Come September 2008, and the Armed Forces Special Power Act (AFSPA) is now fifty years old in our country. It is a law in force in large parts of the northeast that gives armed forces special powers in a locality declared as ‘disturbed area’. However, while AFSPA is considered necessary by the state and army officials to protect the state against internal disturbances, to uphold the integrity of nation, to fight against terrorism and insurgency, and to protect sensitive border areas, it is being vehemently opposed and discarded by human rights groups, women’s organizations and political groups, as it is seen as facilitating grave human rights abuses, impunity, rape and torture, and silencing of democratic dissent. The Act has long been challenged internally through country-wide campaigns, coalitions, self-immolation, fast until death, and naked protests. It is also regularly referred to internationally, for example in the recently concluded UN Human Rights Councils’ Universal Periodic Country Review or in the previous Human Rights Committee, as an issue of serious concern.

Laws of human rights apply at all times. Some human rights, including the right to life (of which extrajudicial executions are a violation), freedom from subjugation, freedom from torture and other cruel, inhuman or degrading treatment or punishment, should not be derogated from even during extreme conflict situations, including wars. Other rights may be derogated from only to the extent necessitated by the situation and only for a limited period. If 50 years of a law could not control the conduct of parties to armed conflicts, if it could not protect civilians and citizens not participating in hostilities or civilian and military objects, if it could not bring peace and tranquility, then it is again an appropriate time to ask for a swift repeal of the AFSPA. The government repealed the Prevention of Terrorism Act (POTA) after recognizing ‘concerns with the manner in which POTA had been grossly misused’. Similar concerns exit with regard to the AFSPA.

It is a time to remind the Prime Minister, Mr. Manmohan Singh, of his promise that the ‘government would consider replacing the Act with a more “humane” law that would seek to address the concerns of national security as well as rights of citizens.’ It is a time to implement the key recommendation of the Government of India’s constituted five-member panel, led by former chairperson of the Law Commission, Justice B. P. Jeevan Reddy. It is also a time of a new beginning, where the citizens’ voices, who are taking no part in hostilities, shall in all circumstances be treated humanly in the so-called disturbed areas, without any adverse distinction founded on their religion, faith, sex, birth, or any other similar criteria.

Security is a shared responsibility. In order to give effect to the state’s responsibility for the maintenance of borders and order in our territory requires some insight on its part on the levels of ‘order’ within the country. We may argue that to achieve this in a conflict-ridden or terror-affected areas, it is required to measure the nature and volume of crimes committed by the non-state armed groups, and use this as an indicator of how secure society is. However, doing so ignores the fact that people’s sense of security is affected by more factors than insurgency alone. In order to develop an effective security policy in disturbed areas, some insight into both objective terror threats, as well as people’s sense of security is required. AFPSA has miserably failed in making either the State safe or the people secure. North eastern people are aspiring for a community safety ‘on the ground’.

In the case of AFPSA, the ‘local perspective’, as opposed to the national perspective, is all the more relevant, as it has become clear in the past fifty years of the implementation of the law that states of the disturbed areas are not successful in their ability to ensure peace and order. Even with such sweeping powers, states’ capacity to intervene in conflicts of all sorts, and influence non-state actors, has erased considerably and is often biased in favor of parochial and specific interests. If Indian security forces would not be able to function without the AFSPA, as is being stated by our Defence Minister, then what to do with the majority of the affected citizens who do not want to live with it. Ensuring area safety requires cooperation and confidence amongst all the relevant entities involved as well as the civil society. Our states are required to protect peoples’ rights but they have to also support their empowerment, so as to enhance their potential for self-protection. States must acknowledge the indivisibility of security, economic development and human freedom.

There are numerous reports of illegal detentions, extrajudicial killings, arbitrarily open firing and killing of civilians, disappearances, torture and many more in the disturbed areas, operating under the AFSPA, and its equivalents in Jammu and Kashmir. The cases have surfaced at regular intervals, but they are far from a complete picture of the human rights situation in areas under AFPSA. The lack of access to some areas and the denial of information and communication rights, combined with factors such as fear of reprisal by security forces, have made it very difficult to even know or verify the facts. In fact, the recent spurt of activism against the Act came after an alleged sexual assault and death in custody of a woman Thangjam Manorama in Imphal, Manipur, in July 2004. Dos and don’ts, directed by the Supreme Court in 1997, were a response to the atrocities by the security forces in these areas. At the same time, ironically, ‘no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act’ (Section 6, AFSPA). An example of the powers of the officers is to ‘fire upon or otherwise use force, even to the causing of death’ not only in cases of self-defense, but against any person contravening laws or orders ‘prohibiting the assembly of five or more persons’ (Section 4).

The everyday practice of insurgency and counter-insurgency under regimes like the AFPSA dehumanizes all, and leads to massive human rights violations. This is because it negates the basic democratic norms of behavior within and between groups, by making security forces all mighty and powerful. It is a historic fact that militarized states tend to be less responsive to community needs and demands (as a consequence of culture as well as methods), and they cannot establish just and humane relationships with the public. Militarization, its associated hierarchical structures, discipline and denial of rights, quite often become the breeding ground for unleashing more brutality, and ensuring a degree of perpetual public insecurity.

AFPSA originally came up in select regions of Northeast, in response to the armed political activity in that region, and was to remain in force for one year. However, it not only continued but was extended to more regions. Instead to being a one time measure in some emergency, it became a regular regime for all times. Indian democracy has continued to grow and gain strength in the past fifty years. However, the brutal and black AFPSA, and the regions under it, have been left in the dark, silenced and suffering. The maintenance of order against disorder, and peace against disturbance are not neutral concepts. They are hollow notions if not aligned with human rights principles of rule of law, leading to human beings being free and enjoying all their rights. In fact, in these times of India’s economic prosperity, people’s rising aspirations and political power, the unrest within the AFPSA regions will be more. If order and peace regimes have also the connotation of suppression and maintenance of the status quo, if it brings about fear, revenge and the preserving of an inequitable distribution of power and resources, then it is better to change it now with the repeal of its main tool, i.e. a 50 years old repressive law.