The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the more draconian legislations that the Indian Parliament has passed in its 45 years of Parliamentary history. Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill based on mere suspicion that it is necessary to do so in order to "maintain the public order".
The AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of "aiding civil power." It was first applied to the North Eastern states of Assam and Manipur and was amended in 1972 to extend to all the seven states in the north- eastern region of India. They are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the "seven sisters". The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. This legislation is sought to be justified by the Government of India, on the plea that it is required to stop the North East states from seceeding from the Indian Union. There is a strong movement for self-determination which precedes the formation of the Indian Union.
The Armed Forces (Special Powers) Act (hereinafter “the Act” or “AFSP Act”) has been in force in several parts of India, including the state of Manipur in the northeast of the country, for more than 50 years. The vaguely formulated provisions of the Act grant extraordinary powers to the Indian armed forces in the so-called “disturbed areas” where it is applicable. The Act has been at the heart of concerns about human rights violations in the region, such as arbitrary killings, torture, cruel, inhuman and degrading treatment and enforced disappearances. Its continued application has led to numerous protests, notably the longstanding hunger strike by Ms. Irom Chanu Sharmila in Manipur.
Under AFSPA, an Indian Armed Forces officer can do the following:
The history of the Act is marked by longstanding concerns over its compatibility with, and its impact on, human rights. Yet, no comprehensive up-to-date analysis of its conformity with applicable international human rights standards is available. The guardian of the Covenant – the ICCPR’s Human Rights Committee (hereinafter “the Committee”) – examined India’s last periodic report in 1997. It expressed a number of concerns but abstained from pronouncing itself on the overall compatibility of the Act with the ICCPR as the Act’s provisions were at that time subject to a challenge before the Supreme Court of India.
However, in its judgement of 1997, the Supreme Court did not address the Act’s compatibility with international human rights law, ignoring a specific request of the Committee. Since then, India has not submitted any further periodic reports, thereby effectively depriving the Committee of the opportunity to reconsider the matter.
Meanwhile, in November 2004, following unprecedented public protest in Manipur, the Government of India set up a special committee chaired by a retired justice of the Supreme Court with the mandate to review the Act. The committee filed its report in 2005. Although it has never been officially published, this report was leaked informally, and its text is now in the public domain. Having carefully considered the various views, opinions and suggestions put forward by the representatives of organisations and individuals who appeared before it as well as the representations made by the concerned governmental departments, including the security agencies, the committee was of the firm and unanimous view that the Act “should be repealed”.(3) The committee emphasised that it found it impossible to recommend that the Act remain in force, with or without amendments. It did not, however, examine whether and to what degree the Act is compatible with India’s obligations under international human rights law. The recommendations contained in the committee’s report were never carried out or even publicly commented upon by the Indian government.
The present report finds that the AFSP Act is, both on its face and in its practical application, incompatible with India’s obligations under international human rights law, in particular, the ICCPR. REDRESS, the Asian Human Rights Commission and Human Rights Alert call on India to consider these findings urgently and to give effect to the rights recognised in the Covenant, as required by the ICCPR and India’s constitution. This would require repeal of the Act, which has been discredited as a symbol of arbitrary law-enforcement, and has significantly contributed to the perpetuation of a state of exceptionalism that fosters human rights violations.
Which other states are under AFSPA right now?
Assam, Nagaland, Manipur (except the Imphal municipal area), Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam), Meghalaya (confined to a 20-km belt bordering Assam) and Jammu and Kashmir.
In 2015, The Tripura government has revoked the Armed Forces (Special Powers) Act (AFSPA) as insurgency is on the wane in the State. Chief Minister Manik Sarkar announced the decision after a meeting with his Council of Ministers here on Wednesday.
The repeal of the Act, which has been in force in the State since February 1997, came less than a month after the election to the Tripura Tribal Areas Autonomous District Council. The CPI(M)-led Left Front won the election, though it lost a nine per cent vote share to a tribal party.
Tribal parties such as the Indigenous Nationalist Party of Tripura and the Indigenous Peoples Front of Tripura had been demanding the withdrawal of the Act, saying it was aimed at suppressing the State’s 33 per cent tribal population.
Why is this required?
The government (either the state or centre) considers those areas to be ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”
How does one officially declare a region to be ‘disturbed’?
Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the centre has the authority to send in armed forces for civilian aid. It is still unclear whether the governor has to prompt the centre to send in the army or whether the centre on its own sends in troops.
Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.
What about the state government’s role?
The state governments, as in Tripura’s case, can suggest whether the Act is required to be enforced or not. But under Section (3) of the Act, their opinion can still be overruled by the governor or the centre.
Is the Act uniform in nature?
