Arm Forces Special Power Act and Violation of Human Rights a contrast toward Swarajya in Contemporary India

Abstract

India is the largest democratic country yet value of human rights has been immensely neglected and the constitution seems to be vague for many of the citizens because their rights are not respected by the Armed forces and they are directly and indirectly ruled by ruthless AFSPA.

The AFSPA has violated human rights extremely in Northeast state as well as Jammu & Kashmir. Even though they are accountable for the violations and crime committed yet they are save guarded by the constitution.

The present paper is based on the contribution of the Swarajya in Contemporary India. The concept of Swarajya has been deeply rooted in the mind of Indian citizens since from the struggle of Free India. Still then even today Swarajya is an unfulfilled dream for some state of our country. We must fight for equal rights for all the citizens because Swarajya is our birth right and it is an honor and privilege to have it.

Key Words:- AFSPA, Amnesty International, Human rights, Contemporary India, Sawrajya/Swaraj.

Introduction

The biggest Democratic country is still in thirst for Swaraj (Self- Governance) in every aspect of social life, the thirst for Swaraj is never quenched in the contemporary India. Since from the beginning India is a free country and it has its own governance but the Britishers came and colonized and govern us with their rules. Hence we Indian fought for freedom with the theme 'Swaraj is my birth right' which resulted to liberation from the Britishers. Swarajya is an individual's identity for the Indian citizens; anything against Swarajya was not compromised and negotiable in the past.

In the contemporary India the value and the concept of Swarajya has been immensely defamed by the Armed Forces (Special Powers) Acts (AFSPA). The North East and Jammu & Kashmir are still living in pathetic conditions due to implementation of AFSPA and it seems the mind set of Britishers has imparted in our country. With much effort from Amnesty International and Human rights activist the movement of safe guarding the Human rights and revoking AFSPA are addressed in various platforms but the effort seems to be in vain and the agenda remains vague. Thus Swaraj should be our collective appeal for all the citizens of our country and uplift the dignity of every citizen with respect and honor. This should be our ultimate goals and challenges; no citizens should be deprived of their rights and this should be our aims to achieve in the contemporary Indian and make a better India.

Armed Forces (Special Powers) Acts (AFSPA)

AFSPA are Acts of the Parliament of India that grant special powers to the Indian Armed Forces in what each act terms "disturbed areas". According to the Disturbed Areas (Special Courts) Act, 1976 once declared ‘disturbed', the area has to maintain status quo for a minimum of 3 months. One such act passed on September 11, 1958 was applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one, to the other Seven Sister States in India's northeast. An act passed in 1990 was applied to Jammu and Kashmir and has been in force since. The Acts have received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened. According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has right to shoot, arrest without a warrant, execute and legal impunity for their actions. Politicians like P. Chidambaram and Saifuddin Soz of Congress have advocated revocation of AFSPA.

Historical Background

The British had promulgated the Armed Forces Special Powers Ordinance in 1942 to suppress the Quit India Movement. On the lines of this ordinance, the Government of India promulgated four ordinances in 1947 to deal with internal security issues arising due to partition in Bengal, Assam, East Bengal and United Provinces. These ordinances, which later became acts, were repealed in 1957 but a year later, re-enacted in Assam and Manipur as Armed forces (Assam & Manipur) Special Powers Act 1958 due to growing Naga insurgency. Gradually, the scope of the act was extended to all seven states of North East. Later, the act was extended to Punjab and Chandigarh via Armed Forces (Punjab and Chandigarh) Special Powers Act in 1983. This act was withdrawn in 1997. In 1990, the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted.

The Act

The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:

• Failure of the administration and the local police to tackle local issues
• Return of (central) security forces leads to return of miscreants/erosion of the "peace dividend"
• The scale of unrest or instability in the state is too large for local forces to handle

In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a 'disturbed area'. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.

Human rights

Human rights are moral principles or norms, which describe certain standards of human behaviour, and are regularly protected as legal rights in municipal and international law. They are commonly understood as inalienable fundamental rights 'to which a person is inherently entitled simply because she or he is a human being,' and which are 'inherent in all human beings' regardless of their nation, location, language, religion, ethnic origin or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone. They require empathy and the rule of law and impose an obligation on persons to respect the human rights of others. They should not be taken away except as a result of due process based on specific circumstances; for example, human rights may include freedom from unlawful imprisonment, torture and execution.

