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Tuesday, July 27, 2021

Impunity, immunity: continuing debate around AFSPA

The Supreme Court pointed out, keeping AFSPA indefinitely defeats the purpose of what is essentially an emergency provision.

Written by Sushant Singh |
August 1, 2016 1:29:55 am
manipur, AFSPA, supreme court, manipur AFSPA, Irom Sharmila Chanu, irom sharmila manipur, irom sharmila 16 years fasting, Armed Forces Special Powers Act,  Naga insurgency, kashmir afspa, nagaland afspa, india news, latest news AFSPA was envisaged to allow the Army to undertake military operations in good faith, without being subject to harassment of mala fide litigation in local courts. (Source: Express photo by Deepak Shijagurumayum/ file)

Early Last month, the Supreme Court delivered a stinging rebuke to the government over the continuation of the Armed Forces (Special Powers) Act (AFSPA) in Manipur. On July 26, Irom Sharmila Chanu, face of the popular protest against AFSPA, announced she would end her nearly 16-year fast to join electoral politics. Meanwhile, huge public protests in Kashmir following the killing of militant Burhan Wani, and the response of the security forces, has again sharpened the debate around the deployment of the Army in strife-torn areas.

The debate around AFSPA is, in fact, as old as the law itself, waxing and waning periodically through the many decades that it has been around in the country.

On August 18, 1958, the Bill on measures to battle the Naga insurgency in the then state of Assam was introduced in Lok Sabha, and debated for two hours. Discussions followed in Rajya Sabha on the 25th, 27th and 28th of the same month. Home Minister Govind Ballabh Pant called the proposed law “a very simple measure” to control the “misguided Nagas indulging in mischievous activities”. The law was needed, he argued, as it was not feasible, “over such a vast area to depute civil magistrates to accompany the armed forces wherever there may be trouble, because (it) happens unexpectedly”.

Although the Bill was passed without any amendment, the opposition in Lok Sabha was fierce. Surendra Mohanty of Gantantra Parishad told the government, “What I am trying to submit is that this is martial law. If anybody analyses this Bill, one will find that it seeks to indemnify any person for any act done for quelling disturbance in an area declared so by either the Governor of Assam or the Chief Commissioner of Manipur within their jurisdiction. We want a free India. But we do not want a free India with barbed wires and concentration camps, where havaldars can shoot at sight any man. If that is the concept of free India, I think I may as well be a traitor.”

Ten days later, Prime Minister Jawaharlal Nehru replied to the debate in Rajya Sabha, arguing: “No infirm government can function anywhere. Where there is violence it has to be dealt with by government, whatever the reason for it may be; because otherwise you drift; the country drifts into, if I may use the word, Fascist methods, all groups, private groups and others, indulging in violence and trying to coerce the governmental authority by organized violence.”

The Bill was passed, and AFSPA has not been lifted in Nagaland since. It has also been imposed in other parts of the Northeast, in Punjab and in Jammu and Kashmir. The law, based on the Armed Forces (Special Powers) Ordinance of 1942, issued during the Quit India movement, ironically on August 15, allows Army personnel down to non-commissioned officers — the colonial ordinance gave that power to an officer of the rank of Captain — to use force after giving due warning “even to the causing of death”, if they are convinced that it is necessary to do so for the “maintenance of public order”. It also grants soldiers executive powers to enter premises, search and arrest without a warrant.

Action taken “in the line of duty” cannot be prosecuted in civilian courts unless sanctioned by the central government. Such sanction, critics of the law point out, has not been granted by the central government so far in Kashmir. The CBI chargesheet in the 2000 Pathribal fake encounter case named five Army officers. The central government never gave sanction for their prosecution. The matter went to the Supreme Court, where the Army agreed to a court-martial. The court-martial did not find the officers guilty.

AFSPA was envisaged to allow the Army to undertake military operations in good faith, without being subject to harassment of mala fide litigation in local courts. It was not meant to confer impunity on the Army. Not just human rights organisations, numerous political leaders and judicial commissions too have questioned AFSPA. And now, the country’s top court has spoken.

But the military has argued that fighting an insurgency without AFSPA would be akin to boxing with “a hand tied behind the back”. This phrase was used earlier in the 1950s when Nehru disallowed the use of air power and heavy weaponry (artillery guns) in Nagaland. But the Army adapted its tactics to this requirement — and now holds up the non-use of aircraft and artillery in contrast to their indiscriminate use by western militaries like the US in Afghanistan, or by Pakistan in the tribal areas and Balochistan.

Some senior military officers have argued that without AFSPA, the Army cannot undertake counter-insurgency operations — a dirty job which it has to do only because the police and central police forces aren’t up to doing it. But in the Indian system of democratic polity, that is a call for the civilian leadership to take. Also, those supporters of AFSPA who cite the indiscriminate use of violence by terrorists to argue against imposing restrictions on soldiers probably do India’s professional Army great injustice. The Indian Army takes pride in holding itself to the highest standards of moral conduct, which is steeped in the democratic ethos of the society.

Finally, as the Supreme Court pointed out, keeping AFSPA indefinitely defeats the purpose of what is essentially an emergency provision. When the law and order machinery has broken down and the state is under President’s Rule, AFSPA may be understandable. But at other times, the presence of the Army, which comes under the Defence Ministry, often undermines the elected state government, and complicates the political process.

As India has successfully demonstrated in Mizoram, Tripura and Punjab, the final solution to any insurgency would have to be political. As Nehru wrote to the Chief Minister of Assam, Bishnuram Medhi, in 1956, “We have always to remember that the real solution will require a political approach and an attempt to make the Nagas feel that we are friendly to them and that they can be at home in India.”

Replace Nagas with Kashmiris, and the quote, 60 years on, still works.

 

sushant.singh@expressindia.com

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