AFSPA; a delusion or a dilemma ?

NOTE: – By expressing my views about the following topic, neither am I commenting against the Government nor the provisions enacted by the Legislature. The content posted is purely for the public views and any rash comments would not be appreciated.

 Even before I begin with this rather heated topic, I’d like to clearly state that over here by presenting the following post to the audience, I’m under no circumstances being answerable to any Government entity or persona as a whole. I’m by means of the post, which is to follow, trying to generate awareness about such practices which are getting highly prevalent in modern day India. My intention here is not at all to blame the Legislature or the respected Indian Army, which puts across its heart and soul to serve us and make India a better country. Over here I’m to tell about that strata of the medical fraternity who take patients as their business, my intention here is only to express my views duly and to exercise my power to raise my voice against the issues that bother me. 

 

    AFSPA: – 

The Iron Lady of the largest democracy of the world, Irom Chanu Sharmila finally ends her more than 500 weeks which is 11 years of hunger strike, against a protest for repealing AFSPA. No wonder it has been declared to be the world’s longest hunger strike till date. She had pledged not to look in the mirror, not to comb her hair, nor  eat, drink or meet her mother unless the Act stands repealed. She was jailed a number of time thereto, and the Government made her compulsorily intake food and water by way of nasogastric incubation to eep her alive while in arrest.

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Her giving up on her bequest does not tend to surprise me, what does surprise me is the never ending politics that the region of seven sisters that is the North-Eastern region of India,  the contiguous States of Arunachal PradeshAssamMeghalayaManipurMizoramNagaland and Tripura is facing since time immemorial. Let’s face it, how many of us even knew about the names of these seven States if asked impromptu ? I bet more than 80% cannot and would not be able to name more than four of the Seven Sister States.

 

Also it is a state of terrible disgrace that more than 80% of us, the concerned citizens do not know about AFSPA. The only way concern is shown is through the rising grocery prices, teamed up with concerns about team India winning the championship trophy and the like. I have been on a quest to change the ongoing scenario and to support the same, views about the above mentioned topic will be the expressed herewith.

Post-independence, India has witnessed many secessionist movements and has long suffered from extremist attacks. The very notion of secessionism disturbs the territorial integrity and unity of a country. In order to curb the secessionist activities of the militants, the Indian government under Nehru in 1958 implemented the Armed Forces Special Powers Act (AFSPA).

 AFSPA is an acronym for ARMED FORCES SPECIAL POWERS ACT, 1958. The said Act had been bought into force  and enacted in the year 1958. It was first implemented in the North-Eastern Region and then to Punjab and finally to Jammu and Kashmir. In the case of Armed Forces Special Powers Act, 1958 ( Manipur and Assam ), the Government used Article 355 of the Constitution to confer powers on the Governors of the States. The Act is applicable only after an area has been declared, “Disturbed”. The power to declare a territory ,“Disturbed” initially lay with the States, but this power was passed to the Centre in 1972. Section 3 of AFSPA (in J&K), says that an area can be declared disturbed if it is the, “Opinion of the Governor of the state or the central government which makes the use of armed forces in aid of the civil power necessary”. Under the provisions of the Act, the “Armed Forces” may shoot to kill or destroy a building on mere suspicion. A non-commissioned officer or any one of equivalent rank and above may use force based on opinion and suspicion, to arrest without warrant, or to kill. He can fire at anyone carrying anything that may be used as a weapon, with only, “Such due warning as he may consider necessary”. Once AFSPA is implemented, “No prosecution… shall be instituted except with the previous sanction of the central government, in respect of anything done or purported to be done” under this Act.
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The Supreme Court found the Act constitutionally valid. However the draconian powers the Act gives to the armed forces, particularly Section 4 which allows a soldier to shoot at sight under certain circumstances, can result in abomination, if misused. The basis for giving life to this otherwise dormant enactment is the notification by the Home Ministry declaring an area “Disturbed.” Failing to maintain law and order with vast resources such as the para-military and the police it has under its command, the MoH declares an area disturbed and hands over the situation to the Ministry of Defence. The armed forces, trained to protect the borders, are deployed to restore normalcy. There can be no two opinions that rape and murder committed by soldiers must be dealt with firmly.  The crux of the problem is the prolonged deployment of the army in internal security duties in a particular area. The Government must first withdraw the notification declaring an area disturbed and let the soldiers return to the barracks. Overwhelming presence of insurgents causes grave insecurity to the common people. It creates a situation where people have to live under constant fear and anxiety. Frequent declaration of bandh, forcible extortion and shelter by militants are sources of insecurity to the people. On the other hand, widespread protest by people against the Act clearly shows their discontent towards it. Adversaries of the Act argue that the increased militarization of the area creates a detrimental atmosphere that ends up creating people’s protests against the State. On the other hand, the protagonists of the Act believe that extraordinary conditions demand extraordinary measures. According to them, there is no denying the fact that AFSPA gives special powers to the security forces but it, also, has to be understood that there’s no other simple way to fight the insurgents. When the enemy penetrates within the civilian population it is he who has curbed the liberty of the people and not the security forces who are, in fact, trying to ensure that the right to life and dignity of the civilian population is not compromised by. AFSPA is the need of the hour.

