Buy ULPA, Get AFSPA Free

You can feel the cold hand of fear grip you every evening in Imphal. The roads are deserted, save for the armed patrols, their guns ready and pointing. It is December 2004, barely months after the gruesome rape and murder of Th. Manorama and the tumultuous protests that rocked the state in its aftermath. A team of students, academics and activists is in Manipur to investigate the working of the AFSPA at ground level. An endless litany of unspeakable brutality—a school boy's brains splattered on the bus stop while waiting for his school bus, three boys gunned down while returning home from choir practice, an old couple shot at when they stepped out in the night to relieve themselves, a young man picked up from sports ground never to return home alive—leaves us speechless with grief and anger.

While we are in Imphal, the impending visit of the Justice Jeevan Reddy Committee is notified through newspapers, and Manipuri opinion is sharply divided. A section, dismissing it as a political stunt has called for a boycott of the Committee when it comes visiting, while there are others who urge the importance of communicating their abhorrence for AFSPA to the Committee. There is however widespread disaffection with the terms of reference laid out for the ‘Review' Committee: to examine the act and advise the Government whether to “amend the provisions of the Act to bring these in accordance with the obligations of the Government towards protection of human rights or to replace it by a more humane Act”.

It is over a year now that the Justice Jeevan Reddy Committee submitted its findings and recommendations and the government has persistently stonewalled all demands for making the Report public. Irom Sharmila's sudden arrival in Delhi earlier this month renewed the clamour for the release of the Report. Though the government has continued to rebuff this demand, it was however ‘leaked' to the media. The report was greeted in parts by jubilation, frustration, but above all by confusion. Does it recommend a repeal of AFSPA? Or does it not? Or is it saying something else, while calling for a scrapping of the despised law?

The bewilderment derives from the semantic play that the Report indulges in. The intent of the Committee can be deciphered from the first few pages itself. On page 9, the report states: “we must say that while an overwhelming majority of the citizen groups and individuals pleaded for repeal of the Act, they were firmly of the view at the same time, that the Army should remain to fight the insurgents. When explained that the continuance of Army's operations would require a legal mechanism, quite a few of them agreed but suggested that such a mechanism should duly take into account the need to protect the rights and interests of citizens as also the of the State. ” The cat is let out of the bag rather early.

Unfortunately, the annexure with details of the presentations and submissions made before the Committee belie this claim: far from an ‘overwhelming' number of individuals expressing a ‘firm' opinion for the continued presence of army, it is a paltry 14 (out of a total of 196 depositions) who wish the army to continue its operations against the insurgents while advocating either the absolute revocation or at least the ‘humanization' of the law. For an overwhelming majority, the uniform is a symbol of hatred and colonization, as it was for the brave women whose bare breasts dared the Indian Army to rape them.

Where are we headed then? The answer is obvious: towards creating a legal mechanism for the army's operations, indeed to provide it legal immunity from what the army perceives as “spurious and motivated accusations of excesses” in the discharge of their duties, while recognizing that the Act has become a “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.

Calling AFSPA 1958 “too sketchy, too bald and quite inadequate in several particulars”, the Committee does commend its repeal but suggests reinforcing the existing Unlawful Activities Prevention Act's (ULPA) stipulations to enable it to deal with the conditions in the North East.

The provisions of AFSPA are too well-known to be recounted here, suffice to say that the heart and soul of the dreaded law is the presence of the army for long periods in what are declared as “disturbed areas”, the license to kill, arrest and pick any person; search, seize and destroy any property on the “merest hint of suspicion” and the blanket of legal immunity which allows the armed forces to operate with impunity. Consider now the draft of the provisions which the Committee has recommended be inserted to the Unlawful Activities (Prevention) Act, 1967 titled: Deployment of the Armed Forces of the Union: Section 4 says that “the force deployed …shall act in aid of civil power and shall, to the extent feasible and practicable, coordinate their operations with the operations of the security forces of the state government. However, the manner in which such forces shall conduct their operations shall be within the discretion and judgement of such forces .” AFSPA, let's not forget, is also invoked “in aid of civil power” and also engenders the suggestion of coordinating with the local administration—which is of course followed only in breach. By insisting that such coordination should be dependent upon its feasibility and practicability, to be judged by the armed forces, this draft provides an unequivocal blueprint of virtual army rule.

