Despite
Irom Sharmila's silent protest for over fourteen years, the Okram
Ibobi Singh governmnet has once again extended Armed Forces (Special
Powers) Act, 1958 (AFSPA) for another year in the state. Since its
introduction in 1958 to deal with the armed Naga nationalists, the
Act has continued to remain controversial because of the kind of
power given to the army personnel to even shoot to kill. Shooting to
kill an armed combatant that threatens the serenity and political
order of the day is different from shooting to kill an unarmed
civilian. The Act would not have been considered draconian had every
single case of misuse of the Act been investigated and erring
personnel been taken to task. Unfortunately, until the judgement of
the Court martial proceeding of the army personnel came out on
November 13, 2014, for the fake encounter killing of three Kashmiri
youths who were lured to work as porters for the military personnel
in Macchil, Jammu and Kashmir in 2010, virtually every army personnel
who have raped women or killed innocent villagers have been given
immunity by the AFSPA. And in a state like Manipur or Nagaland, where
there is no vibrant international exposure, army excesses will
continue to remain unnoticed and unattended.
Given
that AFSPA has been legislated by the state, even if the army
personnel kill unarmed civilians with impunity, the act is legally
right. However, just because an action is legally right and
justifiable that does not necessarily translate the action into a
morally justifiable action. There are so many cases in human history
where actions have been considered legally right, yet morally
unjustifiable and obnoxious. For example, Hitler's Germany banned the
Jews from using parks, restaurants and swimming pools. From the legal
point of view, any German citizen ejecting a person of Jewish origin
from such places would be doing something that is legally right.
However, discrimination of such sort based on race is not morally
justifiable. So though the act is legally right; morally it is wrong.
The AFSPA
has been notoriously devised to include the license to kill even a
suspect. 'Suspect' is a highly subjective term. The army personnel
can shoot to kill anyone he likes to kill and attribute it to
'suspect'. One does not need a verifiable evidence to justify
shooting; mere suspicion is sufficient to shoot. The burden to prove
innocence thus lies with the victim, not the one doing the shooting.
Given the way civilians have been killed, and the army personnel
provided 100% legal protection from any sort of prosecution, AFSPA
can legitimately be termed as an oppressive law – a law that should
not find a place in a modern liberal political community.
Another
notorious feature of the AFSPA is to protect army personnel who
commit rape on male or female. The Act nowhere provides legal
protection to those who commit rape. However, practically even those
who commit rape are given legal protection.
If the
AFSPA does not result in civilian casualty, there is no reason to
complain against it. The army personnel engaging in a battle with the
armed militant or sub-nationalist groups is a fair fight. The fight
becomes unfair when unarmed civilians are dragged into the battle and
killed and reported as part of the collateral damage. The massive
number of civilians tortured, raped and killed for decades is morally
not unacceptable. The state may have given legal protection in the
name of AFSPA and allowed massive human right violation – even
given protection when army personnel acted beyond the authorised
limit. However, this does not entail moral immunity. The erring army
personnel and the political leadership that authorised such human
right violation are morally blameworthy.
The kind
of non-violent protest initiated by Irom Sharmila to demand repealing
of AFSPA deserves support from the civil society. Not everyone could
undertake the kind of challenging task that she has begun. However,
understanding the moral nature of AFSPA and expressing solidarity
with her in whichever democratic way one could raise voice against
the Act is the minimum thing that is required from the political
community. Unless the members of civil society continues to raise
voice against the Act till it is repealed, a significant number of
casualty will continue to be fom the civil society.
(This article is to appear on the Hornbill Express on 8th December, 2014)
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