The cries to repeal AFSPA have grown louder in the wake of the recent Nagaland massacre. Will it finally be reality?
The once insurgency hotbed, India’s Northeast region, has seen much bloodshed in the past several decades. While there has been a decline in insurgency-related violence in recent years, a piece of legislation that was enacted to protect the security forces continues to draw criticism.
The killings of 14 villagers during a botched anti-insurgency operation in Nagaland’s Mon district has once again put the spotlight on the highly controversial Armed Forces (Special Powers) Act, 1958, also known as AFSPA.
Tribal outfits, civil society groups, and human rights organisations strongly condemned the Indian Army’s action in Nagaland’s Oting in December 2021, calling for either the repeal or removal of what is seen as one of the most draconian laws in the country. Additionally, three chief ministers from the eight Northeastern states have demanded repeal of this law.
More importantly, the 4 December incident could worsen the already fragile peace process between the Central government and the National Socialist Council of Nagaland (Isak-Muivah), or NSCN-IM. In 2015, the Modi government had inked a Framework Agreement with the Naga rebels aimed at finding a lasting solution to India’s oldest insurgency, but the peace talks have hit some hurdles of late.
Tribal outfits, civil society groups, and human rights organisations strongly condemned the Indian Army’s action in Nagaland’s Oting in December 2021, calling for either the repeal or removal of what is seen as one of the most draconian laws in the country.
Notwithstanding the massive uproar over the Mon killings, the Centre extended AFSPA in Nagaland for another six months. Earlier, the law was extended in Assam until February 2022. Manipur is already under AFSPA, so are parts of Arunachal Pradesh.
AFSPA (Assam and Manipur), 1958, which is applicable to the Northeast (barring Sikkim), is one of India’s internal security laws. It guarantees a large degree of impunity to those armed forces engaged in anti-insurgency operations.
Section 3 of this Act empowers the Governor to declare the entire state or some parts of it as a “disturbed area”. However, Section 3 cannot be construed as conferring a power to issue a declaration without any time limit. There should be periodic review of the declaration before the expiry of six months, according to the Supreme Court ruling in writ petitions clubbed together as Naga People’s Movement of Human Rights (NPMHR) Vs Union of India, 1997.
AFSPA (1958) states that, “any commissioned officer, warrant officer, non-commissioned officer, or any other person of equivalent rank in the armed forces may, in a disturbed area… fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order.”
It also empowers armed forces to “arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest.”
AFSPA (1958) was extended to the rest of the Northeastern region, which has been home to several ethnic rebel groups.
It first came into force in the erstwhile Naga Hills, formerly a part of Assam. Subsequently, AFSPA (1958) was extended to the rest of the Northeastern region, which has been home to several ethnic rebel groups.
There are two more versions of this law—AFSPA (Punjab and Chandigarh), 1983; and AFSPA (Jammu and Kashmir), 1990. AFSPA has been in the eye of the storm as a result of alleged excesses committed by security forces against militants and the civilian population alike. Human rights activists and legal experts see it as one of the most draconian laws in India since Independence.
AFPSA has been misused by security forces over the years. In 2016, the Supreme Court had directed the federal agency, Central Bureau of Investigation (CBI), to probe the alleged role of the Army and Assam Rifles troops in 1,528 extrajudicial killings committed between 2000 and 2012 in Manipur, another insurgency-hit state.
The apex court clearly said that armed forces personnel committing crimes did not enjoy absolute immunity. “The law is very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Criminal Procedure Code,” the court said.
It is alleged that security forces often flout the AFSPA guidelines laid down by the apex court. In the NPMHR vs Union of India (1997) case cited above, the Supreme Court said, “an officer exercising those powers” forms the opinion that it is necessary to take action for maintenance of public order against the person/persons acting contravention of such prohibitory order” and “a due warning as the officer considers necessary is given before taking action. The laying down of these conditions gives an indication that while exercising the powers, the officer shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
In connection with the Mon killings in December 2020, the Nagaland police filed a First Information Report (FIR) against the Indian Army’s elite 21 Para Special Forces. The Army termed it a case of mistaken identity and ordered a Court of Inquiry.
The law is very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Criminal Procedure Code.
“It is to be noted that at the time of the incident there was no police guide nor did the security forces make requisition to the 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 (sic),” read an excerpt from the FIR.
A report from the Union Home Ministry paints a sorry picture. It says that civilian casualties in the Northeast have seen a sharp rise in three years. As many as 33 people, including the 14 deaths in Nagaland’s Mon district, were reported in 2021 compared to only three and 20 civilian casualties reported in 2020 and 2019, respectively.
It is unfortunate that despite years-long protest and demand to repeal AFSPA, this black law continues to exist. Needless to say, Manipur’s “Iron Lady” Irom Sharmila’s 16-year hunger strike until August 2016, demanding the repeal of AFSPA, did not yield any positive results.
The most common refrain offered in favour of the law is that it provides protection to the armed forces involved in anti-insurgency operations against attempts to malign them.
Leading security experts have stressed that AFSPA should not be construed as a “licence to kill” anybody at the slightest suspicion and that charges of extrajudicial killings or “fake encounters” against armed forces personnel must be investigated.
The most common refrain offered in favour of the law is that it provides protection to the armed forces involved in anti-insurgency operations against attempts to malign them. But there is no proper mechanism to ensure that it is not misused.
A part of the problem is also attributed to the failure of respective state governments to maintain law and order. It is argued that if the local police can effectively handle the situation, then the need of AFSPA would not arise, and it can be withdrawn from the region.
It is yet to be seen how the present dispensation at the Centre, which seems to be keen on solving the decades-old insurgency problems in the Northeast, reacts to the popular demands and experts’ advice on the issue of repeal of AFSPA.
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Jayanta Kalita is a senior journalist and author based in Delhi. He writes on issues related to Indias Northeast.
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