No. Originally, it came into being as an ordinance in 1958 and within months was repealed and passed as an Act. But, this was meant only for Assam and Manipur, where there was insurgency by Naga militants. But after the northeastern states were reorganized in 1971, the creation of new states (some of them union territories originally) like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA Act to be amended, so that it could be applied to each of them. They may contain different sections as applicable to the situation in each state.
What about Jammu and Kashmir? There were reports saying that it technically wasn’t a disturbed area after 1998.
This is a bit more complex. Jammu and Kashmir (as with a lot of things) has a separate legislation for this—its own Disturbed Areas Act (DAA) which came into existence in 1992. So, a report, even if the DAA for J&K lapsed in 1998, the government reasoned that the state can still be declared disturbed under Section(3) of AFSPA.
Is Tripura then the first state to completely do away with AFSPA?
No. It was applied in Punjab and Chandigarh in 1983 due to secessionist movements and lasted for 14 years until there 1997. What is interesting was that while the Punjab government withdrew its DAA in 2008, it continued in Chandigarh till September 2012 when the Punjab and Haryana high court struck it down following a petition filed by a local member of the Janata Dal (United).
The recent remark by Supreme Court on 8 July 2016, it states that there was no concept of absolute immunity from trial by a criminal court if an Army man had committed an offence. While being sympathetic to the pressures that security forces face in conflict zones, the apex court also removed any ambiguity on the need to investigate allegations of extra-judicial killings. This end of hunger strike also coincides with the 70th anniversary of the Quit India Movement, which is a symbolic day of remembrance for India’s struggle for freedom against British colonizers.
Irom Chanu Sharmila, the Iron Lady of Manipur, on 9 August 2016 ended her 16-year-long hunger strike outside the Jawaharlal Nehru Institute of Medical Sciences in Imphal, Manipur.
Sharmila, 44, has been fed through nasal tube since November 2000. Moreover, she spent most of her time in judicial custody in a hospital in Imphal.
Moments after ending the fast, Sharmila announced that she wants to be the Chief Minister of Manipur, so that she may bring some positive changes in the state. As per her, democracy is not available in the state.
The Iron Lady of Manipur went on a hunger-strike at the age of 28 following a massacre in Imphal in which 10 persons were killed. Her primary demand was repealing of the Armed Forces (Special Powers) Act (AFSPA) of 1958 from her state.
Irom Chanu Sharmila
• Born on 14 March 1972, the Iron Lady of Manipur is also known as "Mengoubi" ("the fair one").
• She is a civil rights activist, political activist. She is also a poet.
• She began her hunger-strike, the world's longest hunger strike till date, on 2 November 2000 by refusing food and water for more than 500 weeks.
• On International Women’s Day 2014, she was voted the top woman icon of India by MSN Poll.
• Amnesty International has declared her as a Prisoner of Conscience.
Awards and Honours conferred on the Iron Lady includes
• In 2007, she was awarded the 2007 Gwangju Prize for Human Rights. She shared the award with Lenin Raghuvanshi of People's Vigilance Committee on Human Rights, a northeastern Indian human rights organisation. The Gwangju Prize is given to "an outstanding person or group, active in the promotion and advocacy of Peace, Democracy and Human Rights".
• In 2009, she was awarded the first Mayillama Award of the Mayilamma Foundation "for achievement of her nonviolent struggle in Manipur".
• In 2010, she won a lifetime achievement award from the Asian Human Rights Commission.
• In 2010, she also won the Rabindranath Tagore Peace Prize of the Indian Institute of Planning and Management, which came with a cash award of 5100000 rupees.
• She also won the Sarva Gunah Sampannah "Award for Peace and Harmony" from the Signature Training Centre.
There have been various moments of intervention by the central government to recognize this issue and withdraw the draconian law called AFSPA. To help this cause many commissions have been setup to solve the crisis, which include the 2005 recommendations of the Justice Jeevan Reddy Commission set up to “humanise the AFSPA”, as former Prime Minister Manmohan Singh said; the 2005 Veerappa Moily-led second Administrative Reforms Commission (ARC); and the2013 Justice J.S. Verma Committee set up in the wake of the December 16, 2012, Delhi rape case, looking into reforms to speed up as well as ensure conviction in rape cases.
While the Justice Jeevan Reddy Commission and the ARC had no doubt that the AFSPA had to go and that its provisions be incorporated into a civil Act, the Justice Verma report mentioned the Act as a part of a section on offences against women in conflict areas. “Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law,” the report said, adding that “there is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.” This resonates with the ruling by the Supreme Court in July that the Army and police are not free to use excess force even under the AFSPA. However, none of these have made any real difference to the status of the AFSPA.
There is obviously a very strong lobby, not just of the military but also a prominent section of the Indian intelligentsia, which believes that the country cannot hold itself together without the use of its military. This is indeed a sad reflection on a country which calls itself a republic. What does it say about India that it does not trust, even after nearly seven decades of independence, its people or its police? If in a republic the military is an instrument of war, can it wage war on its own people?
