The recent violence in Nagaland, wherein security forces gunned down 13 innocent civilians, has rekindled the debate around the legitimacy of the Armed Forces Special Powers Act(AFSPA). To understand its present contours, it is important to trace the act’s origin. In 1943, the British promulgated the act to suppress the Quit India Movement. It was enacted by the independent Indian government again in 1958 for dealing with disturbed areas, having high incidences of insurgency and extremism. At present, it is applied to Nagaland, Assam, Mizoram, parts of Manipur, and three districts of Arunachal Pradesh. A similar act was enforced in J and K in 1990.
AFSPA was conceived for the purpose of enabling quick decision-making in conflict zones. Earlier, the armed forces had no constitutionally derived powers to act quickly in internal matters, in order to execute spontaneous cordons and searches, ambushes, counter-ambushes, pitched battles to protect internal security. What the present law forgets, is that soldiers are humans, and are prone to mistakes just as well, and such sweeping powers to the military remove accountability from the process. The clause stating “use of minimum force” has time and again been violated. Moreover, we need to review whether the purpose with which the AFSPA was set out, and question whether that purpose has been achieved despite the law having existed for several decades. And tightening state control is only growing discontent within the Northeast as well as J and K- forcing us to rethink how we approach such political fractures. Don’t civilians in these states deserve the restoration of normalcy?
What are the special powers provided to armed forces under this act?
1. “To use force, and open fire after a warning, if a person is found to be in violation of a law.”
2. “To arrest and search houses without warrant.”
3. “Impose ban on firearms if there is reasonable suspicion.”
4. “The army personnel are not required to take local police into the loop.”
5. “To destroy fortified positions, shelters, structures used as hide-outs, training camps or as a place from which attacks are or likely to be launched.”
6. “Immunity to armed forces for their actions.”
However, these sweeping powers have been prone to gross misuse, reflected in incremental extra-judicial killings, arrests, fake encounters, rapes and other human rights violations by the armed forces, which has led to further alienation of people, more insurgency in reaction and a stalled peace process in conflict-ridden areas such as Nagaland. We can see that in the anger and hurt of the local people; for instance, Irom Sharmilla, an activist, famously sat on a long hunger strike against the use of AFSPA in the region of Manipur protesting for women’s rights in such conflict zones.
The Jeevan Reddy Committee sat down to review the AFSPA in 2005, noting that the AFSPA has become “an instrument of discrimination and high handedness- thus it should be repealed.” The Administrative Reforms Committee -2 has reiterated the same. As an alternative, the Justice Verma Committee, 2013 recommended that the present AFSPA be at least amended, to ensure protection of women in conflict zones.
The Supreme Court has also sharply warned that- “If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are ‘enemy,’ not only the rule of law but our democracy would be in grave danger."
These incidents that underscore the state’s repeated failure to safeguard social, economic and political rights of the citizens not only have consequences on domestic politics, but also threaten India’s democratic credentials abroad. In the past, UN's independent Special Rapporteur on Violence Against Women in her 2014 report, has urged the Government to “Repeal, as a matter of urgency, the Armed Forces (Special Powers) Act and the Armed Forces (Jammu and Kashmir) Special Powers Act and ensure that criminal prosecution of members of the Armed Forces is free from legal barriers."
There has been a lack of political will so far to repeal/ amend the AFSPA. Successive governments have backed the law contending that “the security personnel deployed in counter insurgency operations would be demoralised by a flurry of fake allegations and lawsuits if the law is repealed.”
We must also question the over-reliance of military means to initiate peace. As some point out, who gets to decide what, when, how, to what degree and with what effect should the military intervene in civilian matters? Instead we should turn our attention to creating collaborative governance frameworks that respond to the aspirations of the people. It is important not to overlook the factors( such as administrative failures) that led to the creation of AFSPA in the first place, and work towards addressing the roots of the problem.
The AFSPA must be repealed, or at the very least, rewritten in a manner that prevents its misuse and allows for accountability of armed forces. At the end of the day, we need to rethink laws that grant unbridled power, and frame the law in a manner that is sensitive to the changing context. When in doubt, our policies and laws should always go back to the famous saying by Montesquieu- “Power tends to corrupt, and absolute power corrupts absolutely.”