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In the AFSPA controlled areas, human rights are being violated both by state and non- state actors. Counter- terrorism operations undertaken in good-faith, at times, lead to collateral damage. Proposals have been made to been made to amend section 4 which gives Army powers to search premises and make arrests without warrants, use force, even to extent of causing death, destroy arms dumps, hideouts and to stop, search and seize any vehicles.

The controversial AFSPA has been extended by six months in entire Assam and the 20km-wide belt in Meghalaya bordering the state with the Centre declaring that the “disturbed area” status, which has been in force since 1990, will continue. In a gazette notification, the Home Ministry said the law and order situation in Assam has continued to be a matter of concern due to the violent incidents by underground outfits and during January-September 2016, different militant groups were involved in 66 incidents of violence in Assam which resulted in killing of 29 people.

Emerging Status: –

 

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The AFSPA debate has been a long sparring bout conducted in the latter half of 2011. The main boxing bout is still to be fought. Shadow boxing matches were carried out between political parties at the state level (NC, PDP and Congress); at the National level (Cong, NC and BJP); the J&K Government and State Administration against the Army within the state; the Chief Minister of J&K discussed the issue with the Army Chief, the National Security Advisor, the Home Minister, the Raksha Mantri and the Prime Minister. The media, both print and electronic, had a field day bringing defence analysts, political luminaries, experts on Kashmir, separatist leaders face to face for debates with no possible conclusion. The Lokpal Bill and related issues overtook the prolonged AFSPA debate and buried it under the welcome snowfall in Kashmir.

Nevertheless, the least we could conclude is to each his/her own, and these opinions thus expressed do not necessarily mean to harm the image, reputation or otherwise of the nation or the Defence, without whose help, we would never be able to breathe peacefully.

I’d like to thank Indian Defence Review.

 

Disclaimer: –

This blog is owned and maintained by Hardi Goradia.

The content on this site is offered only as a public service to the web community and does not constitute solicitation or provision of legal advice.  This site should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter. The comments and opinions expressed on this site are of the individual author and may not reflect the opinions of the firm or any individual attorney.

Nothing on this site is intended to create an attorney-client relationship and nothing posted constitutes legal advice. Neither the transmission of the information contained on this site nor your use of the information or communication with Hardi, creates an attorney-client relationship between you and Hardi. No information communicated to Hardi, through this site will be protected by either the attorney-client privilege or the work product doctrine.

This website does not provide legal advice of any kind, and we cannot guarantee that the information is accurate, complete or up-to-date. Given the nature of and speed with which online communications are developed, the opinions and thoughts posted to this site are of a casual nature and may change after further reflection. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.

Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing on this site should be used as a substitute for the advice of competent legal counsel. The author, Hardi Goradia assumes no responsibility to any person who relies on information contained on this site and disclaim all liability in respect to such information. You should not act upon information in this website without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction.

The author of the content of this site are only authorised to practice law in the jurisdictions in which they are properly licensed. For more information, please contact the author. The author listed on this website is not certified by any state’s or jurisdiction’s board of legal specialisation; nor certified as an “expert” or “specialist” pursuant to any authority governing the practice of law.

 

 

 

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Need For Change.

Apologies first, since I haven’t posted in a rather long time. secondly again the topic which I’m today going to write on might incite mixed views from each one of you’ll but at the same time I hope it’s an understood fact that these are my own personal views and do not aim to hurt the feelings of any person, whatsoever, nor does it aim to criticize the way things in India are functioning.

THE BURNING NEED FOR UNIFORM CIVIL CODE; 

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Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws togovern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe.Such codes are in place in most modern nations.

