The Armed Forces Special Powers Act, which gives blanket immunity to India’s armed forces to operate in ``disturbed areas’’ is a blot on the country’s much vaunted democratic traditions. The British Raj brought in the Act in 1943 to deal with the Quit India Movement, but had long scrapped it at home. This Black Act has led to widespread human rights violations by the armed forces against fellow countrymen in states notified as “disturbed".
While AFSPA is in focus for the recent gunning down of hapless civilians in Nagaland’s Mon district, India’s general record on freedom and rights of minorities guaranteed by the Constitution is slipping sharply and there is an international concern especially in Western democracies. The attacks on Christians and the call to violence against minorities by Hindu religious leaders is being noted worldwide.
The people’s anger in Nagaland over the killing of innocents has reverberated in Delhi. The fact that the citizens of all northeastern states are demanding the repeal, at the time when the BJP has made inroads to the region has led to a rethink. The Central government has set up a panel to look into the withdrawal of AFSPA from Nagaland. The report is to be submitted within 45 days. But the review is confined to lifting the Black Act only in Nagaland not from all places.
"The UN Human Rights Office is concerned and has been vocal with respect to the 1990 Armed Forces (Jammu and Kashmir) Special Forces Act which is almost identical to the AFSPA 1958, in force in several states of north-east India,’’ Rupert Colville, spokesman for the UN High Commissioner for Human Rights told Outlook from Geneva .” Our 2018 report on Jammu and Kashmir said in paragraph 43: “This act grants broad powers to the security forces operating in Jammu and Kashmir and effectively bestows immunity from prosecution in civilian courts for their conduct by requiring the central government to sanction all prospective prosecutions against such personnel prior to being launched,” Colville added.
He went on to say that the UN's independent Special Rapporteur on Violence Against Women in her 2014 report on her visit to India (A/HRC/26/38/ urged the Government to “Repeal, as a matter of urgency, the Armed Forces (Special Powers) Act and the Armed Forces (Jammu and Kashmir) Special Powers Act and ensure that criminal prosecution of members of the Armed Forces is free from legal barriers."
With terror attacks continuing in Kashmir and the general trend across the world of governments empowering security forces to tackle terrorism it is unlikely that the Modi government will oblige. In fact, not just in India but across the world democracy is backsliding with rise of the right-Wing. Whether it is in the US, in Europe or in India the far-right groups are gradually being accepted as mainstream. Trump encouraged White supremacists and America is polarised as never before. In India too the rise of the BJP is accompanied by ultra-nationalist ideology and attack on the "other", criticism of government policy is now deemed unpatriotic or pro-Pakistan. Luckily in America, institutions are strong and fight back. In India, institutions were on the decline even before the BJP came on the scene.
Since independence India’s democracy was much appreciated by the free world mainly because China the other large Asian country was under Communist rule. India’s democracy and pluralism was celebrated across the democratic world. Ironically the "quad’’ the US, Japan, Australia and India formation for the Indo-Pacific was conceived by Japan’s former prime minister Shinzo Abe as an arc of democracy stretching from the Pacific to the Indian Ocean and encompassing four free and open societies. While Abe’s strategic aim was to contain China, the read out was more on the free world as opposed to tightly controlled Communist regime of China.
Considering that India has the right credentials and is being wooed to counter China’s growing political, military and economic clout in Asia, this regression on individual freedom is difficult to comprehend. Yes, it plays to the narrative of assertive Hindu nationalism for the domestic audience, but it misses the big international picture, where India as a global player also has the responsibility to live up to its democratic ideals.
"Instead of becoming a significant voice that could take lead to protect those most marginalized in the world, India has now joined the ranks of those countries that are of concern because of its failure to protect economic, social or political rights. An important step in the right direction would be to acknowledge the abuses that have occurred AFSPA, which have been documented by numerous governments appointed inquiries, and to order a moratorium until this draconian law can be repealed and replaced by one that protects rights, “says Meenakshi Ganguly, South Asia Director of Human Rights Watch.
She adds: ``India’s friends had long hoped to see India step up in global efforts to protect human rights in many troubled parts of the world, and to promote the message of successful governance that accommodates the aspirations of a vast and diverse population. Instead, there is a disappointing regression of rights protections in India, with increasing communal attacks and failure to act against those targeting minorities.”
Jawaharlal Nehru, India’s much-maligned first prime minister was in principle against the Act. But as the political leadership tried to grapple with the Naga insurgency, where Nagaland’s charismatic leader A.Z. Phizo had demanded even before independence in 1947, that as the Naga tribes had little in common with mainland India the British should recognise an independent Naga nation. Later he called for a Crown colony rather than be a part of India. The Naga Hills, at that time a part of Assam, was first declared a disturbed area and later the Armed Forces Special Powers Act was brought in to protect the army from civilian courts. This was in 1958, when a newly independent country had witnessed the tragedy of partition and was trying to assert control in its far-flung outposts. When the Act was debated and passed in Parliament, many members had doubts whether democratic India should allow the army to operate without civilian oversight even in disturbed areas. MPs were assured that this was a temporary measure to deal with the situation in Nagaland and would be lifted soon.
The temporary measure however has endured. India has changed and is today a self-confident power with ambitions to sit on the global high table. Yet whether it is the north eastern states or Kashmir, this Black Act continues to operate. During the Khalistan movement in Punjab, it was in force but luckily when that was over the AFPSA was lifted. In Tripura too the CPM government decided to do away with it once the insurgency was over.
Despite appeals by rights groups both in India and abroad the appeal to successive Indian governments to scrap have fallen on deaf ears. The Indian army has naturally firmly resisting any such move as governments have had to deploy the security forces to quell internal disturbances had not dared to do go against the army ‘s wishes.
In June 2021, United Nations Secretary-General Antonio Guterres expressed concern over “grave violations” in the Kashmir valley and had appealed to the Indian government to end the use of shotgun pellets against children.
“I call upon the government to take preventive measures to protect children, including by ending the use of pellets against children, ensuring that children are not associated in any way to security forces, and endorsing the Safe Schools Declaration and the Vancouver Principles,” he said in the UN Report on Children.
India’s response to the UNHRC is to talk of Pakistan’s role in pushing terror outfits into Kashmir. It is a fact that Pakistan has constantly encouraged and exported terror to India. While in the past the international community had not given much credence to India’s complains, things have changed. This is mainly because Pakistan’s credibility in the world is low, more so after America and NATO countries got a first- hand experience of the Pakistan military’s double dealings in Afghanistan. The world has by and large accepted New Delhi’s version.
But that could be fast-changing as reports of abuse of minorities continue to be reported from different parts of the country. The progressive wing of the Democratic Party in the US is high on democracy and human rights, and will push President Biden on these issues. It is time for the Modi government to pause and rethink some of its policies. ENDS