AFSPA: Should it be repealed?

Bishaldeep Kakati (Advocate, Gauhati High Court. E mail: deep.kakati99@gmail.com) & Sanjib Sarma (Socio-Political Commentator)

After the massacre that took place in Nagaland's Mon district, where the army's para commandos shot 14 civilians, the validity of the controversial AFSPA or Armed Forces Special Powers Act has again come into question. With many people including the honourable Chief Minister of Meghalaya demanding a repeal of the said Act, it's time for the people to know and decide: whether or not the Act is actually required in the modern era?

In order to understand AFSPA, it is important for us to know Section 3 of the Act. The particular section basically forwards the concept that if in any relation to any state the Governor of that State or the administrator of the Union territory or the Central Government is of the opinion that the whole or any part of such State or Union Territory is in a disturbed or dangerous condition that the use of the armed forces in aid of the civil power is necessary, then the appropriate authority may declare the whole or some part of a State or a Union Territory to be a disturbed area. Hence to bring back order in areas tagged as 'disturbed', AFSPA provides 'extraordinary powers' and 'legal immunity' to the armed forces. Some of the extraordinary powers include open firing upon anyone who breaks the law or is against law and order after giving due warning, arresting anyone without warrant who has committed a cognizable offence or against whom reasonable suspicion lies, or entering and searching any premises without warrant etc according to Section 4 of the Act. And 'legal immunity in the sense that "no prosecution, suit or other legal proceedings 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." (Section 6 of the Act).

The origin of AFSPA can be traced to the period of colonial rule in India. It was first brought into the context on the backdrop of the Quit India Movement of 1942. Post Independence, the then Prime Minister of India, Jawaharlal Nehru decided to continue the law in view of the insurgency issues lingering in Assam and Manipur. Thereafter, on May 22, 1958, the then President Dr Rajendra Prasad promulgated The Armed Forces (Assam and Manipur) Special Powers Ordinance.

The AFSPA was introduced to counter-insurgency but in recent times it has come to question because of Human rights abuses by Indian coercive forces in the Northeastern region that can be recurrently traced to from immunity granted to Indian security forces under the Armed Forces (Special Powers) Act (AFSPA), 1958. In fact, to contain the insurgents and support that sustains insurgency, military and paramilitary forces many a time indulges in extra-judicial executions, custodial deaths, custodial disappearance, torture and rape. One of the infamous counter-insurgency operations inflicted by state coercive force occurred on 2nd November 2000, in Malom, a town of Imphal Valley of Manipur, where ten civilians were shot and killed by the Assam Rifles. The incident came to be known as the "Malom Massacre". It was in this backdrop that iron lady Irom Sharmila began a hunger strike on 2nd November 2000. Her demand was the complete repeal of the AFSPA which had been a major cause of human rights abuse inducted by the apparatus. It is important to mention here that insurgency in North-East India has an ethnic component; in 2020 and recently we have lost a few battalions of Assam Rifles in Manipur. It is ironic to see that the Indian Security Forces trying to bring 'Peace' in the region through 'violence'.

The AFSPA provides absolute powers to the security personnel without being accounted for. This leads to various atrocities and human rights violations by security agencies. Critics say that the undemocratic Act has failed to contain terrorism and restore normalcy in disturbed areas, as the number of armed groups has gone up after the ACT was established. Many even hold it responsible for the spiralling violence in areas it is in force. The Justice Jeevan Reddy Committee was set up in 2005 to review AFSPA and make recommendations. It recommended that AFSPA should be repealed and the Unlawful Activities Protection Act be strengthened to fight militancy. It has been a controversial one, with human rights groups opposing it as being aggressive.

In this context, it is important to understand the current scenario of insurgency in the northeast as well. Reports of recent years have actually shown a drastic reduction in the number of insurgency-related incidents in the Northeast, and many insurgent groups or individuals have either surrendered or have shown their interest in peace talks. And in such a situation, it is important for the government to take into consideration AFSPA on one hand and the abuse of human rights that have been witnessed because of AFSPA on the other hand.

The AFSPA indeed sounds like awarding the 'Right to Kill' to our armed forces. But it is the contents of the Act that are actually flawed and misty. Firstly, it makes no distinction between a peaceful gathering of five or more people and a berserk mob. So, even innocents – who have no role in creating a situation that results in that region being called 'disturbed', also come under the purview of the law. The law also states that "no prosecution can be initiated against an officer without the previous sanction of the Central government". Purportedly, the logic behind the inclusion of this section is, to protect the officers from frivolous and misguided allegations.

Therefore, repeal of APSPA can seriously be thought about, but people still have to be mindful of the fact that insurgency hasn't been still completely eradicated from the northeast, which makes AFSPA essential but with certain important and rational amendments especially in terms of providing absolute powers and immunity to the armed forces. The region of the Northeast should bloom not only with an insurgency-free region but also as a region that uploads the spirit of human rights.

Accordingly, in contrast to AFSPA, it has become imperative to bring this problem of insurgency and counter-insurgency to the peace table where dialogue instead of violence can be a tool for addressing the grievances of the insurgent group and bringing back human security and peace in the region.