Apply AFSPA When Needed, Don’t Repeal It

On December 4 last year, an intelligence-based operation by the Indian Army in the Mon district of Nagaland went horribly wrong, resulting in the death of six civilians. A high-level enquiry has since been ordered in the unfortunate loss of civilian lives. Another committee has also been constituted to examine the feasibility of withdrawing the Armed Forces (Special Powers) Act, 1958 from Nagaland. The Committee has to submit its report within 45 days.

As in the past, the incident in Mon has triggered a fierce debate over the continuation of the AFSPA in different states of the north-east and the possible need to repeal the Act, described variously by its critics as ‘colonial’, ‘draconian,’ and ‘excessive.’ The Act was first promulgated under the British Raj in 1942 but later passed by the Parliament in 1958 in the newly-Independent India after a Naga group rose in armed revolt. Since then it has been applied in almost all north-eastern states with varying geographical spread and for different durations. In 1990, the AFSPA was also extended to Jammu & Kashmir. In the past 64 years, every time, an operation by security forces goes wrong and civilians get killed, the debate over AFSPA gets reignited.

Going beyond the immediate, however, a closer look is needed at the army’s deployment, the application of the AFSPA and the circumstances under which it has come to acquire such negative connotations. Discussion on the law, however, gets clouded by emotions, distrust and even lack of understanding about the procedure under which AFSPA is applied.

 When the AFSPA was made applicable in the northeast in the late 1950s and the state of J&K in 1990, India was fighting a well-funded proxy war fuelled by an implacable adversary. In the past six decades, the country’s collective efforts have brought down all known parameters of violence down to manageable levels with the help of the Indian Army. 

Not unexpectedly, a section of civil society and politicians have started calling for the removal of the AFSPA from Nagaland. The State Assembly has even passed a resolution to repeal the Act. The assumption in this demand is that the cause of all ills plaguing the North East is the AFSPA and all the immunity it provides to the Indian Army. Nothing is farther from the truth, however. First up, it must be noted that the AFSPA for its actuation and legal validity, depends on Article 355 of the Indian Constitution which calls for the Union Government to protect every state against external aggression and internal disturbance.

Moreover, the operationalisation of AFSPA is based on a number of sequential steps taken by both the State and Central governments. It is essential to go into the details of the procedure both for the uninitiated and those who deliberately ignore the in-built safety mechanism that is designed to prevent the misuse of the Act.

 Once the State government feels that armed insurgent movement(s) have reached such extreme levels of violence and the existing Law and Order mechanism is unable to act effectively to stem the violence levels, the area is declared as a “Disturbed Area” by way of an Official Gazette notification.

This step of last resort is only taken when the governor/State government feels that an armed insurgent/ terrorist movement has reached such extreme levels of violence that the sovereignty of the country as a whole is affected or the entire Law & Order machinery of the state, including the police and paramilitary forces, has failed to stem the violence.

Only then are the Armed Forces are called in to counter the violence, in the expectation of creating conditions for the political processes to restart once the violence levels are brought down to tolerable levels.

 The AFSPA is, thus an enabling act which empowers Security Forces to operate in insurgency affected areas and as long as the area remains disturbed the need for the Act remains. The Act affords minimum essential legal protection to members of the Armed Forces to ensure fulfilment of the constitutional obligations. The Act has provisions that the Central government can sanction prosecution or other legal proceedings against personnel who act in contravention to applicable laws and SOPs. 

It is for this fact that the duration of the application of AFSPA has been given six months at a time, to be revised in case the state feels further retention of Armed Forces in the Disturbed Area is necessary for stemming the violence levels beyond the first six months.

Once the Army starts operating in the Disturbed Areas, its primary aim is to apply a calibrated level of violence in order to break the cohesion of Armed insurgent groups. Since the Army is operating in a civilian area where insurgents, civilians and Overground workers (OGWs) are indistinguishable from each other, there is a need to provide legal protection to the personnel for the Armed Forces to enable them to do their task efficiently.

The Army is trained to protect the international borders of the country against external adversaries. Once it is tasked for internal security duties without policing powers, it requires the legal backing of AFSPA to conduct kinetic operations, without which the primary aim of designating an area Disturbed becomes null and void. Similar provisions are also given to Police and Central Armed Police Forces.

 Critics have often chafed at the provisions under Sections 3, 4, 6 and 7 of the AFSPA for being ‘draconian.’ What exactly are these provisions?

Section 3: It lays down the authority which has the power to declare areas as ‘disturbed’. These authorities are the central and the state governments. So the army does not declare the area as disturbed. 

Section 4: It gives the army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ammunition dumps, fortifications/shelters/hideouts and to stop, search and seize any vehicle. 

Section 6: It stipulates that arrested persons and seized property are to be made over to the police with the least possible delay. 

Section 7: It offers protection of persons acting in good faith in their official capacity. The prosecution is permitted only after sanction by the central government.

These provisions came up for scrutiny before a constitution bench of the Supreme Court in a case titled ‘Naga People’s Movement of Human Rights Vs UOI’. The five-judge bench elaborately dealt with the challenge to the legality of deployment of the armed forces in aid to civil power. The court had then unambiguously ruled that AFSPA cannot be regarded as colourable legislation or a fraud on the Constitution. 

The apex court said that the conferring of powers vide Section 4 of AFSPA could not be held arbitrary or violative of Article 14, 19 or 21 of the Constitution. In fact, having considered the role and circumstances under which the armed forces have to operate, the Supreme Court extended the scope of powers vested vide 4 and 6 of AFSPA so as to include by implication, the power to interrogate the person arrested. 

It also allowed the armed forces to retain the weapons seized during the operations in their own custody rather than to hand them over to police authorities.

The mere fact that the provisions of AFSPA have to be invoked in a particular area ex facie establishes that handling the law and order situation had gone beyond the control of the state government. The army personnel operating in those circumstances need to enjoy at least similar powers as the police force if not wider ones. So, just as Section 45 of the CrPC disallows arrest of public servants and just as Section 197 provides impunity against prosecution, Section 7 of the AFSPA gives similar protection to the army personnel. Nothing more, nothing less.

And yet, most opponents of the AFSPA have chosen to either downplay or completely ignore this similarity. So what is the way forward?

The revocation of AFSPA from any area needs a concerted view of all organs of the state and Centre. A suggested way is to convert these areas into police administered areas/police districts as was done for Srinagar initially without revoking AFSPA. Subsequently, as the situation improves, while evolving the revocation, an exit strategy needs to be worked out for gradual withdrawal of armed forces from the specified area leading to a smooth transition.

Lifting the AFSPA can certainly be attempted but the provisions of the AFSPA, as an emergency law that empowers the army – the nation’s instrument of last resort – must continue to remain on the statute books given the increasingly violent and uncertain times that the subcontinent is likely to face in coming years. Repealing it will weaken the mechanism to deal with extremist threats.

 When needed, it must be applied in small doses. Every country has to balance the need for a stringent law with the basic principles of ensuring human dignity and human rights. Therein lies the challenge for India’s leadership.

Nitin A. Gokhale