It is true that there are many violent insurrections in India which must be met militarily, at least in the short run. But if the situation has not subsided even after so many years, isn’t there something seriously wrong with the nation itself?
Keeping internal order is the job of the police. And if the firepower of the police is felt to be inadequate sometimes, it is understandable that the military has to be called in its place. However, should not the military in such situations be seen as doing policing duty and therefore be put under the provisions of civil laws for as long as it performs these duties? If India thinks this is war, it should in all fairness allow international laws of war, such as the Geneva Conventions and Hague Conventions, to be invoked, allowing international bodies such as the United Nations and the International Committee of the Red Cross to intervene and moderate. And if it doesn’t think so, then what is wrong in asking the military to be governed by civil laws while on civil policing duties? In the mistrust of its own people and in the military aggression on its own people sanctioned by the AFSPA, India has inherited the DNA of the imperialist administration. Should not this vestige of injustice from the past be purged?
Martyr for AFSPA: A challenge
This is the campaign that Ms. Sharmila has been advocating. The possible loss of focus of this campaign because of her changed stance now is what has given cause for anxiety for others in the campaign. Ms. Sharmila herself sounded exasperated last week when she spoke to the media about what she described as lack of support from the public. Here at least, in her longing for a positive outcome, she may have read too much into the public mind. The deluge of support messages and stunned responses to her decision is evidence of this. What the public could not do was emulate her. Nobody can.
The AFSPA campaign depended too much on Ms. Sharmila. This jolt should serve as a wake-up call for everyone in the campaign; they should realise how the cause must always remain greater than the leader, any leader. They must admit that there were many amongst them who were looking for a martyr in Ms. Sharmila, and are therefore now disappointed. This hunger for martyrs is a sign of Manipur’s weakness, where the cowardly try to shine in the reflected halo of those who have dared to court death. Courting death is nothing to be proud of, so there is nothing to be sad about Irom Sharmila abandoning her dance with death by starvation.
How Irom Sharmila Survived for so long: Liquid diet and solid resolve of Irom Sharmila
What happens to a body deprived of solid food for so long? What does a ‘liquid diet’ mean?
On Tuesday, Irom Sharmila Chanu had her first taste of solid food in 16 years — breaking with a dab of honey a protest fast during which she was force-fed only juices and liquid baby food through tubes in her nose. She shook with tears, but a day later said eating the normal way again had caused her no discomfort, and that she was feeling ‘completely healthy’. What happens to a body deprived of solid food for so long?
Solid vs Liquid
According to experts of gastroenterology and nutrition, a liquid diet is “physiological” — and has no negative side effects as long as it fulfills the Recommended Dietary Allowance (RDA) — the estimated amount of a nutrient (or calories) per day considered necessary for the maintenance of good health. Which means that if a woman leading a sedentary lifestyle consumes a diet equivalent to 1,800 calories, it does not really matter whether she is consuming solid food or liquid.
In medical terms, experts say, a liquid diet means consistency, which varies under different circumstances. There are three basic liquid diet types.
One, for purposes of hydration before an intestinal procedure — which is of a short duration and, therefore, the calorie or protein composition of the diet is not considered.
Two, in cases of acute pancreatitis, where, to ensure that pain is not aggravated, a liquid with relevant calories but no protein or fat, is given. Usually, liquids such as coconut water are recommended.
The third instance is of patients on tubes, like in the case of Sharmila. In this condition, all nutrient requirements recommended by the RDA must be met. Experts say patients can then be kept under such circumstances for a “long time”.
The ‘Home’ Recipe
Sharmila was nose-fed a liquid diet made from boiled rice, dal and vegetables — a kind described by doctors and experts as a “home-based” liquid diet. This diet, which is the most affordable and, therefore, most commonly given, usually has dal water mixed with supplements like milk, egg, refined oil, sugar, custard powder and protein powder that would include whey and casein. Since the Indian diet is predominantly a carbohydrate diet, the liquid diet too is 60%-65% carbohydrate, with fat and protein not exceeding 30% and 15%. It is must also be ensured that the liquid contains 1 kilo calorie/ml, usually split in five meals, adding up to around 2 litres and approximately 6-8 glasses per day, experts say. Dilution is “detrimental”, and could lead to complications in the kidney, experts say.
The Ideal Diet
The home-based diet is not ideal, especially if given over a very long time. A common alternative is a polymeric feed, a commercially manufactured mix in which nutrients are present in a manner that mimics a normal diet. But a polymeric diet is expensive — as high as Rs 800 per day. If the intestines are not functioning normally, there is elemental feed — where macronutrients (carbohydrates, protein and fat) are given in a predigested form. This diet is even more expensive — about Rs 1,300 per day, experts say. Finally, there are “disease specific” feeds, prepared for especially for patients with physiological complications.
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