AFSPA: A colonial remnant that continues to haunt India The law gives unbridled powers to armed forces

11, Dec 2021 | Sanchita Kadam

December 4, 2021, marked a dark day for Nagaland, as the state, unwillingly under the control of armed forces, suffered a loss of 13 innocent civilian lives at the hands of personnel of 21 Para Special Forces. It is such unfortunate incidents that remind the rest of the country of the plight of such states still reeling under the control of the armed forces after having been declared as “disturbed areas” under Armed Forces Special Powers Act (AFSPA) 1958, and why they have always voiced dissent against the law.

The AFSPA is a very brief law with limited provisions, just 6 sections which cover the ambit of the Act. Within these 6 provisions, the government has the power to declare areas as disturbed areas and to give special powers to armed forces and also allows it to protect the armed forces acting under it. A plain reading makes it seem like a law that was made to protect an area which is in a disturbed or dangerous condition, necessitating the use of armed forces along with civil power, to better protect the populace. But this succinct Act has engulfed Jammu and Kashmir and many states in the North East region for decades. Over the years it has only come to light that the armed forces bestowed with unbridled powers have acted in disregard of human rights and against the interest of the people they were meant to protect in the first place.

When AFSPA was enacted in 1958, it was only in place in Assam and Manipur, purportedly to curb rebellion by Naga separatist groups. In 1972, it was extended to Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh. The law came to Jammu and Kashmir in 1990. It was applied to Kashmir Valley in 1990, and in 2001, it was extended to Jammu province as well. However, the Ladakh region which is now a separate Union territory was never under AFSPA.

It has been long argued that a law like AFSPA has no space in a democratic country like ours and should be done away with. The law seems like a cousin of repressive colonial laws and does not fit in a 21st century democracy that has been independent for more than 75 years. The issue with the Act is not just that it grants unlimited and excessive powers to the armed forces, but also the impunity that comes along with it, which only makes matters worse, when you consider the rampant violation of human rights.

India is a Union but also a federation of states

The Nagaland cabinet has passed a resolution seeking repeal of AFSPA, which means the state does not wish for the Centre to continue to control a democratically elected state government and its people, through such an oppressive law. This brings us to reflect upon the mixed federal and Union structure of our country. Though purporting to be a division of legislative powers between the Union and the States, the Seventh Schedule to the Constitution, it is well accepted, does represent the division of powers between the Union and the States. the Constitution does not contemplate that the obligation to protect the States in the Union shall be carried out by the Union Government only by invoking Article 352 (external aggression or internal rebellion) or Article 356 (to ensure that the government of every State is carried on in accordance with the provisions of the Constitution); the said obligation can be performed in such manner as may be found appropriate, without of course violating the spirit and letter of the Constitution.

Brief history of Nagaland

Not wanting to accept any form of foreign domination, alien subjugation and exploitation, the Nagas in the “Naga Hills District” formally declared their independence on August 14, 1947, from the British Rule. The Nagas were invited to join the Union of India when it was formed for the first time in history in 1950, but they rejected the offer outright. On January 24, 1950, the Naga National Council (NNC) informed the Indian Government, the United Nations (UN) and those countries that had their embassies in Delhi that the Nagas do not accept the Indian Constitution.

To reaffirm the declaration of Naga Independence, the Naga people under NNC took the historical step to strengthen the Naga political movement as they organised a Naga Voluntary Plebiscite and informed the Government of India (GoI) on January 1, 1951, of their intentions. The Plebiscite was held on the May 16, 1951. The result tabulated eventually in March 1952 was 99.9% voted in favour of sovereign independent Naga state.

In June 1947, the NNC and Assam Governor Akbar Hyderi initiated negotiations to settle the Naga issue by way of an interim political and administrative arrangement.

As per theagreement, the Nagas were granted varying degrees of judicial and administrative autonomy. The Naga Council was also granted taxation rights. The Governor of Assam and the Government of India were to ensure the observance of the agreement for a period of 10 years, following which a decision was to be taken to either extend the agreement or enter into a fresh one.

However, the clause about the 10-year period has been interpreted by the two sides differently. While the Nagas saw it as independence from India after 10 years, India took it to mean that a new agreement would be entered into should the present one fail to address all concerns sufficiently.

Hence, it has become abundantly clear that Nagaland wanted to be independent from India and now it has been relegated as a “disturbed area” and under the constant control of the central government and its armed forces, completely against the wishes and interests of the residents of the state.

AFSPA and the North East

Scrapping the AFSPA was one of the key demands of the draft framework agreement to maintain peace in the region, signed between the National Socialist Council of Nagaland (Isak Muivah) and the government interlocutor RN Ravi in 2015. However, the Act was not withdrawn.

The constitutionality of AFSPA had been challenged in the Supreme Court (Naga People’s Movement of Human Rights v Union of India, 1997). The petitioners and the National Human Rights Commission (NHRC) had argued that Parliament could not legislate on what was essentially a domain of the state — maintaining public order. However, a 5-judge bench upheld the constitutionality of the law unanimously.

“The conferment of the said power on the Central Government regarding declaration of areas to be disturbed areas does not, however, result in taking over of the state administration by the Army or by other armed forces of the Union,” the court had said. The court had also warned against armed forces using excessive force. However, the incident of December 4 is proof of the fact that this directive of the Supreme Court has not been followed at all.

IT has been widely acknowledged that t the general administration of at least two states, Manipur and Jammu and Kashmir are wholly dependent on the security forces.[1] The Act has been in force in Manipur since its inception.

AFSPA and the unbridled powers

Under section 4 of AFSPA, an officer of the armed forces can fire upon or use force upon any person “acting in contravention of any law or order for the time being in force in the disturbed area”, “after giving such due warning as he may consider necessary”.

