INSTITUTIONALISED KILLING DEBATE 1958
AFSPA 1958 Parliamentary Debate (an excerpt)
by Malem Ningthouja
Annexure XXIV, Lok Sabha Debates, Second Series, Volume XVIII, 1958,
(11th August to 22nd August, 1958), Fifth Session, 1958, Vol. XVIII
Contains Nos. 1 to 10, Lok Sabha Secretariat, New Delhi
ARMED FORCES (ASSAM AND MANIPUR) SPECIAL POWERS BILL.
18 August 1958
by Malem Ningthouja
Annexure XXIV, Lok Sabha Debates, Second Series, Volume XVIII, 1958,
(11th August to 22nd August, 1958), Fifth Session, 1958, Vol. XVIII
Contains Nos. 1 to 10, Lok Sabha Secretariat, New Delhi
ARMED FORCES (ASSAM AND MANIPUR) SPECIAL POWERS BILL.
18 August 1958
The Minister of Home Affairs (Pandit G. B. Pant): I beg to move: “That the Bill to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the State of Assam and the Union Territory of Manipur, be taken into consideration.”... ... This is a very simple measure. It only seeks to protect the steps that the armed forces might have to take in the disturbed areas. It is not possible over such a vast areas to depute civil magistrates to accompany the armed forces wherever there may be trouble, because it happens unexpectedly.
Sri Mahanty (Dhenkanal): I want to raise a point of order. My point of order is that we cannot proceed with the Bill unless certain constitutional obligations imposed under article 352(1) of the Constitution are fulfilled. It can be said that this particular legislation does not come under the impact of the emergency conditions as enumerated in Chapter XVIII of the Constitution. But certain parts of it do directly come under Chapter XVIII of the Indian Constitution. In this context, I invite your attention to clause (6) of the Bill which says; “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” This immediately takes away, abrogates, pinches, frustrates the right to constitutional remedy which has been given in article 32 (1) of the Constitution. Here let me bring it to your notice that article 32 (1) of the Constitution ensures and guarantees the constitutional remedies. It says “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
Dr. Krishnaswami (Chingleput): The Bill contravenes the provisions of the Constitution since is does not satisfy certain Constitutional requirements. It seeks to confer powers on the Armed Forces, and to take complete control of areas in the State of Assam when such areas have been declared to be a disturbed area. This virtually transfers the executive power in respect of such areas to the Centre. This is not tantamount to calling of the military aid of the civil power to quell a local disturbance where the State authority retains the power to regulate movement of the forces. ... What the Bill contemplates is to make over the area, under clause 4, completely to the Armed Forces thereby divesting the State of all powers in respect of that area. This is a state of affairs that can be brought about only a Proclamation of emergency promulgated under article 352 of the Constitution. The Bill seeks to circumvent these provisions and attempts to usurp the powers of the State not warranted by the Constitution.... The proclamation o declaring a disturbed area is different. But in clause 4 the power given particularly to the Armed Forces and the civil authority is divested of all control... clause 4 is virtually a replica of the corresponding provisions in the Defense of India Rules under the Defense of India Act after a proclamation of emergency was issued under the Government of India Act, 1935
Shri Mahanty: ... This is a unique legislation, the kind of which has never been contemplated since this Indian Parliament came into existence. (AnHon. Member; Regulation). Regulation is not legislation; it is an administrative and executive flat. What I am trying to submit is that this is a martial law. This is martial law as defined in article 34 of the Constitution. ... we are taking recourse to a most extraordinary measure. We are empowering the havildars and non-commissioned officers –to shoot any person they like and choose, to attach any property, to destroy any building and so on and so forth, and also arrest persons without warrant.
