Monday, December 8, 2014

Revisiting AFSPA: A Moral Inquiry

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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