest traditions of military courage and valour, etc., but we have also seen Vietnam, and recently Iraq and Afghanistan. We continue to see Jammu & Kashmir, Manipur and various parts of the Northeast. Why is it that when the Army claims that an individual is an insurgent or militant or a sympathizer, it is taken as truth but when an individual or his/her bereaved family and friends say that s/he is not an insurgent, a militant or a sympathizer, it is taken as a lie? The Act also makes liars of those who live under its shadow further iterating that the Act assassinates the character of these unfortunate people.

Now, we have to also analyze whether the Army, as also the Act, is actually combating and containing insurgency and militancy. Particularly since the 1990s, the character, contents and contours of insurgency and militancy in the Northeast have changed and have increasingly stopped resembling insurgency and militancy of the early days of Independence. In other words, times have changed, so have our societies and so have the nature of insurgency and militancy. This is not to say that it was okay to impose this Act in the 1950s say till about 1980s but to underscore that the Act is totally obsolete, nay anachronistic, to deal with the present form of insurgency and militancy in the Northeast.  
I will not go into the difference between insurgency and militancy in the Northeast in the early decades of Independence and later particularly since the 1990s. Suffice it to say that criminalization of insurgency and militancy movements have occurred over the decades and the Act is unable to discern this change hence this Act is used against innocent people in the name of fighting insurgency/militancy instead of the proper authorities taking recourse to criminal laws for criminal activities of groups and factions. In the process, the people, caught in the crossfire, instead of being rescued and protected are also turned into criminals, conspirators and/or abettors of crimes and criminals. There is a huge difference between demands for autonomy and sovereignty on one side and criminal activities and acts of terror on the other. Over the decades since the Act was imposed in parts of the Northeast, the Act has failed to combat and contain insurgency/militancy, as well as combat and contain criminalization of such movements and criminal activities of members of such movements. The very fact that members of such movements indulge in criminal activities without fear and with gay abundance proves the point. But the Act has been very successfully in brutally suppressing and oppressing the people. 

Yes, conflicts and conflict situations exist in the Northeast hence it is all the more imperative that we delve into, even if cursorily, the history, culture, traditions and socio-economic dynamics of a given society, because conflict situations do not occur outside the environment of history, as also outside the periphery of societal existence. As a corollary, civil society, and insurgent and militant movements, also do not function and operate outside these factors. These are issues the Act does not take into cognizance; in fact, the Act is projected as the sole solution to conflicts and conflict situations, whatever the nature. 

Conflict in the Northeast is generally perceived from the prism of insurgency and militancy and worse still, it appears that such conflicts are perceived to exist in a vacuum or in isolation from the various other conflicts that not only create insurgency and militancy but also those that are created by insurgency and militancy. I would like to underscore that the commonly believed conflicts created by insurgency and militancy are only a part of the larger conflicts confronting the Northeast and it is these larger conflicts that pose perhaps greater challenges, and greater threats and risks, which the enforcement of the Act does not and cannot address. In fact, the Act takes no cognizance of such conflicts. Hence I ask whether the Act actually combats and contains insurgency and militancy.

Let us appreciate the fact that Northeastern societies were in existence centuries before the rise of some conflicts such as insurgency and militancy. In fact, these are recent developments, not even a century old. Older conflicts relating to histories, ideologies, politics, cultures, traditions, religions, beliefs, superstitions, lore and legends of primarily tribal societies are harder to deal with. All these have found their way into the melting pot of insurgency and militancy in the Northeast. The Act does not take cognizance of these factors and forces, which add fuel to the fires of insurgency and militancy; neither can it discern the tree from the woods.

The Government of India has not agreed to let the Army tackle the Maoist menace in several states reportedly on the ground that it cannot unleash the Army on our people. Does that mean that we in the Northeast and Jammu & Kashmir are not your people? The enforcement of the Act in these two regions seems to indicate that. Moreover, does a caste/class-system exist in Indian citizenship? The Act reinforces that feeling. 
Inarguably insurgency and militancy in the Northeast, Jammu & Kashmir or anywhere in the country, as also the Maoist menace, must be combated and contained, wiped out. But this Act has failed to do so. Yes, those entrusted to combat and contain any threat to the country must be enabled and empowered to do the necessary but surely not at the cost of innocent lives and limbs? What is required is political will and the commitment of the political powers-that-be to fully study and analyze each individual case of conflict, insurgency or militancy and address them individually with the required laws that not do step beyond the boundaries of the Constitution of India. In fact, political will and commitment would make this Act redundant, extraneous, to deal with the issue of insurgency and militancy.

The absence of peace, harmony, development, etc., as also the menace of extortion, economic blockade and bandhs are often attributed to insurgency and militancy but these are all consequences, not the causes, of the ‘situations’ in the Northeast. We have to delve deep into the past and analyze where and why things went wrong, not apply band-aids like the Armed Forces (Special) Powers Act to heal old wounds and old wrongs — real or imagined. We also have to know the cultures, traditions, belief-systems, value-systems, etc. of a people to know why they act and react as they do to be able to dream of sharing a common destiny. The Act cannot address these issues or provide any platform to address these issues. The Act also does not contain any provision to provide protection to those caught in the crossfire. The Act is completely unrelated and irrelevant to address the very issues it has been imposed to address. The Act must go.

(Paper presented at the 1-day Conference on We need to break the deadlock in the debate on AFSPA, to assess the Call to Repeal the Armed Forces (Special Powers) Act 1958. The conference was an initiative of the Northeast India Women Initiative for Peace (NEWIP), a network initiated by the Manipur Women Gun Survivors Network and Control Arms Foundation of India, and endorsed by People’s Union for Civil Liberty (PUCL), Indian Social Action Forum (INSAF), KRITI and others organizations.)

(The writer can be contacted at: tmchangkija@rediffmail.com,tmchangkija@gmail.com)