AFSPA, a law warranting immediate repeal

The pity is that the statute as well as the forces that were designed for the people of the country unreasonably and unjustly burden them instead
The law had a paradoxical origin, and an equally paradoxical evolution. (Express Illustrations | Soumyadip Sinha_
The law had a paradoxical origin, and an equally paradoxical evolution. (Express Illustrations | Soumyadip Sinha_

The tragedy in Nagaland has shocked the nation’s conscience. The death of 14 civilians and a soldier, on the face of it, was essentially caused by gross intelligence failure. An egregious error in judgement has led to killing of the innocent. The executive excess had a devastating effect, given the irrational immunity provided by the law. The behaviour of the commando unit was instigated and abetted, at least indirectly, by the Armed Forces (Special Powers) Act (AFSPA), 1958, in which lawlessness becomes the law. Such incidents are a culmination of the impunity granted to the Army by the statute. It is unfortunate that the incident might adversely impact the progress that the country has made in  the discourse with the armed rebels in the Northeast.

The law had a paradoxical origin, and an equally paradoxical evolution. The British designed it by way of an ordinance in 1942, as a device to suppress the Quit India Movement and post-Independence, the Parliament enacted it on 11 September 1958. Pandit Nehru justified it as an essential legal tool against those who try to “coerce the governmental authority by organised violence”.

But the history of the law also unfolds the history of crimes committed by the Army on India’s own people. Those were often crimes without punishment. In 1995, a convoy of Rashtriya Rifles with hundreds of jawans shot at the civilians in Kohima city. Seven people were killed and many injured. In 2000, the Malom massacre occurred in Manipur, where 10 civilians were allegedly shot down by a unit of Assam Rifles. Irom Sharmila’s hunger strike began to protest against this brutality, which in turn developed as a crusade against the law as such. In 2004, a woman was raped and murdered, and the men in Assam Rifles were accused of committing the heinous crime. This too led to an unprecedented agitation in which the women expressed their anger and anguish all in one banner, saying “Indian Army, Rape us.”

As such, the law has not been safer in the hands of Assam Rifles, and the indication to the contrary in the analysis in Nagaland ambush reopens old AFSPA wound in Northeast (Dec 10) is contestable.

The Assam Rifles too has a curious origin. It was devised by the British to fight the tribes in the Northeast that raised their voice against the Raj. Strangely, as in the case of the AFSPA, this force too was retained by the government to fight the rebels of the sovereign. Power often speaks the same language. The pity is that the statute as well as the forces that were designed for the people of the country unreasonably and unjustly burden them instead. Extra-Judicial Execution Victim Families Association Manipur (EEVFAM), an organisation formed by the victims of the Army’s atrocities, allege that thousands have been killed in fake encounters during the last few decades in the AFSPA-operated areas. Insurgency always arms the state and in between the insurgent and the state, the rights of citizens get crushed.

The statute has arbitrary contents. For example, Section 3 gives power to the government to declare certain parts of the country as “disturbed areas” and Section 4 allows an officer of the armed forces to “fire upon or otherwise use force, even to the causing of death”, against persons breaking the law or lawful orders, as per the conditions stated in the Act. This power is meant to be used for “the maintenance of public order”. The section also empowers the Army to arrest persons, enter premises and conduct search and seizure without a warrant from any authority. By virtue of Section 6, protection is granted to “persons acting under (the) Act”. The statute does not even require that the acts, to qualify for protection, should be one done in good faith, a rider that the law adopts in several other enactments. The cumulative effect of these provisions creates a kind of military regime in the AFSPA-declared areas. This makes a mockery of the right to life guaranteed by Article 21 of the Constitution.

The Act applies only on declaration that a state or part of it is a “disturbed area”. Thus, the law is selective in its application resulting in blatant geographical discrimination. Tenure of the law is often extended mechanically. At present, the Act applies to Assam, Nagaland, and a good part of Manipur and Arunachal Pradesh, apart from Jammu and Kashmir.

In the Extra-Judicial Execution Victim Families Association vs Union of India (2016), the Supreme Court said that the statute does not provide a “blanket immunity” to the perpetrators if the action is unjustified. The court prescribed a thorough enquiry into “each instance of an alleged extra-judicial killing”. But the fact of the matter is that the complaints by individuals and even the First Information Reports registered by the state police are either discarded or they simply vanish. Though the apex court ruling has a precedential value in the context of pleas for probe or compensation, it is inadequate to prevent the crimes under the guise of law enforcement.

Democracy, after all, is a perpetual process of course correction. An amendment of the law or a cosmetic replacement will not resolve the issue. Technological advancement in recent times also makes the logic of the 1958 statute obsolete. So AFSPA needs to be scrapped altogether. In doing so, the state will only be trying to heal the wounds that the law has mercilessly inflicted on the nation.

Kaleeswaram Raj
Lawyer, Supreme Court of India
(Tweets @KaleeswaramR)

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