Much has been already said of why the guardians of the law breaking the law is far graver than ordinary people doing so. By the same corollary breaking the law by those who are challenging it should come under a much more different yardstick. But this play with words aside, there is an important issue which needs to be clarified. This has to do with one argument which continues to persist in any talk on the need to repeal the Armed Forces Special Powers Act, AFSPA, and the felt need by many rights activists to have the Army accountable for whatever acts of unwarranted violence they perpetrate. Without seeming to support the continuance of this draconian act, the argument goes that violence committed against civil population are much more by insurgents, and even by the state police which is not covered by the AFSPA, than by the Army which is empowered by the AFSPA. In other words, it is not the AFSPA which is responsible for the trouble in Manipur and the Northeast, but insurgency and its resultant violence. In a more subtle way, this is also saying that the AFSPA is in good hands and would not be misused beyond understandable limits, and on a comparative scale has not been used to perpetrate violence as much as the state police and insurgents have done, though no such laws empower them. Further it also amounts to saying that violence will continue with or without the law so long as the conditions for violence exist on the ground.
There is much truth in this argument and indeed violence and atrocities committed on the common citizen by the state police and insurgents may be a lot more than those perpetrated by the Army and other central paramilitary forces covered by the AFSPA. However there is one vital difference. Leave the insurgents for the time being, for they function on a different plane of logic altogether, and instead make a comparison between violence committed by the state police and the Army. Since the 2004 climactic moment in the protest against the AFSPA in the wake of the Thangjam Manorama custodial rape and murder case, and the subsequent removal of the act from the seven Assembly constituencies of the greater Imphal area, on the plea that the Imphal area can be handled by the state’s own counter insurgency force, who in local parlance have come to be known as police commandos, it is true that acts of violent confrontation has been confined largely between the police and insurgents, leaving the Army somewhat out of the picture. Plenty of atrocities on civil population also have resulted out of this. The point then is, if the police still can commit and harass civilians in unwarranted manners although not covered by the impunity guaranteed by the AFSPA, should not this much reviled act be given its due and redefined as less draconian, if at all, than it has been made out to be?
This seems like a compelling argument. However, there is a very important point missed here. The AFSPA gives sweeping powers to the Army acting in an area declared as “disturbed” under the Disturbed Area Act. This include the power of a non-commissioned officers to kill on suspicion somebody may commit acts of violence, destroy houses again on suspicion it may be used as shelter by people with violent intents inimical to the law, etc. So when the Army perpetrates violence of the nature, it is doing it by the provisions of the law, unlike the police which would be committing similar violence but in disregard of the limits set on them by the law. What the police does is in this sense illegal and if they are not hauled up for it, it reflects on the will and intent of the government in power. In the case of Army acting as per the AFSPA, the acts of violence and impunity does not reflect so much on the government but the law itself. There should be no dispute which of these two scenarios is more sinister. One is a question of breaking the law to perpetrate violence on civil population, the other is of the law not only sanctioning such acts but also giving legal immunity to those who may be challenged as having jumped their already grossly excessive briefs. This certainly would be one of those peculiar ironic twists of circumstance when those breaking the law may actually appear less sinister than those acting by the law. The moot point is, the flaw here is not of those who are executing the law and its provisions, but the law itself which is flawed and in a manner extremely disparaging to the democratic credentials of the country.