Amidst a chorus of demands for revocation of the Armed Forces Special Powers Act, 1958, in the wake of the botched Oting ambush in Nagaland by the Army killing 14 civilians, the Centre has decided to extend the promulgation of the controversial law in the state for another six months. The Act can be extended only in areas declared disturbed and this status can only be for six months at a time, indicating AFSPA was meant as an emergency measure, not a permanent remedy. The fact that this emergency has lasted for 64 years is itself an indication of something seriously wrong in the Act’s effectiveness.
Before going any deeper, it needs to be clarified at the very start that AFSPA and the Indian Army are not synonymous. Therefore the general revulsion for this Act in the Northeast is not tantamount to an equal dislike for the Army. In fact, the Northeast’s contribution to the Army at both the officer and soldier level is substantial. This clarification is essential, for often there is a tendency to see, nudged by those who would benefit from a flawed public vision on the matter, that all questioning of AFSPA is a challenge to the Army and Indian nationalism, preventing any rational debates or soul-searching.
The Act allows the Army to be assigned the civil duty of internal law-and-order upkeep, in particular fighting armed insurgencies. This would have been fine and in tune with the argument that extraordinary situations demand extraordinary responses, but AFSPA does much more. It gives the Army sweeping powers, including to enter and search homes without warrant; use force to the extent of causing death on mere suspicion; and to destroy structures (homes) again on suspicion these are hideouts. The dangers of misuse of these extraordinary powers should be obvious.
But AFSPA has one more attribute to deserve the epithet draconian. Its seventh and last clause spells out the legal shield provided to Army personnel charged with misconduct during operations. There can therefore be no legal persecution of such personnel except with prior permission of the Union government. This sanction has seldom ever come as journalist Praveen Swami found out and wrote in a 2012 article in the case of Kashmir. According to the report, 42 prosecution requests by the state police in four years were all turned down by the Union government. The Northeast states have more or less internalised this as an unwritten precondition and now seldom seek such sanctions.
The arrogance of this unchecked power and the helplessness of those who are at the receiving end has led to a grotesque climate of impunity, so much so that even the local police who are not covered by the Act at times begin assuming they enjoy the same legal shield. For instance, in Manipur in 2004, after widespread outrage following a case of rape and murder of a woman “suspect” in the custody of Assam Rifles, AFSPA was lifted from the Imphal municipal area as a means to pacify the public.
A special police commando force took charge of the city, and thereafter cases of fake encounter killings rose rather than subsided, and along with it was also a rise in police gallantry awards. The difference however is this killing spree was put to a halt after a challenge in the court following the daylight custodial murder of another “suspect” in the heart of Imphal city in July 2009, exposed by a now defunct magazine through a sequence of photographic evidences of the incident.
There has been relative calm ever since. But no, this calm has nothing to do with any government effort at conflict resolution but is ironically the result of the judiciary’s message that the limits of law cannot be transgressed under any circumstance. Despite the calm, nobody also has any doubt that insurgency has been put to rest and efforts to do so must continue.
There are two important lessons from this. One, if the Army’s firepower and therefore AFSPA is still felt essential, let the last clause of the Act, which provides a legal shield to even personnel who go beyond their brief, be removed. As witnessed in Manipur, the courts must remain the checking mechanism against any misuse of the powers given by AFSPA.
Two, it has been argued that the Army being dragged into civil lawsuits can be demoralising for the institution. Point taken, but this should only mean that the responsibility of tackling radical civil unrests—which insurgency is—should now be handled by the police, which is accountable to civil law. Modernise police equipment and training fit to purpose and leave the Army to defend the nation against external aggressions. This incidentally was also the outlook of the late supercop K P S Gill.
If the reluctance to do this is about a lack of trust in the loyalty of local police, that would translate as doubting the very nationhood of India as a voluntary union. Perhaps it would be relevant to note here that at least in the Northeast, there are no protests when insurgents or soldiers are killed in actual encounters, though people are sad at the violence and loss of life. It is only when innocent people become the senseless targets, as in the Oting case, that people rise in outrage.
There is one more important point to note. In its entire length, AFSPA makes no mention of rape or theft, two very common allegations, but the climate of impunity is such that these crimes are also generally deemed covered by the Act. This being so, if AFSPA must continue, it must also be made specific that these crimes are open to civil lawsuits.
Pradip Phanjoubam
Editor of Imphal Review of Arts and Politics
(phanjoubam@gmail.com)