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Why did India not abrogate the draconian AFSPA?

Armed Forces (Special Powers) Act (AFSPA), 1958 is an Act of the Indian Parliament that empowers the nation's Army to conduct search, arrest, or shoot to kill people without a warrant. AFSPA has been called a 'draconian' law by human rights activists. AFSPA gained international attention after Manipur activist Irom Sharmila decided to fast to protest against the Act, which lasted for 16 years.

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India’s Armed forces’ Special Powers Act (AFSPA) is a relic from the British rajThe Act owes its origin to the All-India Congress Committee resolution passed at its session held at the Gawalia Tank Maidan, Mumbai on August 8, 1947, MK Gandhi was named in the resolution as the leader of the movement. British viceroy and governor-general, Lord Linlithgow was determined to forestall the movement.

On August 15, 1947 (within a week of the above-mentioned session the viceroy promulgated the Armed forces (Special Powers Ordinance, 1942 under Section 72 of the Government of India Act, 1935. The underlying purpose of the ordinance was to confer special powers upon certain officers of the armed forces. The people at large called the new law “a license to kill”.

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Section 2 of the draconian ordinance provided

“(1) Any officer not below the rank of Captain in (the Indian) Military Forces and any officer holding equivalent rank either in (the Indian) Naval or Air Forces may, if in his opinion it is necessary for the proper performance of his duty so to do, by general or special order in writing require any personnel under his command to use such force as may be necessary, even to the causing of death, against any person who—(a) fails to halt when challenged by a sentry, or (b) does, attempts to do, or appears to be about to do, any such act as would endanger or damage any property of any description whatsoever which it is the duty of such officer to protect; And it shall be lawful for such personnel, when so ordered, to use such force against such person.

(2) The use of force against any person in obedience to an order under sub-section (1) shall include the power to arrest and take into custody such person, and the use of such force as may be necessary, even to the causing of death, in order to effect such arrest.”

It was an unprecedented law reflecting the British government’s desire to quell the freedom movement at all costs.

Even during the Punjab disturbances, culminating in the Jalianwala Bagh massacre, the armed forces did not enjoy such as towers, veritably called by people “licence to kills”. Back home, English law in Britain granted no such blanket protection to the armed forces. No such law was enacted by Britain to deal with violent acts during the Irish freedom movement from 1968 to 1997 until the signing of the Belfast Agreement.

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India retains the AFSPA

The AFSPA violates not only the fundamental rights but also over-rides the legal maxim “innocent until proven guilty” (Ei incumbit probatio qui dicit, non qui negate)After the Partition, leaders like Nehru and Patel could have dispensed with the AFSPA. But, they did not do so. Nor did India’s Supreme Court set it aside. Vallabhai Patel died in 1950 and Nehru survived him as the sole national leader. With Nehru’s blessing, the Indian parliament enacted the AFSPA 1958. Its jurisdiction, then, was confined to Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Arunachal Pradesh (then called North-Eastern Frontier Agency).

India’s North-East remained a volatile region in the post-Partition period. They continued their struggle for freedom. The region had strategic significance. During the Second World War, the Japanese tried to enter the Indian sub-continent through this narrow corridor. But back home when Hiroshima and Nagasaki were A-bombed they retreated from the Imphal and Kohima fronts.

Why was the law retained?

India applied the Armed forces Special Powers Act first to the northeastern states of Assam and Manipur, a cauldron of unrest. The act was amended in 1972 to extend it to all the seven states in the northeastern region of India. The states affected by the draconian law included Assam. Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the seven sisters. The forces brutally applied the AFSPA to the states.

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It ignored outcry by people against mounting incidents of arbitrary detention, torture, rape and looting. Indian government continued to extend the initial period (six months) for the imposition of the law ad infinitum sometimes with ex post facto notifications. The government’s plea was that without AFSPA all the northeastern states will secede from India.

The gunpoint diplomacy

A large part of the original region that constitutes the seven states of the Republic of India had strong political, economic and socio-cultural links with South East Asia. The great Hindu and Muslim empires that reigned over the Indian subcontinent never extended east of the Brahmaputra River. The British colonists were the first to repress freedom movements.

In the early nineteenth century, they moved in to check Burmese expansion into today’s Manipur and Assam. The British, with the help of the then Manipur king, Gambhir Singh, crushed the Burmese imperialist dream and the treaty of Yandabo was signed in 1828. Under this treaty, Assam became a part of British India and the British continued to influence the political affairs of the region.

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The resentment against the Englishman led to the bloody Anglo-Manipuri Conflict of 1891. The British were impressed by the fighting spirit of the local people. So, they preferred not to administer directly but only through the King.

A buffer zone

Before leaving India, the British pondered over many proposals for post-Partition of India. The local people were however never consulted. Finally the British divided the region such that some parts went to Pakistan but the lion’s share to India.

