In Manipur, the Armed Forces (Special Powers) Act is facing its most severe challenge yet. The earlier one, in 1998, was mounted by the Naga Peoples Movement in the Supreme Court. Then, the learned Court decided in favor of the Act, along with the caveat that a list of Do's and Don'ts applicable to all military personnel in areas declared disturbed to be honored in both letter and spirit. From the case of the killing of Thangjam Manorama on 12 July 04 in Manipur, it would appear that this list was merely a wish-list. The lead-footed approach to the crisis indicates that the security establishment is unwilling to give up the perceived advantages that the draconian legislation offers in the fight against terrorism and insurgency. The opponents of the Act are equally vociferous that the permissive atmosphere of the Act tempts the armed forces to act outside the scope of the law.
In theory, the armed forces of the Union, an omnibus term including the military, para-military and the central police organizations, are the last repositories of governmental power. They have the necessary expertise and experience, and are empowered through relevant legislation to act against gross violations of the law perpetrated by terrorist and insurgent groups. The violence of these groups, both against the state and ordinary citizens, has grown exponentially, not least owing to foreign involvement. It is therefore understandable that the armed forces require the additional powers the Act confers to preserve the authority of the state.
However, given the wide powers already given to these forces down to the level of Non-Commissioned Officers, nearly every action of theirs has now become permissible, with few checks.
Why do some elements in the armed forces believe in such powers? Mr. K P S Gill, the man most associated with counter-insurgency operations in the country, makes no apologies in representing the hardline school of thought. Gill writes that judges, fearful of consequences for themselves, sometimes let off terrorists on bail who then got back into circulation against the state. This impacts adversely on the morale of the armed forces, especially those whose lives were put on the line to book these offenders. In a perverse way, this accounts for the disappearances of terrorists and the mysterious disposal of their bodies in crematoria; in Punjab these actions have blotted Mr. Gill's otherwise proud record of bringing the state to a situation where special powers for the armed forces are no longer required.
This demand to be both judge and executioner is surely subscribed to by a constituency within the armed forces itself. An unacknowledged manner of contending with the situation is to act outside the law. This is possible where hardline operations have the tacit support at the bureaucrats and politicians on Raisina Hill.
Human rights activists (e.g. Gautam Naulakha), legal experts (Rajeev Dhawan), civil society initiatives (Apunba Lup in Manipur), and democratic rights groups (PUCL) have rightly raised arguments against the pervasive scope of the AFSPA. Their leading argument is that several provisions already exist in the Code of Criminal Procedure, and these do not require duplication in the Act. Secondly, the protection of the Central government for actions commissioned and committed under the Act in 'good faith' lends itself to abuse. The argument here is not so much against the special powers themselves, but in the protection that the hierarchy with the Central government offers violators of the self-prescribed list of Do's and Don'ts.
The key challenge facing the government machinery at all levels is to combat the idea that in while carrying out their duties the armed forces can act outside the scope of the law in 'good faith'. How can this be done?
First, we must debunk the notion that force is necessary to contain the present levels of terrorist violence. If we allow the hardline argument - that special powers are needed - to dominate the discourse, from there we inevitably allow the AFSPA to become the normal state of affairs. If, on the other hand, the chosen instrument of the state itself comes under disrepute, then solutions can seem nearer. This is certainly possible. The hardline lobby is not the majority iin the armed forces; this is evident from the fact that there is no equivalent to Chechnya in India. Therefore prevailing on the misdirected few who bring the forces to disrepute is not an inordinate problem.
More introspection is also needed. To believe that the proverbial foreign hand is behind all violence directed at the state is a form of denial. We must recognize that greater internal supervision of the forces, and a more liberal orientation towards internal problems, are ultimately necessary if we want those now confronting the state to one day identify more strongly with India.
Kashmiris demonstrating in the streets in the early 1990s lost a chance to tame the sword-bearers of the state by permitting radicals to pervert their movement through violence. Manipuris, however, have held steadfast to satyagraha tactics in their agitation so far. This has made it increasingly difficult for the state to deliberately misperceive and misrepresent the situation, and proceed to apply the template that it is most comfortable with - the use of force to knock the issue off the front pages. As a result, there is still room for recovery.
The armed forces must eliminate the counter-productive hardline perspective through persuasion where possible and through diktat if necessary. With special powers comes special responsibility too. Wider powers for the few situations that are truly grim would be more acceptable if they were used with temperance, and within a framework of broad engagement that acknowledged local opinion. Without this, all the special powers in the world will not produce the desired results.