Article 44 of our Constitution recommends, “The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India.” This was drafted as a recommendation  as to allow the State some time to integrate and unite the country after Independence before moving on to civil reforms. There was a reasonable apprehension that an iron fist approach to enforcing a common civil code may lead to widespread religious unrest and possible disintegration of a fragile union.
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The common areas covered by a civil code include laws related to acquisition and administration of property, marriage, divorce and adoption.This term is used in India where the Constitution of India attempts to set a uniform civil code for its citizens as a Directive Principle, or a goal to be achieved.In India, most family laws are determined by the religion of the parties concerned. Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. Muslim law is based on the Sharia.The personal laws of other religious communities were codified by an Act of the Indian parliament. Other sets of laws such as criminal laws and civil laws on contract, evidence,transfer of property, taxation were also codified in the forms legislation.
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Law cannot afford to be selective in application. It has to be general and uniform unless the area of operation of a particular law or the people it deals with are distinguishable from others and such distinction has reasonable connection with the purpose of the law in question. If any law or body of laws violates this basic condition, it would, sooner or later, face resistance on moral or social grounds, if not strictly on legal ones. 
India is a secular state, world’s largest democracy and second most populous country (1,205,073,612 in 2012) emerged as a major power in the 1990s. It is militarily strong, has major cultural influence and a fast-growing and powerful economy. With its many languages, cultures and religions, India is highly diverse. This is also reflected in its federal political system, whereby power is shared between the central government and 28 states. Religions not only have been serving as the foundation of the culture of India, but have had enormous effect on Indian politics and society. In India, religion is a way of life. It is an integral part of the entire Indian tradition. A vast majority of Indians, (over 93%) associate themselves with a religion. According to the 2001 census 80.5% of the population of India practice Hinduism, Islam (13.4%), Christianity (2.3%), Sikhism (1.9%), Buddhism (0.8%) and Jainism (0.4%) are the other major religions followed by the people of India. There are also numerous minor tribal traditions, though these have been affected by major religions such as Hinduism, Buddhism and Christianity. It is in this diverse context we have to analyze the necessity of Uniform civil code. Personal Laws in India.
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     India is a country of millions of  customs and communities. India is home to many famous religions and cultures in the world. Throughout India’s history, religion has been an important part of the country’s culture. Religious diversity and religious tolerance are both established in the country by the law and custom India is a country that has secularism enshrined in its Constitution yet there is a contradiction in this whole concept of secularism, particularly when it is interpreted in the personal laws of its citizens. It becomes a confusing melting pot when Hindus, Muslims, Christians and Parsis have different personal laws pertaining to marriage, adoption, guardianship, divorce, succession and so on. Each community in India has their own personal laws in case of marriage and divorce. These religious communities co-exist as part of one country yet the family laws in India differs from one religion to another. The reason is that the customs, social usage and religious interpretation of these communities as practiced in their personal lives depend hugely on the religion they were born in and that which they practice in the Indian society. The codified personal laws relating to marriage, divorce, property and inheritance are: •
1- The Indian Christian Marriage Act of 1872 (applicable to whole of India except areas of erstwhile Travancore- Cochin, Manipur and Jammu & Kashmir),
2-  Anand Marriage Act, 1909 (For Sikh marriages), • Cochin Christian Civil Marriage Act of 1920 (applicable for Travancore-Cochin areas),
 3-  Muslim Personal Law (Shariat) Application Act, 1937 (making Shariat laws applicable to Indian Muslims),
4- The Parsi Marriage and Divorce Act, 1937 •
5- Hindu Marriage Act, 1955 (applicable to not merely Hindus, Buddhists and Jains but also to any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law).
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      Defining Uniform Civil Code Uniform Civil Code generally refers to that part of law which deals with family affairs of an individual and denotes uniform law for all citizens, irrespective of his/her religion, caste or tribe. The need for a uniform civil code is inscribed in Article 44 (Article 35 in the draft constitution). This article is included in Part IV of the Constitution dealing with the directive principles of state policy. The legal nature of the Directive Principles is such that it cannot be enforced by any court and therefore these are non judicial rights. The Constitution further calls upon the State to apply these principles in making laws as these principles are fundamental in the governance of the country.
    Article 44, which deals with the Uniform Civil Code states: “The State shall endeavor to secure for the citizens, a uniform civil code throughout the territory of India”.
         The objective of this article is to effect an integration of India by bringing all communities into a common platform which is at present governed by personal laws which do not form the essence of any religion. Uniform Civil Code Controversy In India personal laws are the main cause of communal conflict among people. One of the basic problems with the absence of a Uniform Civil Code applicable throughout India is that it goes against the concept of equality which is one of the basic tenets of our Constitution. By having different personal laws for different religions we are, in a sense undermining the credibility of the secular ethos of India. A Uniform Civil Code will also simplify the cumbersome legal processes involved with the matters governed by personal laws. It will also go a long way in promoting the causes of secularism, equality and national integration. It will also make the separation of the State from the religion more complete and meaningful. The personal laws of all including Hindus can be changed timely. In referring personal laws of all religion we can see the male dominance. The issue of personal laws and the Uniform Civil Code was now firmly embedded in conflict communal politics. The 1980s were a period of growing crisis in India.
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        The secular consensus had broken down and communal conflicts were escalating, with both majority and minority fundamentalism on the rise (Upadhyay 1992). Pratibha Jain suggests amending the Constitution as an alternative to the uniform civil code. However, it is imperative to look into the other side also. Still, time is not mature for the implementation of the Uniform Civil Code. Polarization in the society along religious lines is still very much alive in our country. The destruction of mosques and temples, communal riots are clear pointers towards the fact that India is yet to achieve the level of a stable and mature secular democracy. If the Uniform Civil Code is introduced in such a society, it may lead to further complications. Moreover, for Indians, religion is not just a casual part of their personal life. Here religion plays a primary role in the lives of most of the people. Therefore the introduction of the civil code should be a well-thought out and careful process. Another argument against the Uniform Civil Code is that its imposition will be a violation of Fundamental Rights envisaged by the Constitution.
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       . Fundamental Rights are judicial rights and are regarded as the most important rights guaranteed by the Constitution. Article 26(b) says, “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion.”
 Those people who argue against the Uniform Civil Code are of the opinion that for believers, matters like marriage, divorce and inheritance are religious affairs and the Constitution guarantees freedom of such activities and GRA – GLOBAL RESEARCH ANALYSIS X 158 Volume : 2 | Issue : 9 | Sept 2013 • ISSN No 2277 – 8160 therefore the Uniform Civil Code will be a violation of that. This issue has already been a matter of intense debate as the Supreme Court has observed that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Article 25 and 26 of the Constitution. While delivering the judgment on the Indian Succession Act, Section 118, the Supreme Court was categorical in asserting that the right to follow one’s personal law is not a Fundamental Right. Their argument is that this code will affect the religious freedom of minorities. They claim that the sentiments of the minorities are not considered while implementing a common law! There are political parties and leaders who are always eager to hijack such issues to improve their vote banks. We must depoliticize the uniform civil code. Uniform Civil Code and Gender Justice It is a known fact that in the personal laws of all the communities’ gender injustice is inbuilt.
    This is supposed to be the result of the socio-economic conditions under which they evolved. That is why there is a need to reform the personal laws or bring about a uniform civil code to ensure not only equality between men and women but also to bring about gender justice. Women undergo many difficulties and experience severe trauma in matters concerning their marriage, divorce and inheritance. Polygamy, desertion, triple divorces are just a few examples to show the possibilities of harassing women. Indian women are formally granted equality in political rights through the Indian Constitution. But due to the different personal laws, women experience inequality, deprivation and violence. Within the family, their position is pitiable. The question of women’s rights as human beings is completely ignored. The personal laws are designed to keep them forever under the control of men. Even though the Constitution of India gives equality to women in certain areas – legal and social, they are not effective to ensure real equality.
    The Supreme Court in a few judgments has opined that legislation for a common civil code as envisaged by Article 44 of India’s Constitution should be enacted. It said so in Shah Bano’s Case in 1985, in Sarla Mudgal Case in 1995 and in Vallamattam case in 2003. A critical look at the constitutional debate, legislative enactments and judicial decisions very clearly indicate the lack of seriousness in ensuring justice to women. Gender issues need to be addressed very seriously. A uniform civil code is, therefore, foremost a matter of gender justice. If it is implemented it will lay the foundation for women to overcome many social evils like dowry system, bigamy etc which makes a woman feel inferior and degraded.
Conclusion :  As a conclusion I would say that a secular India needs a uniform civil code but urgent need to force any uniform civil code on an unwilling population is not necessary. Most people are not ready to adopt truly secular laws separated from religious customs. The Uniform Civil Code can be successfully introduced only after achieving improved levels of literacy, awareness on various socio-political issues, enlightened discussions and increased social mobility. The ultimate aim of reforming uniform civil code should be for ensuring equality, unity and integrity of the nation and justice both men and women.

