JOIN USThe Armed Forces Special Powers Act (AFSPA) of 1958 was introduced to quell the Naga rebellion which was seeking independence of the Naga inhabited areas from India. The Nagas had raised their demand for freedom with Mahatma Gandhi and secretary-general of the National Socialist Council of Nagaland Thuingaleng Muivah, and continue to insist on Naga sovereignty now even after signing a framework agreement with the Central government.
If Nagaland has witnessed relative peace since July 1997, it is not because of AFSPA but because of a political dialogue with the Naga insurgent groups, increased cooperation from neighbouring Bangladesh and Myanmar, changed global perspectives vis-à-vis armed insurgency in the post September 11 period and virtual end of romanticism with insurgency, which was accelerated by globalisation. In all the states where AFSPA has been imposed, the problems are political in nature and they require a political solution. Yet, in the jingoistic discourse, the root cause of insurgency and the tectonic shift that has taken place in the last two decades, are consistently overlooked.
The prevailing situation in Jammu & Kashmir following the killing of Hizb-ul-Mujahideen poster boy Burhan Wani explains the limits of interventions by the army under AFSPA. The army and other armed forces are no longer involved in counter-insurgency operations that the Kashmir Valley had witnessed from 1990 to 2010. Yet, the response of the army has been typical: treat every person as a potential threat and make no distinction between the combatants and non-combatants. The results have been deadly, clashes between the security forces and locals have claimed more than 30 lives so far with hundreds injured after Wani’s encounter.
Indeed, AFSPA originates from the Armed Forces (Special Powers) Ordinance promulgated by the British on August 15, 1942, to suppress the “Quit India Movement”. Independent India went a step further and authorised non-commissioned officers to fire upon or otherwise use force, even to cause death, prohibiting the assembly of five or more people without any distinction between combatants and non-combatants as per Section 4(a) of AFSPA. This has allowed the army to resort to extrajudicial killings with impunity.
The true picture of extrajudicial executions under AFSPA is unlikely to be found despite reference to the right to know the truth by the Supreme Court judges in their interim judgment of July 8, 2016, in Extra Judicial Execution Victim Families Association vs Union of India case. As per the Annual Reports of the Ministry of Home Affairs, between 2004-2005 and 2013-2014, security forces killed 9,246 “terrorists” with 4,005 in Jammu & Kashmir and 3,650 in the Northeast. Not surprisingly, AFSPA is the only issue that unites “ethnicity conscious” people of the Northeast.
This interim judgment is a step in the right direction but it is unlikely to bring an end to the extrajudicial executions under AFSPA. As the judgment in its first para states, the writ petition filed raises important and fundamental questions of human rights violations, not in the context of the accused, but in the context of the victims. The National Human Rights Commission (NHRC) seldom investigates the cases on its own and it often relies upon the authorities.
In the case of the armed forces, the NHRC cannot do anything but only seek report from the authorities under Section 19 of the Human Rights Protection Act. The conclusions drawn by Justice Santosh Hedge in six cases relating to the extrajudicial executions of Mohd Azad Khan, Khumbongmayum Orsonjit, Nameirakpam Gobind Meitei and Nameirakpam Nobo Meitei, Elangbam Kiranjit Singh, Chongtham Umakanta and Akoijam Priyobrata alias Bochou Singh were based on the conclusions of the NHRC. The possibility to fix criminal liability in these cases is almost nil.
Finding alternatives
The interim judgment is a stark reminder on the need for finding an alternative to AFSPA. The BJP and the Sangh Parivar have so far toed the army line on the indispensability of AFSPA for India’s national security. This position is counterproductive. There is no doubt that insurgency is a reality and the Central government ought to take necessary measures, but AFSPA is not the solution and indeed without legal basis, irrespective of the 1997 judgment of the Supreme Court upholding its constitutional validity in the Naga Peoples Movement for Human Rights vs Union of India case.
Entry 2A of the Union List in the Constitution relating to “deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any state in aid of the civil power, jurisdiction, privileges and liabilities of the members of such forces while on such deployment” can hardly be the basis to impose Emergency and snatch away law and order functions from state governments.
If the Centre is serious, it ought to amend the Constitution to define under what circumstances the federal armed forces can be deployed, the time period for such deployment and its review by Parliament considering that law and order is a State subject.
The continuation of AFSPA in the current format is problematic. It shows that the Centre has no problem in undermining Parliament with respect to law and order situation of the states where AFSPA is imposed. Further, the army’s veto on the amendment of AFSPA raises serious questions about the civilian control over the army. The Act would not have survived if it was imposed in any major state with necessary electoral influence. Therefore, New Delhi ought to end its stepmotherly treatment of the peripheries and realise that there is no alternative to a political solution.
(The writer is a New Delhi-based human rights expert)