www.sacw.net > Womens Rights Pages | January 20, 2005
[India] Joint Statement of Women's Groups Against Armed Forces (Special Powers) Act, 1958 (AFSPA)
17 January 2005
This is in response to the notice from the Committee to Review the Armed Forces (Special Powers) Act, 1958 (AFSPA) that is reviewing the working of the Act to make recommendations for its amendment or replacement (your notification of 9 Dec 2004, Times of India, New Delhi).
At the very outset we wish to state that the Terms of Reference of the Committee are deeply problematic. The mandate of amendment/replacement given to the Committee will inevitably result in legislation (new or amended) with the same legal and human rights implications as the AFSPA; and hence should have, in the first place included the option to entirely repeal and strike the Act from the law books. For it is well-known and documented that for almost half a century, generations of people in the north-east have lived and died under the AFSPA, an Act that has aided, abetted and given impunity to human rights violations on a wide scale.
At the same time, the Committee cannot be unaware of the widespread human rights abuses by the security forces in Jammu and Kashmir - issues that have been of greater concern since the application of a variant of the AFSPA in the region in 1990. For too long, victims of arbitrary killings, torture, detention, molestation and rapes have been denied access to justice. The Committee must therefore extend its mandate to review the working of the law in Jammu Kashmir as well.
Yet, despite these reservations, we are placing our concerns before the Committee because heavy militarisation in the north east has taken its toll on the very notion of "normal civilian life" and led to innumerable instances of violations committed against civilian populations. Encounter deaths, extra judicial killings, disappearances, arbitrary arrests, rape and torture have been a regular feature among the relentless series of atrocities meted out to the people by the army with impunity, especially in areas where they are protected by legislation like AFSPA.
The most widely known incidents of such excesses are the horror of army torture and violence against the villagers of Oinam (Manipur) in 1987; the gang rape of the women of Ujanmaidan (Tripura) by security forces in 1988; the terror wreaked by the army in Assam during Operation Rhino in 1991; the shelling of the town of Ukhrul (Manipur) with mortars in May 1994; and December 1994 on Mokokchung (Nagaland), indiscriminate firing on civilians by armed forces personnel when a tyre of their own jeep burst in the town of Kohima (Nagaland) in March 1995; torture of the villagers of Namtiram (Manipur) in 1995; the army's reign of terror in Jesami (Manipur) in January 1996; and the rampage of the village of Huishu (Manipur) in March 1996 and of course, most recently, the torture, rape and killing of Thangjam Manorama alias Henthoi (Manipur) 2004.
Needless to say, the impact on women over decades of militarisation has been particularly acute. Daily life has been routinely affected by the arbitrary house searches, body searches, questioning, threats and harassment of all sorts. What this has meant for entire families is a severe impact on their sense of safety and the freedom of mobility ó which in turn has had a grave impact on their livelihoods, their safety in fields, their access to forest/forest produce and their ability to receive medical care. At the same time, children for generations have had to grow up without the concept of safety, regular education, easy access to basic facilities or even the freedom to live or play without fear. The psychological impact of such militarisation has been immeasurable, as of course, has been the sense of alienation that it engenders.
In most operations, be they cordon and search, combing, arrests, searches, or interrogation, the armed forces have, under the aegis of the AFSPA done away with the basic, minimal safeguards accorded to women suspects by the Criminal Procedure Code as well as the SC directives. Arrest by male security personnel, interrogation in army camps and police stations, torture and sexual abuse including rape by security personnel in custody has become routine.
Testimonies presented by survivors, women's groups (both from within and outside the region) of such violence and harassment at several National Conferences of the Womenís Movement over the years have highlighted these and many other aspects of life under the rule of the gun. From Oinam to the Manorama case, we have seen how the impunity given to the armed forces under the AFSPA has sharply increased womenís vulnerability to molestation, harassment, sexual assault and rape.
The use of rape as a tactic to terrorise a community into submission is nowhere more apparent than the north east and Kashmir. In fact, as we all know, instances of rape by security forces have been documented even after the ceasefire in Nagaland.