Shri L. Achaw Singh (Inner Manipur): ... I rise to oppose this Bill. I do not find any occasion or any reason why there should be such a measure to be adopted by the Central Government. It seems the Central Government wants to enact into law the ordinance which it has promulgated on the 22nd May last. ... In my humble opinion this measure is unnecessary and also unwarranted. This Bill is sure to bring about complications and many difficulties in those areas which are going to be declared as disturbed areas. I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases, especially in the sub-division of Kohima and Mokokchung. In such a situation I d not like that the officers should be invested with such special powers. Recently, such an incident took place in the headquarters of the North Cachar and Mikir Hills district. Instead of rounding the hostile Nagas, some military personnel trespassed into the house of some retired tribal official and committed rape on the widow. So, such things have deteriorated the situation. The tribal people have risen against the military people there. It is, therefore, dangerous to invest the military authorities with extraordinary powers of killing and of arrest without warrant and of house-breaking... I have got reports of the operations of the armed forces in these tribal sub-divisions of Manipur, especially in the sub-division of Tamenglaong where these armed forces have by force occupied the religious institutions, in spite of the protests of the local people. Most of them are Christians there and they hold their churches sacred. But these armed forces would occupy these institutions. There are schools, and the armed forces could easily occupy them, but then, in spite of the protests of the people, they encroached upon, and trespassed into the house... Then, they often persecutions and also harassments would take place. I would rather request the Government not to encourage such things in the tribal areas. They would wound the religious susceptibilities of the people there and would create more difficulties... This piece of legislation is an anti-democratic measure and also a reactionary one. Instead of helping to keep the law and order position in these areas, if they declare some areas as disturbed areas, it would cause more repression, more misunderstanding and more of unnecessary persecutions in the tribal areas. This is a black law. This is also an act of provocation on the part of the Government. How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only sever the right of the people and harass innocent folk and deteriorate the situation... The stationing of troops in the border areas of Assam and Manipur and also in the Naga Hills has been a very disturbing feature to the tribal people. It will not help the situation, and the sooner these troops are withdrawn, the better. Now that the condition have come to normal in the Naga Hills and most of the tribal areas, it is better that the troops are withdrawn and let things take their own course. Those who commit crimes and murders in these areas can be dealt with under the ordinary provisions of the law... I would like to ask one question at the end. Why the Government has been following all the time such a negative policy? For example, in Shillong, they have maintained the family o Phizo, and they have educated the children of Phizo of a cost of Rs. 500 per mensum. On the other hand they are helping them, and, on the other hand, they have been trying to round them off? This is an ambiguous position. Government should take up a positive policy from now.
Shri Rungsung Suisa (Outer Manipur Reserved –Sch. Tribes): ... I want to ask the Government very seriously; are the conditions such that this Ordinance is necessary in Manipur? Do the Government think that such kind of an Ordinance will solve the problem? ... All these Ordinance and sending of Armed Forces will not solve the problem. I can tell the House very clearly and very frankly that it is only creating more bitterness and harm. We know what a soldier is. A soldier is trained in the art of killing and destruction. He cannot appreciate the yearning of the human soul. As soon as he finds a colleague of his is killed, his anxiety is to kill some other people, whether they belong to the rebel party or not. So, we have to learn one lesson from the past actions.
Shrimati Renu Chakravartty (Basirhat): There is just one point. The hon. Minster has not answered the basic point made in all the speeches, that the real way of dealing with it is to come to a political settlement. What is the idea of having an ordinance and the military?
Mr. Deputy Speaker: This is exactly what he has said. He is trying to deal with the political situation.
Shri Jaipal Singh: My name may be recorded, and my division number.
Mr. Deputy Speaker: His name has been recorded, and his opinion has been recorded, namely that he is opposing it. The point is whether he wants division now. I have declared that the ‘Ayes’ have it.
Shri Jaipal Singh: No.
Mr. Deputy Speaker: The ‘Ayes’ have it, the ‘Ayes’ have it.
The motion was adopted.
Dr. Krishnaswami (Chingleput): The Bill contravenes the provisions of the Constitution since is does not satisfy certain Constitutional requirements. It seeks to confer powers on the Armed Forces, and to take complete control of areas in the State of Assam when such areas have been declared to be a disturbed area. This virtually transfers the executive power in respect of such areas to the Centre. This is not tantamount to calling of the military aid of the civil power to quell a local disturbance where the State authority retains the power to regulate movement of the forces. ... What the Bill contemplates is to make over the area, under clause 4, completely to the Armed Forces thereby divesting the State of all powers in respect of that area. This is a state of affairs that can be brought about only a Proclamation of emergency promulgated under article 352 of the Constitution. The Bill seeks to circumvent these provisions and attempts to usurp the powers of the State not warranted by the Constitution.... The proclamation o declaring a disturbed area is different. But in clause 4 the power given particularly to the Armed Forces and the civil authority is divested of all control... clause 4 is virtually a replica of the corresponding provisions in the Defense of India Rules under the Defense of India Act after a proclamation of emergency was issued under the Government of India Act, 1935
Shri Mahanty: ... This is a unique legislation, the kind of which has never been contemplated since this Indian Parliament came into existence. (AnHon. Member; Regulation). Regulation is not legislation; it is an administrative and executive flat. What I am trying to submit is that this is a martial law. This is martial law as defined in article 34 of the Constitution. ... we are taking recourse to a most extraordinary measure. We are empowering the havildars and non-commissioned officers –to shoot any person they like and choose, to attach any property, to destroy any building and so on and so forth, and also arrest persons without warrant.