Philosophy of human rights

The philosophy of human rights attempts to examine the underlying basis of the concept of human rights and critically looks at its content and justification. Several theoretical approaches have been advanced to explain how and why human rights have become a part of social expectations. One of the oldest Western philosophies of human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds. Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber).

Concept of Swaraj

Swa- 'self', raj 'rule') can mean generally self-governance or 'self-rule', and was used synonymously with 'home-rule' by Maharishi Dayanand Saraswati and later on by Mahatma Gandhi, but the word usually refers to Gandhi's concept for Indian independence from foreign domination. Swaraj lays stress on governance, not by a hierarchical government, but by self governance through individuals and community building. The focus is on political decentralisation. Since this is against the political and social systems followed by Britain, Gandhi's concept of Swaraj advocated India's discarding British political, economic, bureaucratic, legal, military, and educational institutions. S. Satyamurti, Chittaranjan Das and Motilal Nehru were among a contrasting group of Swarajists who laid the foundation for parliamentary democracy in India. Although Gandhi's aim of totally implementing the concepts of Swaraj in India was not achieved, the voluntary work organisations which he founded for this purpose did serve as precursors and role models for people's movements, voluntary organisations, and some of the non-governmental organisations that were subsequently launched in various parts of India.

AFSPA the root cause of Human Rights Violation

India is popularly considered as a nation which gives due importance to the rights and liberties of its citizens. It has absorbed the ideals of democracy in its truest sense. The Government is indeed 'by the people, to the people and for the people'. However, it is difficult to imagine that in a country like ours, exists a law which makes a mockery of the basic human rights.

The Introduction to the Act says that it has been enacted to assist State Governments which were incapable to maintain internal disturbance. However the act has been widely criticized by national and international human rights agencies. A brief recap of history will tell us that the North Eastern states were forcefully made a part of the Indian Republic after 1947 by signing various agreements with a view of their strategic significance. These states could never be fully integrated in our country's mainstream due to vast differences in social structure, culture, language, facial features and geographical remoteness. Furthermore, the government has been more or less indifferent towards the economic and social development of this region. Its main interest lied in exploiting its vast reservoir of natural resources. This bred secessionist tendencies in the people leaving in these regions leading to internal disturbances. AFSPA was introduced to curb this phenomenon and thus a vicious cycle has been initiated. The tyranny of armed forces compels people to demand freedom through violent means which in turns justifies the need for AFSPA.

On a visit to Arunachal Pradesh, Ex Home Minister P Chidambaram said the recommendations of the Justice Jeevan Reddy Committee and the Second Administrative Reform Commission on replacing AFSPA with a more humane law would soon be placed before the Cabinet. The Ex Prime Minister Mr. Manmohan Singh said that amendments will be made to make it more humane but it didn't. However, Ms. Irom Sharmila, a Manipuri poet, who has completed sixteen years of hunger strike demanding the repeal of the act said that nothing short of complete repeal of the act is acceptable. Her demand is very much valid as unspeakable acts of violence and torture have been committed under the garb of this law. For instance a woman was raped and brutally murdered. A bullet was found in her genitals. It was suspected that she is an insurgent. Similarly, a young teenage boy was arrested under the suspicion of him being an insurgent. On the ground of suspect many lives were lost without any evidence; it seems life is very cheap for the Arm forces.

Thus keeping only these regions under this inhuman act is nothing but blatant discrimination. Hence, the need of the hour is to repeal the Act. The Act which sounds like a nightmare is a reality for helpless people. Thus, if the sacred principles of human rights are to be guarded, AFSPA should be repealed. India should not allow the future to be dominated by violent paradigm such as the continuing use of AFSPA. It is time India gives space for Democracy and its cherished values to reemerge instead of suppressing the genuine democratic voice of 'We the people' which continues to remain excluded under the tyrannous rule. The Government of India must respect people's rights to life, liberty, assembly and remedy, and send a clear message that any rights violation by its forces will be not tolerated.