Over the years local democratic movements erupted as the people aspired to a new social and political order. One important example is a strong popular democratic movement against feudalism and colonialism in Manipur, led by Hijam Irabot Singh.

The treacherous annexation of Manipur

The post-Partition India reconstituted the kingdom of Manipur as a constitutional monarchy bypassing the Manipur Constitution Act 1947. Elections were held under the new constitution. A legislative assembly was formed. In 1949 V.P Menon, a seminar representative of the Government of India invited the king to a meeting on the pretext of discussing the deteriorating law and order situation in the state in Shillong. Upon his arrival, the king was forced to sign under duress.

The agreement was never ratified in the Manipur Legislative Assembly. Rather, the Assembly was dissolved and Manipur was kept under the charge of a Chief Commissioner. There were strong protests but using violent and brutal repression the Government of India suppressed the democratic movement in Manipur and has continued applying the same methods ever since.

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Colonisation of Nagaland

The inhabitants of the Naga Hills, sprawling across the Indo-Burmese border, formed Naga National Council (NNC) aspiring for a common homeland and self-governance. In 1929, the NNC petitioned the Simon Commission for independence. The Commission was examining the feasibility of the future of the self-governance of India.

The Naga leaders forcefully articulated the demand for self-governance once the British pulled out of India. Gandhi publicly announced that Nagas had every right to be independent. Under the Hydari Agreement signed between NNC and the British administration, Nagaland was granted protected status for ten years, after which the Nagas would decide whether they should stay in the Indian union or not. However, shortly after the British withdrew, the new Indian rulers colonized Nagaland and claimed it to be Indian Territory.

The Naga National Council proclaimed Nagaland’s independence in retaliation, and the Indian authorities arrested the Naga leaders. The AFSPA was used to violently suppress the democratic aspirations of the people of the North East. In 1975, some Naga leaders held talks with the Government of India which resulted in the Shillong Agreement. Democratic forces of Nagaland smelt a rat in this deceptive agreement and rallied the people for the national liberation of Nagas. One of the organizations which articulated the democratic demand of the Naga people is the National Socialist Council of Nagaland (NSCN).

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The Mizo National front

Mizo National front was a phenomenal product of a famine. In the Lushai Hills of Assam in the early sixties, a famine broke out. A relief team requested help from the Government of India. But there was little help. The relief team organized themselves into the Mizo National Front (MNF) to liberate themselves from the neo-colonial occupation of India. Against the democratic aspirations of the people, the Indian army moved in.

The rebellion was so strong, that the Indian air force had to bomb the villagers. The armed forces compelled people to leave their homes. This devastated the structure of Mizo society. In 1986, the Mizo Accord was signed between MNF and the Government of India. This accord was as deceptive as the Shillong Accord made with the Nagas earlier. To promote dominance by high caste Hindus, India clubbed poor non-feudal ethnic groups with Adivasi (tribals), cheating them in the name of scheduled tribes and in the process forcing them to be marginalized and stigmatized by the upper caste ruling elites of India.

Gradually it became the neocolonial hinterland for exploitation by the Indian state, where local industries were made worthless and now the people are entirely dependent on goods and businesses owned predominantly by those from the Indo-Gangetic plains. The new Indian unscrupulous businesses pull the economic strings of this region.

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The state of Tripura

In Tripura, the indigenous population has been reduced to a mere 25% of the total population of the state because of large-scale immigration from the Northeast and Bangladesh.

A series of repressive laws were passed by the Government of India in order to deal with this rising National liberation aspiration of the people of the Northeast. In 1953 the Assam Maintenance of Public Order (Autonomous District) Regulation Act was passed. It was applicable to the Naga Hills and Tuensang districts. It empowered the Governor to impose collective fines, prohibit public meetings, and detain anybody without a warrant.

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Indian atrocities from 1980 onwards include the massacres of civilians at Heirangoi thong (Manipur) in 1984, at RIMS Manipur in 1995, at Malom (Manipur) in 2000; the horror of army torture and violence on civilians during operation Bluebird (Manipur) in 1987 and operation Rhino (Assam) in 1991. Indiscriminate firing on civilians by armed forces personnel when their own vehicle burst in the town of Kohina (Nagaland) in March 1995, the shelling and destruction of the town of Makokchung (Nagaland) in 1994, the enforced disappearances of Loken and Lokendro (Manipur) in 1996, and the rape of Miss N Sanjita (who subsequently committed suicide) (Manipur) in 2003.

After the Partition, India emerged as the new-colonial power. The North East still yearns for freedom.

Mr. Amjed Jaaved has been contributing freelance for over fifty years. His articles are published in dailies at home (The News, Nation, etc) and abroad (Nepal. Bangladesh, Sri Lanka, et. al.). He is the author of eight books including Kashmir: The Myth of Accession. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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