Disclaimer:

This blog is owned and maintained by Hardi Goradia.

The content on this site is offered only as a public service to the web community and does not constitute solicitation or provision of legal advice.  This site should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter. The comments and opinions expressed on this site are of the individual author and may not reflect the opinions of the firm or any individual attorney.

Nothing on this site is intended to create an attorney-client relationship and nothing posted constitutes legal advice. Neither the transmission of the information contained on this site nor your use of the information or communication with Hardi, creates an attorney-client relationship between you and Hardi. No information communicated to Hardi, through this site will be protected by either the attorney-client privilege or the work product doctrine.

This website does not provide legal advice of any kind, and we cannot guarantee that the information is accurate, complete or up-to-date. Given the nature of and speed with which online communications are developed, the opinions and thoughts posted to this site are of a casual nature and may change after further reflection. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.

Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing on this site should be used as a substitute for the advice of competent legal counsel. The author, Hardi Goradia assumes no responsibility to any person who relies on information contained on this site and disclaim all liability in respect to such information. You should not act upon information in this website without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction.

The author of the content of this site are only authorized to practice law in the jurisdictions in which they are properly licensed. For more information, please contact the authors. Unless otherwise indicated, the attorneys listed on this website are not certified by any state’s or jurisdiction’s board of legal specialization; nor certified as an “expert” or “specialist” pursuant to any authority governing the practice of law.