Shri L. Achaw Singh (Inner Manipur): ... I rise to oppose this Bill. I do not find any occasion or any reason why there should be such a measure to be adopted by the Central Government. It seems the Central Government wants to enact into law the ordinance which it has promulgated on the 22nd May last. ... In my humble opinion this measure is unnecessary and also unwarranted. This Bill is sure to bring about complications and many difficulties in those areas which are going to be declared as disturbed areas. I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases, especially in the sub-division of Kohima and Mokokchung. In such a situation I d not like that the officers should be invested with such special powers. Recently, such an incident took place in the headquarters of the North Cachar and Mikir Hills district. Instead of rounding the hostile Nagas, some military personnel trespassed into the house of some retired tribal official and committed rape on the widow. So, such things have deteriorated the situation. The tribal people have risen against the military people there. It is, therefore, dangerous to invest the military authorities with extraordinary powers of killing and of arrest without warrant and of house-breaking... I have got reports of the operations of the armed forces in these tribal sub-divisions of Manipur, especially in the sub-division of Tamenglaong where these armed forces have by force occupied the religious institutions, in spite of the protests of the local people. Most of them are Christians there and they hold their churches sacred. But these armed forces would occupy these institutions. There are schools, and the armed forces could easily occupy them, but then, in spite of the protests of the people, they encroached upon, and trespassed into the house... Then, they often persecutions and also harassments would take place. I would rather request the Government not to encourage such things in the tribal areas. They would wound the religious susceptibilities of the people there and would create more difficulties... This piece of legislation is an anti-democratic measure and also a reactionary one. Instead of helping to keep the law and order position in these areas, if they declare some areas as disturbed areas, it would cause more repression, more misunderstanding and more of unnecessary persecutions in the tribal areas. This is a black law. This is also an act of provocation on the part of the Government. How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only sever the right of the people and harass innocent folk and deteriorate the situation... The stationing of troops in the border areas of Assam and Manipur and also in the Naga Hills has been a very disturbing feature to the tribal people. It will not help the situation, and the sooner these troops are withdrawn, the better. Now that the condition have come to normal in the Naga Hills and most of the tribal areas, it is better that the troops are withdrawn and let things take their own course. Those who commit crimes and murders in these areas can be dealt with under the ordinary provisions of the law... I would like to ask one question at the end. Why the Government has been following all the time such a negative policy? For example, in Shillong, they have maintained the family o Phizo, and they have educated the children of Phizo of a cost of Rs. 500 per mensum. On the other hand they are helping them, and, on the other hand, they have been trying to round them off? This is an ambiguous position. Government should take up a positive policy from now.
Shri Rungsung Suisa (Outer Manipur Reserved –Sch. Tribes): ... I want to ask the Government very seriously; are the conditions such that this Ordinance is necessary in Manipur? Do the Government think that such kind of an Ordinance will solve the problem? ... All these Ordinance and sending of Armed Forces will not solve the problem. I can tell the House very clearly and very frankly that it is only creating more bitterness and harm. We know what a soldier is. A soldier is trained in the art of killing and destruction. He cannot appreciate the yearning of the human soul. As soon as he finds a colleague of his is killed, his anxiety is to kill some other people, whether they belong to the rebel party or not. So, we have to learn one lesson from the past actions.
Shrimati Renu Chakravartty (Basirhat): There is just one point. The hon. Minster has not answered the basic point made in all the speeches, that the real way of dealing with it is to come to a political settlement. What is the idea of having an ordinance and the military?
Mr. Deputy Speaker: This is exactly what he has said. He is trying to deal with the political situation.
Shri Jaipal Singh: My name may be recorded, and my division number.
Mr. Deputy Speaker: His name has been recorded, and his opinion has been recorded, namely that he is opposing it. The point is whether he wants division now. I have declared that the ‘Ayes’ have it.
Shri Jaipal Singh: No.
Mr. Deputy Speaker: The ‘Ayes’ have it, the ‘Ayes’ have it.
The motion was adopted.
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REPEAL AFSPA