Refusal to acknowledge military rapes as a severely punishable barbaric crime by the Indian government has to be viewed seriously.

In their articles in the op-ed pages of The Hindu, both Walter Fernandes (AFSPA: Who rules India?, Feb 12) and Sanjoy Hazarika (An abomination called AFSPA, Feb 12) have argued persuasively that AFSPA should go and that statesmanship of a high order is required to make it happen. They seem to imply that it is the Army that doesn’t want to let go off AFSPA in spite of fervent pleas from the central government and Union Ministers that AFSPA should be replaced by a more “humanitarian law”. I am afraid that the authors are falling prey to the befuddlement created by the central government that it is the Army that is running amok with AFSPA.

The Justice Verma Comittee Report on amendments to criminal law required to secure the safety and security of women has no doubt come up with far-reaching observations on offences committed against women by the paramilitary and police forces. In the section on “Offences against women in border areas / conflict zones”, after considering the plight of a large number of women from areas in Kashmir, the North-East, Chhattisgarh, Odisha and Andhra Pradesh the Committee observes that “impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimized by the Armed Forces Special Powers Act, which is in force in large parts of our country”.

How can this impunity be neutralised? The Committee has suggested that sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law. It also argued for the appointment of special commissioners – who are either judicially or legislatively appointed – for women’s safety and security in all areas of conflict in the country. The Committee also recommended that those in command over police or armed forces shall be guilty of the offence of breach of command responsibility for crimes committed by their subordinates.

The ordinance that the UPA government promulgated, which gave effect to some of the amendments in the criminal law as recommended by the committee in cases of sexual violence, did not address this controversial aspect. For that reason, it had come in for severe criticism from activists who have for long been campaigning on behalf of victims of sexual violence by armed services personnel in conflict zones.

Rape has been used as a means of psychological warfare with the express purpose of humiliating the enemy – both men and women – by armed forces from time immemorial. The Indian security forces are no exception to this obnoxious method. Rape during armed conflicts is generally systematic and thorough. Security forces are trained to deploy rape as one of the most effective instruments to bring “terrorists” and “extremists” to their knees in disturbed areas.

It is a fact that women are disproportionately affected by violence – be it during armed conflicts, communal and sectarian violence or caste riots. AFSPA has engendered a gross pattern of violence in which women are routinely raped, sexually assaulted, beaten or killed in their homes or public places during routine search operations and armed actions by the military. Such violations of a sexual nature lead to heightened fear among the targeted population and coupled with the social stigma attached to such violations, become a potent weapon in the hands of the aggressors to subdue their victims.

The widespread and systematic practice of rape and sexual slavery are recognized under the Geneva Convention as crimes against humanity and war crimes. Rape is also recognized as an ingredient of the crime of genocide when committed with the intent to destroy, in whole or in part, a targeted group. But the UPA government claims, as pointed out by the authors of articles referred to earlier, that there is no consensus on this issue between the armed forces and the government!

Military rapes and custodial rapes are common in the “disturbed” areas and the guilty have never been punished. Setting up inquiry committees to calm down tempers and then ignoring their recommendations have been a ruse that the central government has consistently employed with a large amount of success. If we recall the earlier commissions set up to inquire into atrocities committed by the security forces under the umbrage of AFSPA, the pattern will become clear.

Justice Upendra, who headed a commission of inquiry on AFSPA immediately after the brutal rape and murder of Manorama by the Assam Rifles, squarely blamed the security forces as the culprits. Till today the report has not been made public and the guilty have not been punished. He says with dismay, as published in the press, that "I submitted all my findings… the security forces are responsible for the killings. There are only suspensions. Why shouldn’t they be arrested and tried?"

The Jeevan Reddy Committee was also set up in the wake of the Manorama episode by the central government with the mandate of "reviewing the provisions of AFSPA and advising the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act." In 2005 the Reddy Committee recommended the repeal of AFSPA with the candid observation that "the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness."

If the Verma Committee recommendations evoke a sense of déjà vu, it is no surprise. Here is a Committee which has come up with recommendations, no doubt well-meaning, within a record time. The Finance Minister also reportedly feels that we need a more “humanitarian” law to replace AFSPA. But the Army is against it. What can he do, poor man?

It appears that the Indian security forces have been true to Cicero’s traditions of a “just war” according to which usurping the enemy’s property is a legitimate reason for the war itself. Women were no doubt a part of this "property", no different from the lawful ownership of other properties by a man. The rape of a woman was considered as a crime committed against the property of a man. Since usurping the enemy’s property is legitimate in war, the rape of a woman – a property owned by a man – is also legitimate! Are women in the disturbed areas also legitimate war booty and battle-camp trophy? This is the question we are forced to ask after repeated stonewalling of all attempts to repeal AFSPA by the central government and Army authorities.

The perfunctory concern of the central government that the morale of the army will be affected if the guilty are punished and AFSPA is repealed seems to be politically motivated. Behind the facade is the gnawing worry of the government that without a draconian law the people of the north-east, Kashmir and other disturbed areas will start asserting themselves, questioning the very foundations on which law and order is administered in this “democratic” India.

The authors have forcefully argued for the repeal of AFSPA. But their expectation that the government will bell the cat is misplaced. The proverbial cat is not the Army but the government itself.

This article by S. Raghavan was published in the Imphal Free Press website, to View the article click here

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