The AFSPA is a temporary statute applicable only to a disturbed area, is time bound and does not carry an irrevocable inbuilt immunity that is not challengeable; it is subject to the full scrutiny of the judiciary. There is no evidence to substantiate the charge of systemic abuse.
Post the recent killing of 14 civilians in Nagaland’s Mon district in an Indian Army operation gone awry, the demand to repeal the Armed Forces Special Powers Act (AFSPA) has gained more traction. On 17 December, hundreds of people gathered in Kohima to stage a protest for withdrawal of this “dark” law.
Epithets like “draconian” and “licence to kill” have been used to demonise the AFSPA. But how valid are these damning charges? Does the AFSPA really need to be scrapped?
The Armed Forces Special Powers Act was enacted by Parliament of India on 11 September 1958 (Act 28 of 1958) in response to the escalating public violence in Nagaland.
The intention of the Act was “to enable certain special powers to be conferred upon members of the armed forces in disturbed areas” in order to facilitate their task of maintaining law and order.
Over the years this Act has been challenged, re-examined and appropriately clarified by the judiciary—an exercise that attests to the transparency, strength and sensitivity of Indian democracy.
The first caveat to understand about the AFSPA is that it is applicable only in areas designated as “disturbed” as defined in Clause 3 of the Act.
Currently, the Act is in force in Nagaland, Assam, Manipur—excluding the Imphal Municipal Council Area—parts of Arunachal Pradesh and Jammu &Kashmir. It cannot be anybody’s argument that these areas are not troubled or “disturbed”.
Additionally, in the Naga People’s Movement of Human Rights v. Union of India, (AIR 1998.SC 431) the Courts emphasized the ad hoc nature of the Act stating that the declaration (of a disturbed area) cannot be open ended; it must be bound by a time frame subject to periodic review.
The most controversial aspect of the AFSPA concerns the special powers conferred on the Armed Forces and the supposed immunity provided to those acting under this law.
Clause 4 (a) states: “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,―if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death….”
And Clause 6 avers: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”
The notion that the AFSPA is an unrestricted licence to kill and that Army personnel have blanket immunity is erroneous. The original Act itself clearly states that persons acting under the Act can be subject to scrutiny with previous “sanction of the Central Government”.
Accordingly, in the case of Naga People’s Movement of Human Rights v Union of India a five-judge Constitution Bench unanimously upheld the law but expressly clarified: A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, …. the necessary sanction for institution of prosecution and/or a suit or other proceeding should be granted under Section 6 of the Central Act.”
In 2016, a bench of Justices Madan Lokur and U.U. Lalit, while providing a directive to the government on the alleged fake encounters in Manipur, reiterated: “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 next important question: Is there ample evidence to prove that the AFSPA has been systemically abused by the Armed Forces to demand its retraction?
The proceedings of the Court in the case of the Extra-Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2013) is an eye opener.
Responding to allegation that 1,528 persons had been killed in fake encounters in Manipur by police personnel and personnel in uniform of the armed forces of the Union, the court ruled that the allegation necessitated a “thorough inquiry” and directed the petitioners to provide complete detailed documentation (whether the allegations were based on any judicial inquiry or an inquiry conducted by the National Human Rights Commission or an inquiry conducted under the Commissions of Inquiry Act, 1952) to aid the process.
However, the petitioners were able to gather information with regard to only 655 (42%) of 1,528 alleged deaths. In 560 of 655 cases the evidence was too flimsy to be credible being based on unverified written complaints (170), oral complaints (78), eyewitness accounts (134) and family claims (178). Eventually only 95 (6% of the original 1,528) cases (35 Commission of Inquiry cases, 37 Judicial Inquiry and High Court cases and 23 NHRC cases) fulfilled the criteria to warrant further investigation.
After reviewing this data, the court declared: “We have perused the tabular statement given with regard to cases with written complaints, oral complaints and eye-witness accounts as well as family claimed cases but find that apart from a simple allegation being made, no substantive steps appear to have been taken by either lodging a First Information Report (FIR) or by filing a writ petition in the concerned High Court or making a complaint to the National Human Rights Commission (NHRC). The allegations being very general in nature, we do not think it appropriate to pass any direction for the time being in regard to the cases concerning these written complaints, oral complaints, cases with eye-witness accounts and family claimed cases. It is not that every single allegation must necessarily be inquired into. It must be remembered that we are not dealing with individual cases but a systemic or institutional response relating to constitutional criminal law.”
Clearly, what the court concluded was that there was insufficient evidence to corroborate the charge of systemic abuse of the law: an indirect indictment of the hyped nature of the allegations.
While even one death of an innocent civilian is a death too many, we need to take broad perspective of the fatality count: it needs to be interpreted in the context of a raging insurgency that has taken a toll of thousands of lives. Another point to note is that these deaths occurred over a period of 30 years.
The AFSPA is a temporary statute applicable only to a disturbed area, is time bound and does not carry an irrevocable inbuilt immunity that is not challengeable; it is subject to the full scrutiny of the judiciary. There is no evidence to substantiate the charge of systemic abuse. The AFSPA is not that draconian as it is made out to be.
To repeal the AFSPA is an open invitation for insurgents to step up their activities and a boon to our hostile neighbours who continue to foster efforts to destabilise our country.
Finally, the power to repeal the AFSPA, to a great degree, lies with the very people who quibble about it. Civil society needs to be morally robust and physically resilient to sandbag votaries of violence and prevent them from flourishing amongst their midst. Deny these wayward agencies of moral and logistic support and they will crumble and implode. Devoid of these disruptive forces, the AFSPA will become redundant and automatically withdrawn.
The Indian Army is not the brute force of an authoritarian regime out to suppress the people. It is the legitimate arm of a democratic government mandated to maintain law and order. It is deployed for this purpose only as a last resort—in the most exceptional of situations and as per the Constitution of this land.