The killing of six civilians in an ambush laid by a Special Forces sub-unit in the Tiru-Oting area in Nagaland on 4 December 2021, and the death of eight more and one soldier in the violence triggered by the incident, have once again put the Armed Forces Special Powers Act, or AFSPA, at the centre stage. In Nagaland and other states, where the “allegedly draconian” 1958 Act is applicable, there has been public and political clamour for its removal.
On 26 December, the Narendra Modi government instituted a high-level committee to examine the withdrawal of the AFSPA in Nagaland. Hopefully, the report of the committee will lead to a review of the application of the Act in all affected Northeastern states. In any case, the indefinite application of the Act when the once secessionist tribal insurgencies have been reduced to extortion-driven criminal activity, which can well be controlled by the police, defies logic.
Let there be no doubt that without an enabling Act, the State’s instrument of last resort — the armed forces — cannot be employed to control the situation in “disturbed areas”. Thus, what must be debated is the need for a model Act in tune with the law of the land to facilitate deployment of the armed forces in disturbed areas and the conditions that warrant its application and subsequent removal.
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AFSPA’s colonial legacy
The AFSPA draws its inspiration from the Armed Forces (Special Powers) Ordinance, promulgated by the British on 15 August 1942 to enable the deployment of the armed forces to suppress the ‘Quit India’ movement. In 1947, the central government invoked four similar ordinances to deal with the adverse internal security situation during the Partition. In 1948, the Armed Forces Special Powers Act was promulgated, replacing the four ordinances. The Armed Forces (Special Powers) Act, 1948 was repealed in 1957, only to be resurrected a year later as the Armed Forces (Special Powers) Act, 1958 because of the deteriorating internal security situation in the ‘unified Assam’ as a result of the Naga rebellion.
It is ironic that the AFSPA, on two counts, is even more draconian than the colonial model that inspired it. As per the latter, the special powers to order “shoot to kill”, search and arrest are restricted to an “officer not below the rank of Captain”. In the case of AFSPA, the special powers can be exercised by “any commissioned officer, warrant officer, non-commissioned officer”.
With respect to the protection of the soldiers from prosecution and legal proceedings, Section 4 of the colonial ordinance put a rider of the soldier’s actions being presumed to be in “good faith”. AFSPA’s Section 6, which covers the same provision, has the words “good faith” missing, either by design or default.
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Aim of the Act
The primary mission of the armed forces is to ensure the security and territorial integrity of the country against external threats. Except in doing so, the armed forces have no constitutional authority or legal powers to use force or firearms against anyone. The armed forces can be called out in “aid to civil authority” to maintain law and order, but can use “minimum force” only when authorised by a magistrate in writing.
When the armed forces are deployed to control a situation in disturbed areas/insurgency environments, they require an enabling law. The AFSPA provides them with a legal framework to exercise the use of force. Basically, it was meant to give the armed forces the powers available to the police under the Code of Criminal Procedure.
Since the armed forces do not function like the police, the provisions of the Act far exceed the police powers in terms of search, seizure, destruction and use of force. More than that, the Act gives the armed forces impunity from legal proceedings and prosecution except with the permission of the central government. By default, the impunity has become absolute as the central government has never given such permission — a right upheld by the Supreme Court.
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Controversial in application
AFSPA has been controversial in application primarily due to its brevity, ambiguity and absence of prescribed rules. As Justice B.P. Jeevan Reddy observed in his report (pp 74) in 2005, “The Act is too sketchy, too bald and quite inadequate in several particulars.”
So long as the armed forces acted in ‘good faith’ and had a visible internal mechanism to deal with the abuse and rogue actions, there was no problem. Two developments over the years have queered the pitch. One is the indefinite deployment of the armed forces in disturbed areas and the other is the lack of transparency in dealing with abuse of the Act and rogue actions.
The extraordinary powers vested under the Act were probably based on the presumption that the armed forces would be deployed for a short duration and return to their barracks on completion of the mission. An excellent example is the deployment of the armed forces in Punjab in the 1980s. However, the opposite seems to be the rule in Nagaland and Manipur, and parts of other Northeastern states.
Elected governments have long been in place. The administration and police are functioning like any other state. Once secessionist insurgencies have been reduced to a criminal industry involving the runt of erstwhile insurgents, politicians, police and the bureaucracy. Yet, AFSPA continues to be in place and the armed forces continue to independently function as knights on white horses, trying to create a perfect world. The recent events in Nagaland only prove the point. It is time for the armed forces to go back to barracks in the Northeast.
It goes without saying that the AFSPA only protects ‘good faith’ actions and not rogue actions with a malafide intent. In absence of prescribed rules under the AFSPA, the armed forces have evolved their own elaborate rules for operating in insurgency areas. The Supreme Court has also given numerous guidelines. Over a period of time, the credibility of the military justice system to deal with human rights violations has become suspect. To compound the problem, neonationalist sentiments have deified the armed forces to virtual inaction with respect to human rights violations. There has been a marked tendency to cover up rogue actions and take shelter under the AFSPA.
The prolonged deployment of the armed forces and its lack of transparency in dealing with human rights violations has, in the words of Justice Jeevan Reddy, made the AFSPA “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.” It is time for the AFSPA to be repealed.
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The way forward
The time has come for the Modi government and the nation to de novo examine the employment of the armed forces to manage internal security problems. External threats are looming large and the armed forces are undergoing a transformation to deal with them. Most insurgencies have been reduced to manageable limits and demand political solutions. The continuous deployment of the armed forces armed with an archaic Act to manage largely political problems is counterproductive and adversely affects their professional reputation and efficiency with respect to their primary role.
The Rashtriya Rifles and Assam Rifles must be merged with the Central Reserve Police Force to assist the states in handling internal security situations that are beyond their means. Even under a replacement Act, the deployment of armed forces should only be for the minimum essential period.
The Bharatiya Janata Party (BJP) is a political stakeholder in most Northeastern states and is well aware of the ground situation and the sentiments of the people. It must not miss the opportunity to launch a new beginning.
Lt Gen H S Panag PVSM, AVSM (R), served in the Indian Army for 40 years. He was GOC in C Northern Command and Central Command. Post-retirement, he was Member of Armed Forces Tribunal. He tweets @rwac48. Views are personal.
(Edited by Srinjoy Dey)