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Views & Reviews

The 28th Act of 1958

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By EMN Updated: Jan 10, 2022 10:34 pm
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Article 355 of the Constitution of India enforces a duty upon the Union to protect States against external aggression and internal disturbance. Under the said provision, the Armed Forces (Assam & Manipur) Special Powers Ordinance, 1958 was promulgated by the then President, Dr. Rajendra Prasad, on 22nd May, 1958. It is pertinent to mention that the Armed Forces (Special Powers) Act, 1958 (‘the Act’ in brevity) erstwhile the Armed Forces Special Powers Ordinance was first promulgated by the British Colonial Government to suppress the Quit Indian Movement on 15th August, 1942. It is a Colonial product enforced upon Indians to flush the free India movement. The introduction of the said draconian law was to serve the purpose of the Colonial rule to control, command and reign over India. After about 200 years of suppression under the British Raj and consequently, independence in 1947, India is now the largest Democratic Nation with the longest written Constitution in the World.

The adoption of such suppressive and arbitrary authority from the oppressor and implementing the same for almost 64 years under the blanket of ‘internal disturbance’ has attained finality and it’s time for consideration with the change of time. The recent Oting massacre has endorsed the need to further scrupulously dissect the aims and objectives of the Act in accordance with the prevailing state. The declaration of any area as ‘disturbed’ by the Governor, the Administrator and the Central Government under Section 3 enforces the application of the Act. The very implementation of the Act depends on the declaration of any area as disturbed and the definition of ‘disturbed area’ is provided under Section 2(a) of the Act. As dreadful and vicious the Act is, the definition of disturbed area in Section 2(a), which is the lone source of implementation, does not provide with any sensical illustration. As a matter of fact, the definition of disturbed area is not at all represented in its entirety. The objective of the Act simply connotes protection against internal disturbances but the beneficiaries of the same have not been categorised/ classified. Furthermore, Special powers under Section 4(a) of the Act which empowers the armed forces of actions to the extreme of causing death can only be invoked provided the sine qua non viz., due warning, acting in contravention of any law or order in force, carrying weapons, necessary for the maintenance of public order, be made out. Moreover, Section 6 shields any person exercising the powers conferred by the Act from the liabilities with the requirement of prior sanction of the Central Government for any prosecution. Hence, under such circumstances, AFSPA is a situation akin to Martial Law where every citizens of the enforced Area/State are not safe in toto.  

The recent execution of the 14 innocent civilians at Oting Village in the District of Mon, Nagaland under the pretext of militant is unwarranted, irrational and inhumane. In the commission of the Act, history and the World have witnessed that uncountable deaths with infinite missing, properties destroyed, citizen tortured, women raped, etc had befallen upon the Nagas.

Despite being from the head-hunter pedigree, Nagas have always chosen peace over conflict. Yet, the unceasing bullets from the armed forces still continue without any remorse and/or hesitation. The Act which was supposedly enforced to protect and better the condition of the State has always been detrimental to the cause. As such, the Act which is still being placed in the heart of democracy has become instrument of death and citizens are being acted upon without a flinch as the enemy of the State.

Nagas are being misrepresented but the National Crime Records Bureau’s Report 2019 which declared Nagaland as the lowest in crime record in the Country and the safest State for women in the Country shows otherwise. This Act permits and empowers the armed forces for the purpose of peace and security in the interest of the State but should not be at the cost of the lives of innocent civilians. The cardinal basic principle of the criminal jurisprudence is that 1000 culprits can escape but not one innocent should be punished. Therefore, the Act cannot claim the leeway that it provides. The Rule of Law is supreme and in any given State, citizens cannot be used as guinea-pig. Thus, the cry of the mass for justice and abrogation of the Act should be attended forthwith.    

The Preamble of India enshrined as “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSITUTEN ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSITUTION”  propagates about inclusive India whilst the enforcement of this barbaric Act in the State of Nagaland in particular and Northeastern States in general differs. The butchery at Oting, inter-alia, by its own security forces, catastrophically reflects the urgency to address the ravages of the Armed Forces (Special Powers) Act, 1958. As such, the ‘Golden Triangle’ of the Constitution of India which provides full protection of the rights of citizens is on trial. Hence, this Act is in total contravention of the ‘Basic Structure’ of the Constitution of India.

C. TALIMOA
President, Nagaland Law Students’ Federation (NLSF)
adv.k.sumi@gmail.com

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By EMN Updated: Jan 10, 2022 10:34:04 pm