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 this can be subject to scrutiny with previous ‘sanction of the Central Government’.
The tragic and unfortunate death of 14 innocent civilians in Nagaland on 4 December in an Army operation gone awry and its aftermath spotlight the travails of insurgency in the Northeast; its political repercussions and its deleterious impact on national security.
At the outset, the high decibel chorus of outrage at this incident appears to be entirely defensive, however, this scathing backlash begs a tempering revision; an objective reassessment that conforms to logic and factors in the antecedent of history—an essential step to ensure that the exigencies of national security do not compromise public safety and that the process of rapprochement continues unhindered.
The sequence of fatalities began on the evening of 4 December, when a special unit of the Army shot and killed 6 miners in Nagaland’s Mon district, mistaking them to be insurgents. Angered by these killings, local villagers attacked Army personnel, setting fire to two security vehicles. In the melee that ensued, 8 more individuals lost their lives including 7 civilians and a soldier. Another civilian was killed the following day when a mob of over 500 people stormed a camp of the Assam Rifles in the district headquarters of Mon.
Nagaland is home to one of the oldest insurgencies in India that dates back to 1947 when on the eve of India’s Independence from the British, A.Z. Phizo, the legendary Naga leader declared Naga independence. Over the years, differences between Naga leaders with different tribal affiliations have spawned a multiplicity of militant groups advocating Naga secession. Brutal violence has been integral to the activities of these insurgent groups. In one period from 1992 to 2000, Naga insurgency claimed more than 1,699 lives including 599 civilians and 235 security personnel. While the last two decades have seen an overall tapering of the violence, major terror attacks continue to occur at frequent intervals.
In a ruthless attack on June of 2015, militants belonging to the National Socialist Council of Nagaland (Khaplang), killed 18 soldiers of the Dogra regiment in Chandel district.
More recently, the People’s Liberation Army and the Manipur Naga People’s Front jointly claimed responsibility for the ambush of an Assam Rifles convoy on 14 November 2021 in Manipur’s Churachandpur district. Seven people including Colonel Viplav Tripathi were killed; his wife and son who were travelling with him were also not spared.
Such instances are evidence that the Indian Army patrols a dangerous neighbourhood and functions under trying circumstances. A split-second decision may mean the difference between life or death for both Army personnel as well their opponents. In the current incident the Army was acting on intelligence information regarded as credible. It appears to be an unintentional error carried out in the line of duty.
The Army has expressed regret and a high-level SIT has been instituted to investigate the matter.
Consequent to this incident there have been calls to repeal the Armed Forces Special Powers Act. To repeal the AFSPA is an open invitation for insurgents to step up their activities and a boon to India’s two hostile neighbours who wish to destabilise our country.
The AFSPA was first introduced in Nagaland and not Kashmir as people are prone to assume. The genesis of the AFSPA can be traced to the escalating violence in Nagaland in the early 1950s at the urging of Phizo: telephone lines were cut; government institutions were burnt and money was extorted from the public to sustain the insurgents. Brigadier S.P. Sinha, in his book, Lost Opportunities (Lancers Publishers, 2012) outlines the immediate events that preceded the promulgation of the AFSPA: “NNC (Naga National Council- the political organization of the Naga people) formally declared the formation of Federal Government of Nagaland (FGN) in March 1956, and hoisted its flag at Phenshinyu, some 40 km from Kohima, in the Rengma area…. The Naga Home Guards, which was by now 3,000 strong and armed with weapons left behind by Allies and the Japanese after the end of fighting in World War II, constituted the army of the underground. …The hostiles attempted seize of Kohima in June 1956 led by Kaito Sema and Tungti Chang. …The hostiles were by now fairly well organised and had intimate knowledge of terrain and an efficient intelligence network. In a well-planned action the hostiles ambushed a road protection party of one junior commissioned officer and thirty-two other ranks of 9 Punjab on road Khonoma-Jaluke on April 1, 1957 and killed all except one who survived to tell the tale. The ambush party had consisted of two to three hundred Nagas. The assembly and concealment of such a large body of hostiles demonstrated the skill of Nagas in guerrilla warfare.”
In response to this serious threat to the internal security of India and to ensure that the Army was not hobbled by cumbersome bureaucratic and judicial restraints in its efforts to hunt down the insurgents, the Armed Forces (Assam and Manipur) Special Powers Act, 1958 was enacted on 11 September 1958.
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 this can be subject to scrutiny with previous “sanction of the Central Government”.
Over the years, AFSPA has withstood legal challenges. In the case of Naga People’s Movement of Human Rights v Union of India, 1997, a five-judge Constitution Bench unanimously upheld the law but 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 this clarification: “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 AFSPA is not that draconian as it is made out to be nor does it carry an inbuilt impunity that is not challengeable.
The 4 December incident was tragic. Using the killings to ratchet up the tension in the region and harden negotiating positions with the Central government serves nobody, least of all the people of Nagaland. The unintentional mistakes of a small band of Army personnel (as of now until the investigation is completed) cannot be seen as a proxy for the intentions of the Central government and an entire nation. Reason must prevail. India is large hearted enough to accommodate people of diverse ethnic, religious and linguistic backgrounds. The people of Nagaland have increasingly realised this. They live and work across the country, earning trust and respect everywhere. The peace process must not be stalled because of this incident, or distracted by calls to repeal the AFSPA. On the contrary, this tragedy must act as a nudge to hasten the peace process so as to prevent bloodshed in the future.