Rape is a crime against humanity, in the literal sense of its meaning, irrespective of the presence of an armed conflict where international humanitarian law (IHL) can be applied. India has experienced violent separatist movements since the Naga insurgency in the 1950’s followed by other states in the northeast like Assam, Mizoram and Manipur, and in the nineties in Kashmir.
When the civil administration collapsed armed forces were brought in to establish law and order, and for its operational efficiency and legitimacy the Armed Forces Special Powers Act (AFSPA) was entitled to them. But the forces that were brought in to protect the people, allegedly committed acts of crimes against women including rape, and were unpunished due to the immunity guaranteed from judicial prosecution by the act called AFSPA. This was when the people in parts of India lost faith in the armed forces.
The brutal gang-rape of a young girl in Delhi on 16th of December, 2012, prompted a committee to be constituted following immense public outcry, to look into possible amendments of the Criminal Law to provide better justice to the victims of sexual assault of extreme nature. The three-member committee led by Justice J.S. Verma did a commendable job by issuing a report in just a month. The report included a section on protection of women in conflict zones. The report suggests that AFSPA, like legal protocols, needs to be reviewed immediately, and strongly recommends that any sexual violence against women by armed forces or uniformed personnel must be brought under the purview of ordinary criminal law.
The report appeals for section 6 of AFSPA that says, prior sanction of the central government is required to prosecute an armed personnel performing duties under this act, be amended for sexual violence against women. That means no sanctions shall be required to prosecute a security personnel accused of sexual crimes.
The armed forces must welcome these recommendations, as it will not hinder operational efficiency or effectivity of the force while conducting counter insurgency/counter terrorist operations in disturbed areas. The armed forces, or more precisely, the army, requires AFSPA if it is deployed for internal security because it cannot function under Indian Penal Code (IPC) or Criminal Procedure Code (CrPC) simply because it is not a police organization. To function efficiently in internal security matters the army will require the basic policing powers like search and arrest, and even use deadly force if necessary without notice from civil administration.
These powers are given to them under AFSPA. But the non prosecution of security personnel accused of grave crimes like rape and other sexual violence is creating a culture of impunity in this country, and that is precisely the reason why the people are losing faith in the armed forces. This is a chance for the armed forces and the government of India to prove to the people that AFSPA does not legitimize systemic or isolated sexual violence while performing internal security duties, by accepting the recommendations of the Verma committee.
It is well acknowledged in India that in matters of security the Indian Army is the only organization that the people trust because of its honesty, dignity and the passion with which it serves the country, but Indians want AFSPA like laws to be repealed without understanding the consequences. The Verma committee has proposed a solution that will restore the public faith in the armed forces by amending the act to provide provisions to protect women in conflict. This amendment will also deter the armed forces from disrespecting the dignity of a woman, and over time through practice it will infuse values into the armed forces and build a working ethos that is more acceptable to the common public.
Protection from sexual violence is a constitutional right because the constitution guarantees the concept of equality and justice that absolutely encompasses gender. Women in conflict areas are also entitled to the same security and respect as women in other parts of the country. Therefore, in order for women to live with dignity and for the armed forces to shed its malefic image, the parliament must accept the Verma committee report and make the required amendments as soon as possible.