Home minister Amit Shah said that his government regretted the death of 14 civilians in Nagaland after an operation by the security forces went wrong and the subsequent violence. However, the government would do well to re-think the law that is the trigger behind such incidents in India’s insurgency-hit areas. The Nagaland violence has brought focus back on the unchecked powers that security forces wield under the Armed Forces Special Powers Act, or AFSPA.
I share my experience of serving in the Indian Army and participating in counter-insurgency operations at a time when AFSPA was not in force in Nagaland.
When Nagaland had no AFSPA
While in the Army for a brief spell in the 1960s, I had the opportunity to participate in counter-insurgency operations in the districts of Phek in Nagaland and Ukhrul in Manipur, both bordering Myanmar. The period was late 1967 to mid-1968 — when insurgency was at its peak. Underground Naga rebels, armed with weapons from East Pakistan (now Bangladesh) were moving to China via Myanmar to get trained and return with superior weapons and ammunition to take on the Indian Army. AFSPA was in force in Manipur, but not in Nagaland. During the counter-insurgency operations, we came face-to-face with these well-trained and armed ‘underground hostiles.’ Our orders were to capture hostiles and weapons and not to kill. And we did conduct several operations successfully, without feeling any necessity for the draconian AFSPA.
There was a time when the Army did not want to kill even the armed insurgents. Now, unarmed civilians are becoming victims. Is this what AFSPA has achieved in its six decades in Manipur and five decades in Nagaland? The Indian Army has a doctrine that defines its primary role as preserving national interests and safeguarding sovereignty, territorial integrity and unity of India against any external threats by deterrence or by waging war. Its secondary role is to assist government agencies to cope with ‘proxy war’ and other internal threats, and provide aid to civil authority when requisitioned for the purpose. The doctrine is clear. The secondary role comes only during internal threats in different forms — short intervention during severe riots and breakdown of law and order and medium-term role in counter-insurgency operations against terrorists or secessionists. By its very definition, the role cannot be long term.
These deaths in Nagaland’s Mon district have put an end to the festive mood of the Hornbill Festival that was underway. Kisama Heritage Village, the venue of the festival, which would have otherwise been brimming with joyous hosts and tourists, was full of posters that read “Remove bloodthirsty Indian Armed Forces from Nagaland”, “We condemn the killing of innocent civilians by security forces” and “we demand justice.” Not satisfied with empty promises, people of Nagaland have almost unanimously demanded the repeal of AFSPA, which they feel is the root cause for such violence.
The Nagaland police has called the incident “intentional murder.” This is what the FIR says: “At around 1530 hours, coal mine labourers of Oting village were returning to their native village from Tiru in a vehicle Bolero pick up. On reaching at Longkhao between Upper Tiru and Oting village, security forces blankly opened fire at the vehicle without any provocation resulting to the killing of many Oting villagers and seriously injuring many others…It is to be noted that at the time of incident there was no police guide nor security forces did make requisition to police station to provide police guide for their operation. Hence it is obvious that the intention of security forces is to murder and injure civilians.”
Also rad: Nagaland BJP calls civilian killings in Mon ‘genocide & war crime’, wants AFSPA repealed
AFSPA and its background
To understand the cry for repeal of AFSPA, we need to go back in history.
AFSPA is based on a 1942 British ordinance intended to contain the Indian Independence movement during the Second World War. The Government of India adopted this law in September 1958 through an enactment in Parliament. Initially, AFSPA applied only to the Northeast territories of Assam and Manipur and was aimed at containing an armed rebellion by Naga militants. In 1972, the Act was extended to other Northeastern states of Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh. Similar laws were also applied to counter-militancy in Punjab from 1985 to 1994. A version of AFSPA has been active in Jammu and Kashmir since 1990.
Powers under AFSPA extend to the armed forces once an area is declared “disturbed” under Section 3 of the Act. This declaration is not subject to judicial review. Section 4(a) of the AFSPA grants the armed forces power to shoot to kill in law enforcement situations thereby violating “Right to Life” contained in Article 21 of the Constitution of India. The right to liberty and security of a person is violated by section 4(c) of AFSPA, which fails to protect against arbitrary arrest by allowing soldiers to arrest anyone merely on suspicion that a “cognisable offence” has already taken place or is likely to take place in the future.
The right to remedy is violated by Section 6 of the Act, which provides officers who abuse their powers under AFSPA with immunity from legal accountability. This section of the Act prohibits even state governments from initiating legal proceedings against the armed forces on behalf of their population without central government’s approval. Since AFSPA provides powers to arrest without warrant and then detain arrested persons for unspecified period of time, numerous incidents of torture during interrogation have been reported.
While exercising such draconian powers, there is bound to be misuse.
In a July 2016 verdict, the Supreme Court ripped open the cloak of immunity and secrecy provided by AFSPA to security forces for deaths caused during encounters in ‘disturbed areas.’ In July 2017, the court directed a CBI probe into alleged extra-judicial killings by the Army, Assam Rifles and police in the insurgency-hit state of Manipur. It had asked the CBI Director to appoint a Special Investigating Team (SIT) to probe into the alleged killings. The order had come on a PIL seeking probe and compensation in the alleged 1,528 extra-judicial killings by security forces in Manipur between 2000 and 2012. The outcome of this is not known.
Sensing the dangers of the Act in 2005 itself, a high-level Committee headed by Justice B.P. Jeevan Reddy of the Supreme Court, tasked with reviewing the AFSPA unambiguously, recommended its repeal. This is what the Committee said in its 147-page report: “The Act is too sketchy, too bald and quite inadequate in several particulars… the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.”
Rejecting the principal submission made by the armed forces in favour of continuation of AFSPA, the Committee pointed out that protection from legal proceedings against soldiers acting in good faith already exists in Section 49 of the Unlawful Activities (Prevention) Act, 1967. The Committee also suggested amendments to this Act to incorporate measures that would regulate the already permissible conduct of armed forces personnel in areas where they are deployed to fight terrorist activities and provide protection to ordinary citizens against possible abuse.
Also read: ‘Dark day, head hung in shame’ — Nagaland deaths spark furore over AFSPA in Parliament
Are we the mother of all democracies?
By applying AFSPA for a very long period, large areas in our border states are being militarised. Over the years, the effort of politicians has been to make the Army an instrument of an increasingly autocratic State. And it looks as if some in the Army top brass, with a false sense of ‘military patriotism’, are playing second fiddle to these. That is why, despite the Nagaland Peace Accord of 2015 signed in the presence of Prime Minister Narendra Modi, the draconian law continues to exist. And we call ourselves “Mother of all Democracies!”
M.G. Devasahayam is a retired IAS officer and chairman of People-First. He also served in the Indian Army. Views are personal.
(Edited by Anurag Chaubey)