AFSPA a contrast to Swarajya

There has been a renewed debate over Armed Forces Special Powers Act, The strongest opposition has come from J&K, where the AFSPA is seen as a major stumbling block in the way of peace and reconciliation in the region. it is a fact that the Armed Forces Special Powers Act confers extraordinary powers which have been allegedly misused by the military, police and other paramilitary personnel to commit gross excesses without any fear of being punished, it is also a fact that despite numerous mass protests, legal challenges and review committees the Act has neither being reviewed nor repealed. Civil society seeks to reclaim its natural freedom and space while the armed forces are still in the process of consolidating the gains.

However adopting Swaraj means implementing a system whereby the state machinery is virtually nil and the real power directly resides in the hands of people. Gandhi said: 'Power resides in the people; they can use it at any time.' This philosophy rests inside an individual who has to learn to be master of his own self and spreads upwards to the level of his community which must be dependent only on itself. Gandhi further said again: 'In such a state (where swaraj is achieved) everyone is his own ruler. He rules himself in such a manner that he is never a hindrance to his neighbour.' He summarised the core principle like this: It is Swaraj when we learn to rule ourselves. In fullest sense Swaraj is much more than freedom from all restraints, rather it is self-rule, self-restraint, and could be equated with moksha or salvation hence AFSPA is totally contrasting towards the principle of Swarajya. In fact the armed forces and the civil society, though part of a common social system can co-exist in mutually exclusive domains.

Conclusion:

The aspect of human rights has shaped the AFSPA debate to a large extent. It needs to be emphasised that human rights compliance and operational effectiveness are not contrarian requirements. In fact, adherence to human rights norms and principles strengthens the counter insurgency capability of a force. The Indian army has been recognised as an apolitical, secular and professional force by the country. The armed forces need to restructure their approach to operations in states where people are increasingly and rightly developing zero tolerance to human rights violations. The UN Special Rapporteur on Human Rights in her report has called for a repeal of AFSPA. Both the Indian state and its armed forces do not need additional international involvement in what is an already complex situation. Winning hearts and minds forms the bedrock of counter-insurgency operations and mere lip service will not suffice. The armed forces need an urgent perception make over, and they need to start now and making a good law will be the primary answer for all.

During the period when Gandhi's freedom movement acquired its mass base, he again and again defined and explained the concept of Swaraj as the goal of freedom struggle, in terms of political, economic, social and moral rights of the downtrodden and exploited Indian masses. By Swaraj, he meant freedom and self-rule which should be practiced at three levels, In case of individual Swaraj, it is self-control or Swaraj of the self. In case of the country, it is the freedom of India from the British clutch, and In case of community level, it is Gram Swaraj or freedom of village. Gandhi's idea of Swaraj is a complete one and summarizes the separate human person and life in an all-inclusive outline. It visualises the liberal deliverance of all from all cruel structures and so can be equated with redemption. Therefore AFSPA sounds to be illegal and unlawful in the light of Swaraj.

The Aam Aadmi Party was founded in late 2012, by Arvind Kejriwal and some erstwhile activists of India Against Corruption movement, with the aim of empowering people by applying the concept of Swaraj enunciated by Gandhi, in the present day context by changing the system of governance. If all Indians have such kind of common thoughts and mentality definitely we can make a better society. In the name of safe guarding the nation and suppressing the Insurgents we must not make our country so cheap and anarchic in this present era. We can solve our country's problems with dialogue, discussion, negotiation and reason out the problems instead of treating inhumanly. The concept of Non-violence and its principle has to be respected so that we can have Swarajya under good governance. Let us impart Human rights value by educating the unknown people and the violators. All of us should join together to make Swarajya a birth right for every Indian citizens even for the future India. Let India live for the true picture, though never realisable in its completeness and we must have a proper picture of what we want before we can have something approaching it and make a better India ever. Jaihind Swaray!

References

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2. Amnesty International India. Briefing: The Armed Forces Special Powers Act: A Renewed Debate in India on Human Rights and National Security. Amnesty International India (September 2013) AI Index: ASA

3. Dhananjaya Kumar Rout. Concept of Swaraj and Mahatma Gandhi :A Critical Analysis. October - 2015. Odisha Review. Lecturer in History, KIIT School of Social Sciences (KSSS), KISS. Campus-10, Bhubaneswar- 751024

4. Vivek Chadha. (2013) Armed Forces Special Powers Act The Debate. IDSA Monograph Series No. 7 November 2012. ISBN 978-81-7095-129-1. Published by S. Kumar for Lancer's Books P O Box 4236, New Delhi-110048.

Webiography:

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