The personnel can even prohibit assembly of 5 or more persons and can prohibit carrying of “things capable of being used as weapons”.

The personnel can even destroy any “shelter” or fortified position from where armed attacks are likely to be made.

Further, they can arrest, without warrant, any person against whom there is suspicion that he has committedor he might commit a cognisable offence and is also allowed to use force to make such an arrest.

They also have the power to enter and search without warrant any premises and may use force for that purpose. They are required to hand over such arrested persons to the nearest police station but not within a stipulated time only “with the least possible delay”.

The powers are unbridled on the face of it, but the armed forces are furthermore protected under section 6 where the Act provides that no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person acting under the Act.

That means the power of the central government in this regard is absolute, with the state government having no say in it.

Although the Supreme Court in the 1997 judgement asked that state government be consulted. It also directed that the same should be periodically reviewed. Accordingly, each notification for extension is valid for 6 months however, no real review takes place and the same is extended in the most mechanical manner without serious considerations of the situations on ground and without consultation with the State government in power.

AFSPA is colonial

AFSPA is based on a 1942 British ordinance intended to contain the Indian Independence movement during the Second World War and it was enacted in 1958 by independent India. Initially it was only in place in Assam and Manipur, purportedly to curb rebellion by Naga separatist groups. In 1972, it was extended to Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh. The law came to Jammu and Kashmir in 1990. While it was applied to Kashmir Valley in 1990, it was extended to Jammu province as well in 2001. However, the Ladakh region which is now a separate Union territory was never under AFSPA.

Sanjib Baruah explains in his book that the roots of the law go back to colonial policing, where the army and the police were viewed as complementary, not alternative, forces of control. People are effectively treated as subjects rather than as citizens of the country.

Political unwillingness and interest of armed forces

In 2016, then Chief Minister of erstwhile state of Jammu and Kashmir Mehbooba Mufti had suggested removal of AFSPA from certain areas of the valley. In response, some defence experts had said that this was not the time and the army had made it clear that it needed AFSPA to fight militants in J&K and the Centre was silent on the issue.

The Congress-led United Progressive Alliance presented the picture of a government that had good intentions frustrated by forces beyond its control, of natural compunctions that had to be set aside for national compulsions of security, defined by the military apparatus.[2]

In November 2014, former Home Minister P Chidambaram of Congress called AFSPA an obnoxious law. However, when he had the Home Ministry reigns in his hands, he had defended the law in a meeting with the United Nations High Commissioner for Human Rights. In 2010, there were again serious discussions on repeal of the law as over 120 protestors were killed in Kashmir Valley, however, when the Congress core committee met to discuss the proposal, differences arose between the home and defence ministries. Congress which was in power until 2014 maintained that there was lack of consensus between government and the army making it difficult to take a decision on AFSPA and had also said that he armed forces were not ready for a more “humane law”.

“The Army has taken a strong stand against any dilution of the AFSPA… We can’t move forward because there is no consensus. The present and former Army Chiefs have taken a strong position that the Act should not be amended… They also do not want the government notification [of bringing areas under the AFSPA] to be taken back,” Chidambaram had said in 2013, asking, “How does the government move forward…to make the AFSPA a more humanitarian law?”

The UPA government made a pretense of reviewing the situation back then and showed failure of consensus. However, the BJP has showed no such signs. The pressure on the government is building up especially from the state government of Nagaland which seems determined to get the AFSPA removed. It is pertinent that the goal should be complete repeal of the law, however it depends on what of political pressure is built, and whether the central government feels compelled to make this move in interest of human rights. In 2015, the Union Home Ministry straightaway rejected the Justice Reddy Commission’s report.

Justice Reddy Commission

Way back in 2005, a Committee led by retired Supreme Court judge, Justice BP Jeevan Reddy, clearly stated that deployment of armed forces or para military forces of the Union to restore public order in any State ought to be an exception and not the rule. Unless it is absolutely essential for the aforesaid purposes, the armed forces of the Union should not be so deployed, since too frequent a deployment, and that too for long periods of time, carries with it the danger of such forces losing their moorings and becoming, in effect, another police force, a prey to all the temptations and weaknesses such exposures involve. Such exposure for long periods of time may well lead to the brutalisation of such forces – which is a danger to be particularly guarded against.

All this means that as soon as the public order is restored or the internal disturbance is quelled, the forces have to be withdrawn to their regular duties. The commission also noted that while our armed forces are one of the most disciplined in the world, situations may arise when they are deployed outside their regular duties, i.e. when they are deployed for maintaining public order or for quelling internal disturbance, certain members thereof may seek to take advantage of their power and position to harass or otherwise trample upon the rights of the citizens of this country.

The Committee had recommended the repeal of AFSPA, saying:

“The Act is too sketchy, too bald and quite inadequate in several particulars. It is true that the Hon’ble Supreme Court has upheld its constitutional validity but that circumstance is not an endorsement of the desirability or advisability of the Act. When the constitutional validity of an enactment is challenged in a Court, the Court examines (i) whether the Act is within the legislative competence of the Legislature which enacted it and (ii) whether the enactment violates any of the provisions of the Constitution. The Court does not – it is not supposed to – pronounce upon the wisdom or the necessity of such an enactment.”

The Committee also recommended that legislative form be given to the directives of the Supreme Court in its 1997 judgement.

To conclude

Even though this incident has come to light now only in Nagaland, it is not only Nagaland that needs to be free from AFSPA but also other states where it remains in operation and when calls for repeal from Nagaland are being made, one ought not to lose sight that this draconian law need not be in place in any part of the country.

Related:

So long as AFSPA protects soldiers from accountability, such atrocities will continue: HRW

Nagaland Killings: NHRC takes suo motu cognisance

Army tried to hide bodies: Nagaland DGP’s report

 

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