Opinion Repealing AFSPA will not weaken, only strengthen Constitution

It should not have taken the senseless massacre of 14 civilians and the death of one soldier in Nagaland to remind us that the Armed Forces Special Powers Act (AFSPA) is a constitutional abomination that should have been repealed a long time ago.

The Act grants extraordinarily sweeping powers to the armed forces of search, seizure, arrest, the right to shoot to kill and conduct operations in ways that make a mockery of individual rights and dignity. Admittedly, moral and legal judgment on the conduct of security forces in the face of palpable violence, insurgency and terrorism is a tricky matter and should not be the subject of easy moralising. The physical and psychological costs to the armed forces are immense and they create pressures for providing legal protection. But even if you concede that caveat, there is no denying that AFSPA is a moral abomination, arguably the single biggest legal blot on the Indian state. The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging the brutally dark history of our conduct in Nagaland.

If the moral case for repealing AFSPA is strong, the political case points in the same direction as well. India’s handling of the Naga insurgency has been a mixture of brutal repression, accommodation, betrayal, negotiation and bribery. Despite repeated accords, most recently the supposed framework agreement of 2015, a final political settlement has eluded us. But over the last few years, violence had palpably come down.

The deep scars of violence and memories remain. But there was also a deepening modus vivendi, more acceptance and collaboration with the Indian state, and the emergence in Nagaland of what one of India’s most brilliant anthropologists G Kanato Chophy once called the emergence of “constitutional Indians,” fiercely proud of their traditions but willing to make common constitutional cause with all citizens.

But the lynchpin of this common cause has to be the protection of individual rights and dignity. The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of individual dignity of the Indian Constitution are not extended. These killings will also, inevitably, reopen the unaddressed traumas of past violence.

We often describe AFSPA in terms of a “state of exception”. But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”?

This law does not help prevent secession. It is itself a sign of the Indian state’s permanent “othering” of the Nagas, a way of Delhi saying, “You do not belong to this constitutional settlement.” It is ironically not the Nagas, but the Indian state that has ceded from its own Constitution. Often national security laws such as AFSPA are defended by using the phrase, “the Constitution is not a suicide pact.” It must enable the force that allows order to persist. But it is laws such as AFSPA that signify the suicide of the Constitution.

Even though the Army has officially opposed its repeal, AFSPA has been counterproductive for the Army in three ways.

First, giving wide immunity to the forces can distort the choice of strategy in counter insurgency operations: It leads more to strategies that have more of what Rajesh Rajagopalan, in the context of IPKF operations, called “conventional war bias,” one that often emphasises kills and area domination rather than smarter tactical and political incorporation.

Second, wider immunity can often reduce rather than increase the professionalism of the forces.

Third, we are constantly in the vicious circle that leads to central dominance in a way that undermines both Indian federalism and operational efficiency. Why are not local police and law enforcement agencies adequate for law and order and security? Admittedly, central forces will have more presence in border areas. But the institutional answer we often give is that the states don’t have the capacity. But why don’t they have the capacity? Because we choose to invest more in central forces and armed forces than in local capabilities.

But operationally also, it is easy to imagine that parachuting elite central forces in can be counterproductive. To a hammer, everything looks like a nail. The instrumentality of an elite force can itself dictate the choice of operations. Such operations will often be carried out with less effective local knowledge.

Now it is also true that the states and Centre have been playing this cat and mouse game for decades, where states are quite happy to parcel off responsibility to the Centre. But the blunt truth is that in none of the areas where AFSPA has been in force have the armed forces been able to, through the use of arms, fully root out insurgency even after seventy years.

Technically speaking, it is true that AFSPA does not grant blanket immunity. The Supreme Court laid down guidelines for the use of AFSPA in 1997; and in principle, unprofessional conduct, crimes and atrocities can still be prosecuted. But this will run into two difficulties.

The first is the trust deficit: As the Jeevan Reddy Committee that advocated the repeal of AFSPA pointed out, the accountability mechanisms internal to AFSPA have not worked. In 2017, the Supreme Court, in a case filed by the Extra Judicial Execution Victim Families Association, ordered a probe into 1,528 extra-judicial killings in Manipur. At the least, this order seemed to suggest the problems with AFSPA were systemic. But there have apparently been no hearings in this case for three years. So the idea that accountability will be enforced remains a pipe dream.

But at the heart of AFSPA is a profound mutilation of human empathy. Our discourse is a rather abstract one, balancing concepts of human rights and national security. The balance metaphor itself misleads us on what is at stake; it encourages a blasé suspension of human rights.

AFSPA is not just a law. It creates a whole culture. Think of what it would be like to live under a legal regime, where the state is given such wide powers. The existence of those powers is an affront, and they create a culture of fear, interdiction, humiliation and violence.

It is high time that all parties come together to repeal AFSPA. It will also be in the fitness of things if all parties got together to acknowledge the trauma in Nagaland and elsewhere. This will strengthen, not weaken, the comatose Indian constitutional project.

This column firs appeared in the print edition on December 9, 2021 under the title ‘State against Constitution’. The writer is contributing editor, The Indian Express.