The AFSPA which grants armed forces personnel the power to shoot to kill, stands in clear violation of the several Constitutional rights of the citizens of this country, and contravenes both Indian and International law standards. The Act is a violation of the Right to Life enshrined in Article 21 of the Constitution of India which guarantees the right to life to all people. It violates the International Covenant on Civil and Political Rights (ICCPR), signed by the government of India in 1978. In particular, the Act is in contravention of Article 6 of the ICCPR guaranteeing the right to life, which is a non-derogable right. This means no situation, or state of emergency, or internal disturbance, can justify the suspension of this right. It also violates Article 9 of the ICCPR which guarantees liberty and security of person.
Moreover, the AFSPA is an emergency legislation that Constitutionally requires to be reviewed every 6 months. That it should be continued to be imposed for years with only a nominal if any process at all, is unacceptable.
What the AFSPA has meant on the ground is that in case after case of every kind citizens have found it impossible to even get a fair hearing, much less access any kind of justice ó be they encounter deaths, extra judicial killings, disappearances, arbitrary arrests, rape or torture. The examples abound.
The case of the illegal arrest, rape and torture of Thangjam Manorama alias Henthoi, in which the protest by 12 women activists in Imphal, standing naked in front of the headquarters of the Assam Rifles Headquarters at the historic Kangla Fort Camp in the centre of the city, shouting slogans and carrying a banner which said, 'Indian ARMY - RAPE US' on 16 July, 2004 is not just a sign of their anger, it is also a sign of the desperation of the people, a sign of their inability to prevent such violence and harassment by the armed forces, and/or have access to any justice or redressal.
Following the Ujanmaidan case in Tripura (1988) where 14 tribal women were gangraped by jawans of the 27 Assam Rifles, local action and petitions to the government failed to open any doors of justice. Finally, it took the investigation of an all-woman team and a petition to the Supreme Court by AIDWA (All India Democratic Womenís Association) before the perpetrators were found guilty, and compensation granted to the victims.
As we all know, the Oinam incident (1987) during Operation Bluebird launched by the Assam Rifles were four months of vicious torture, rampage, slave labour of villagers and rampant sexual assault of women. A long national campaign against the disproportionate and unconstitutional powers of the AFSPA followed ó struggle that is on until this day.
Yet the official response has been an adamant affirmation of the AFSPA. General Officer Commanding-in-Chief (Eastern Command) Lt Gen Arvind Sharma, commenting on incidents of molestation and rape by Army personnel in some states of the North-East, said, "in a large army like ours, such incidents are likely to occurÖ But we make sure those who are on the wrong side are punished." (Sangai Express, 03 Jan 2005).
The claim that the armed forces 'own mechanisms' are sufficient to mete out justice to the guilty has been long proven to be dubious. In case after case, the process of the armed forces remains inaccessible to victims, and the lack of transparency of court martial and intra army judicial processes has meant virtually blanket impunity to the guilty.
Even in cases where the armed forces claim to have followed "due process", the proceedings and the verdicts have been a travesty and mockery of justice and the Rule of Law. Two most recent verdicts on the crime of rape by Army personnel illustrate the point. According to Defence spokesman Lt. Col. A.K.Batra, one soldier has been dismissed for "breach of discipline", while another soldier has been dismissed and sentenced to one yearís imprisonment for "indulging in misconduct"! Can the Review Committee stand by a law that offers army personnel immunity for rape, murder, torture and a host of other heinous crimes?
It is imperative that the Government of India :
· Immediately Repeal legislation such as the AFSPA
· Bring the armed forces within the democratic framework of accountability and justice without any further delay.
Only then can the people of the north-east, especially the women have any chance or hope to live with security and dignity.
· Aawaz-e-Niswan, Mumbai
· Akshara, Mumbai
· Anweshi Womenís Counselling Centre, Kerala
· Explorations, Mumbai
· Forum Against oppression of Women, Mumbai
· Jagori, New Delhi
· Lesbians and Bisexuals in Action, Mumbai
· Maati, Almora
· RAHI, New Delhi
· Saheli Women's Resource Centre, New Delhi
· Sama, New Delhi
· SANGRAM, Sangli, Maharashtra
· Stree Adhikar Sangathan, New Delhi
· Swayam, Kolkata
· Tamil Nadu Women's Collective, Chennai
· Vacha, Mumbai
· VAMP, Sangli
· Vimochana, Bangalore
· Women's Centre, Mumbai
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