Shefali Rathi Mantry
Indian Army’s botched up security operation and counterattack that resulted in the death of 14 civilians in Mon district of Nagaland has renewed the demand for repeal of the Armed Forces Special Powers Act (AFSPA), 1958.
This sentiment is gaining momentum and is echoed by the Chief Ministers of Nagaland, Manipur, and Meghalaya, various civil society organizations and tribal bodies, political parties, and Naga armed groups.
It is reflected in the fact that the legislative Assembly in Nagaland held a one-day special session to discuss the draconian law and voted unanimously to adopt a resolution demanding the repeal of AFSPA.
What is AFSPA?
The AFSPA has a colonial past. It was first introduced by the British as an ordinance in 1942 as a measure to suppress the Quit India Movement.
The ordinance was later promulgated as the AFSPA Act, 1958 to tackle the growing violence and insurgency in undivided Assam post-independence. Later all the seven states in the Northeast were deemed “disturbed” and bought under the purview of the Act.
The act allows the “armed forces to open fire, even causing death, against any person carrying arms and ammunition and gives them powers to arrest individuals on the basis of reasonable suspicion, and also search premises without warrants.”
It also grants the army personnel indemnity, as prior approval of the central government is needed to carry out any legal proceedings against them.
Is the AFSPA to be blamed for the Mon incident?
It is argued that sweeping powers and blanket immunity guaranteed to armed forces under the law, has enabled human rights violations by the Army.
But does the act provides no safety nets? The answer is No. In 2016, the Supreme Court, hearing a case on extrajudicial killings in Manipur, asserted that the law did not guarantee blanket immunity to armed forces.
While the Act gives powers to security forces to open fire, this cannot be done without a warning given to the suspect.
The act further states that the armed forces must act in collaboration with the district administration of the state and any suspects incarcerate by security forces should be handed over to the local police station within a day.
In the Mon incident, the district administration wasn’t aware of the operation nor were the unarmed coal miners given a prior warning. So, the Mon incident might have not happened if the forces on the ground wouldn’t have dereliction their duty and the law was implemented in its true spirit?
One incident can be passed off as a dereliction of duty by the Army and it can be argued that the Act itself cannot be blamed.
But the Mon killings are not an isolated event. Since the law protects armed forces personnel from civil prosecution unless it is sanctioned by the Centre, it has led to excesses by the Army- Kohima shooting of 1995, the Malom massacre of 2000, the rape and murder of Thangjam Manorama Devi in 2004 are notable incidents of state violence against civilians in the North-East.
Most of these excesses go unpunished as they disappear in martial courts whose processes and decisions are out of public view.
Does the AFSPA do any good?
According to the Annual Home Ministry Report of 2019-20, there has been a significant decline in insurgency incidents by 70 percent, casualties of security forces personnel by 78 percent, and civilian deaths by 80 percent in the Northeast region in the last six years, where the AFSPA is in force.
Additionally, it is not that the state intends the AFSPA to be in force perpetually. AFSPA has been withdrawn from many areas where the situation has improved.
For instance, AFSPA was revoked in Mizoram way back in 1986, Tripura in May 2015 and Meghalaya in April 2018.
It is important to mention that the army and civilians in the Northeastern states are not always loggerheads.
A notable instance happend in Manipur’s Pherzawl district where the Vang Battalion of the Assam Rifles was in the process of vacating their operating base, the locals came out in large numbers to request the Assam Rifles not to do so.
Is AFSPA a necessary evil?
In response to the brutal rape and murder of Thangjam Manorama Devi, Justice BP Jeevan Reddy Committee was appointed by the centre in 2004 to review the AFSPA.
The Committee recommended that the AFSPA be repealed. This was reiterated by the Administrative Reforms Commission in its fifth report on “public order”. The report found that the imposition of AFSPA fuels cycles of violence from both the army and insurgents.
Despite the systematic state violence it permits, AFSPA is defended by some as being born out of State necessity, to govern restive areas in the northeast. But violence and insurgency are not restricted to the Northeast. The state does use less repressive and more constitutional means to address the problem of violence in other parts of India, making the argument of it being a necessary evil in the northeast, a little weak.
Plus, AFSPA endorses the constant othering of the northeastern states. Though it is true, that the strategic location of these states on India’s borders makes it an issue of national defense and sovereignty. Thus, the same treatment rule always doesn’t hold true.
AFSPA, however severely damages the democratic and constitutional fabric of the Indian state. AFSPA has turned into an emergency from a tool of last resort to a tool of first resort, to be deployed with impunity and without accountability. The very existence of the law undermines constitutional principles such as the right to life and liberty.
The AFSPA is a partisan issue. The government and armed forces deem it essential for security and stability in the northeastern states. On the other hand, civil society organizations and citizens see it as evil. The truth, however, lies between these two contrasts.
Views expressed are the author’s alone and not necessarily those of Qrius and/or its staff
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