Section 5 (b): “In the course of undertaking operations … any officer not below the rank of a non-commissioned officer , may, if it is necessary, in his judgement, for an effective conduct of operations,

•  use force or fire upon, after giving due warning, an individual or a group of individuals unlawfully carrying or in possession of or is reasonably suspected of being in unlawful possession of any of the articles mentioned in Section 15 of this Act

•  enter and search, without warrant , any premises in order to arrest and detain any person who has committed a terrorist act or against whom a reasonable suspicion exists that he is likely to commit a terrorist act

•  enter, search and seize, without warrant , any premises, and destroy, if necessary, the firearms or any of the articles mentioned in Section 15 from any premises/ vehicle, vessel or other means of transport and for that purpose to stop the vehicle, vessel or other means of transport.”

Though the draft inserts a clause for ensuring the presence of witnesses while searching, seizing and destroying vehicle or property, it is otherwise a spitting image of AFSPA. It continues to allow even non-commissioned officers to conduct operations on the basis of ‘reasonable suspicion' alone and without the requirement for warrants.

The safeguards that it offers are stale and routinely flouted with abandon: the requirement for arrest memo, handing over the arrested person to the nearest police station (changed from “minimum delay” to “forthwith”), the possibility of endless deployment of the armed forces through repeated reviews and extensions. Indeed the Supreme Court's list of Dos and Don'ts issued to the Army has remained a cruel joke despite it being legally binding.

ULPA itself is one of the most draconian laws today: it defines terrorism in expansive terms, holding even sympathizers and supporters culpable (thus thousands of those who marched on the streets of Imphal demanding justice for Manorama may be booked under ULPA on grounds that they are backed by militant groups as Shivraj Patil once famously said); it renders intercepted private communication through emails and phones as admissible evidence in court. Moreover, like AFSPA, its clause (b) of Section 49 provides protection to “any serving or retired member of the armed forces or para military forces in respect of any action taken in good faith in the course of the operation directed towards combating terrorism.” Fortified by the recommendations of the review Committee, the all-new ULPA will be a recipe for unmitigated violation of civil rights. The presence of armed forces for long periods, the declaration of certain areas as troubled, security from legal suits, and now add to it the jingoism of ‘war on terror' that the ULPA entails. Already, it is not merely the central armed forces which indulge in excesses: emboldened by the impunity they enjoy, the police and state forces: the killing of three Kuki boys in Imphal in 2004, and the rape of a school teacher Naobi were both the handiwork of the police commandoes.

The biggest concession to the chorus of human rights violations that the Committee makes is by way of recommending the constitution of a Grievances Cell in each district of a state where the forces are deployed. However, the cell is to comprise of the sub-division Magistrate (chairperson), a representative of the forces operating in the district and an officer of the police. Can anyone seriously consider such a body—with no representation from the civil society, not even the state human rights commission—to be independent and impartial? Especially when it is mostly the personnel of these very institutions that stand accused of violations. With such a composition, can we be certain that the Cell will not strike underhand deals to allay public accusations of violations as the army did last May in Senapati district: exploiting local customs, the army offered blood money in exchange for three lives they took.

Justice Jeevan Reddy Committee offers an exceedingly clever report. By giving vent to the feelings of the people of the Northeast, their accusations of discrimination and human rights violations, and by mouthing the popular aspirations of the people for the repeal of AFSPA, it appears to stand in their defence and solidarity. However, this is no more than a pressure cooker safety valve. It lets off steam, makes a lot of noise but then ultimately, its back to square one. Must the people be forced to choose between two draconian laws? The battle against AFSPA is one for democracy. It must not be allowed to become a pretext for further shrinking of our democratic spaces. And this is precisely what the Review Committee report attempts to do. It concludes rather poetically: “At the end of a long night, there is a dawn.” One can only quote from Faiz: “ This trembling light, this night-bitten dawn/This is not the dawn, we have waited for so long…”

- Manisha Sethi