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Explained: Why Nagaland killings have rekindled debate on AFSPA

Nagaland killings: A look back at how AFSPA was enacted, why it is controversial, and how demands for its repeal have grown louder over the years.

An Army soldier stands guard on a highway on the outskirts of Kohima, capital of Nagaland, on Sunday, Dec. 5, 2021. (AP Photo/Yirmiyan Arthur)

The recent killings of civilians by security forces in a case of alleged mistaken identity in Nagaland has once again rekindled the debate over the Armed Forces Special Powers Act (AFSPA), a law that gives enormous discretionary powers to the armed forces over a civilian population.

Addressing reporters after attending the funeral services of the civilians at Oting in Nagaland’s Mon district, Chief Minister Neiphiu Rio said he has urged the Centre to remove AFSPA from Nagaland as the law is a “black spot on the image of the country”.

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Saying that he was deeply saddened by the loss of lives in Oting village, Meghalaya Chief Minister Conrad Sangma has also demanded the repeal of AFSPA in the aftermath of the killings in Nagaland. Sangma is also the president of the National People’s Party, which is a part of the NDA.

AIMIM MP Asaduddin Owaisi and Congress leader Pradyut Bordoloi have also raised questions over the law.

A look back at how AFSPA was enacted, why it is controversial, and how demands for its repeal have grown louder over the years.

Bodies of the deceased reach their village. (Express Photo: Tora Agarwala)

What is AFSPA?

AFSPA gives armed forces special powers to control “disturbed areas”, which are designated by the government when it is of the opinion that a region is in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is necessary.

Under its provisions, the armed forces have been empowered to open fire, enter and search without warrant, and arrest any person who has committed a cognisable offence, all while having immunity from being prosecuted.

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Where is AFSPA in effect now?

AFSPA can be implemented in an area after it has been declared as “disturbed”.

The power to declare a territory “disturbed” initially lay with the states, but passed to the Centre in 1972. Section 3 of AFSPA (in J&K) says that an area can be declared disturbed if it is the “opinion of the Governor of the state or the central government” which “makes the use of armed forces in aid of the civil power necessary”.

Currently, AFSPA is in effect in Jammu and Kashmir, Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh.

The law has been repealed where insurgencies have subsided, and when governments have gained confidence of managing the region using the police force. Thus, AFSPA was repealed in Tripura in 2015, and in 2018 the Centre also removed Meghalaya from the list, while also restricting its use in Arunachal Pradesh.

When was AFSPA enacted?

The law is based on the Armed Forces (Special Powers) Ordinance of 1942, which was issued during the Quit India movement.

Enacted by Parliament on September 11, 1958, AFSPA was first implemented in the Northeast, and then in Punjab.

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”.

The Bill was passed without an amendment amid fierce opposition in the Lok Sabha.

Replying to a debate in the Rajya Sabha, the then Prime Minister Jawaharlal Nehru defended the law, saying, “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.”

So, why is the law controversial?

AFSPA has often been criticised as a “draconian Act” for the unbridled power it gives to the armed forces and the impunity that security personnel enjoy for their actions taken under the law.

Under AFSPA, the “armed forces” may shoot to kill or destroy a building on mere suspicion. A non-commissioned officer or anyone of equivalent rank and above may use force based on opinion and suspicion, to arrest without warrant, or to kill. He can fire at anyone carrying anything that may be used as a weapon, with only “such due warning as he may consider necessary”.

Once AFSPA is implemented, “no prosecution… shall be instituted except with the previous sanction of the central government, in respect of anything done or purported to be done” under this Act.

The Jeevan Reddy Committee formed in 2004 had recommended a complete repeal of the law. “The Act is a symbol of hate, oppression and an instrument of high handedness,” the body said.

An Indian Army convoy travels through Kohima on Sunday. (Photo: AP)

How has AFSPA been received by the people?

Irom Sharmila, known as the Iron lady of Manipur, has been a towering figure who is well-known for her 16-year-long hunger strike against AFSPA.

In November 2000, when Irom was 28-years-old, 10 civilians were allegedly gunned down by the 8th Assam Rifles at Malom Makha Leikai, near Imphal’s Tulihal airport. The infamous incident is commonly known as the ‘Malom massacre’. The massacre prompted Irom to begin a hunger strike against the atrocities in Malom, which later developed into a prolonged hunger strike against the AFSPA.

Three days after she began her fast, Irom was arrested for “attempting suicide”. Thereafter, her hunger strike against AFSPA continued for 16 years. During this time, she was often force-fed through a Ryles tube. Irom ended her hunger strike on August 9, 2016.

AFSPA was withdrawn from the Imphal Municipal Area in 2004 after several civil society campaigns — the hunger strike by Irom Sharmila being the most high-profile of them — and public mobilisations in Manipur.

Over the years, Manipur has witnessed many protests against alleged extrajudicial killings by the armed forces. There was a huge backlash across the state in 2004 when the bullet-ridden body of Thangjam Manorama, who was raped and murdered, allegedly by a group of Assam Rifles men, was found at Bamon Kampu village in Imphal East district.

The incident led to widespread protests in Manipur and the rest of India. On July 15, around 30 Manipuri women marched naked in Imphal city with a banner that read: “Indian Army Rape us”. On July 24, five young men tried immolating themselves in front of the CM’s office.

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What has Supreme Court said about AFSPA?

In 2016, the Supreme Court delivered a stinging rebuke to the government over the continuation of AFSPA. The SC judgment clarified that the notion that the Act provides a free hand to security forces is flawed.

Ruling on a petition filed by the Extra Judicial Execution Victims Families Association (EEVFAM), a representative platform of people in Manipur whose kin have allegedly been killed by security forces, the Court held that due process needs to be followed in civilian complaints reported from areas under the AFSPA and that the Act doesn’t provide blanket immunity to army personnel in anti-insurgency operations. The continuance of the Act in any region for extended periods symbolises, according to the apex court, “failure of the civil administration and the armed forces”.

The apex court also ruled that over 1,500 cases of alleged fake encounters in Manipur, over the last 20 years, “must be investigated”.

EEVFAM has alleged that since the 1970s, there have been 1,528 fake encounters in Manipur. Human rights activists blame AFSPA for the killings, alleging that the law gives blanket protection to the Army and the Manipuri commandos to kill with impunity. They also allege that these are just the recorded cases and that instances of people simply disappearing have gone unreported over the years.