Is the Armed Forces (Special Powers) Act past its expiry date?

The final solution to insurgency or terrorism is not military in nature; it is political and economical

Mon: Relatives and locals pay last tributes to the 13 people who were allegedly killed by Armed Forces, in Mon district, Monday, Dec. 6, 2021. (PTI Photo)(PTI12_06_2021_000162B)

The recent killing of 14 civilians in Nagaland’s Mon district by the Indian armed forces has put the spotlight back on the efficacy of the Armed Forces (Special Powers) Act (AFSPA) of 1958. If its raison d’etre was to quell militancy and make way for the peaceful integration of insurgency-hit regions, has it served its purpose? In a conversation moderated by S. Anandan , Patricia Mukhim and Major General (retd.) Gajinder Singh discuss the moral, legal and political questions pertaining to the controversial legislation and its impact. Edited excerpts:

The Santosh Hegde Committee, appointed by the Supreme Court to look into six of the 1,528 alleged extrajudicial killings in Manipur, noted in its report in 2013 that the “continuous use of the AFSPA for decades in Manipur has evidently had little or no effect on the situation”. Has the Act been counterproductive?

Patricia Mukhim: It is evident that the Act has not succeeded in its mission of containing insurgents because even today in Manipur, there are 32 active militant outfits. In Nagaland, because of the peace talks, most of the outfits have come under one umbrella, the NSCN(I-M) [National Socialist Council of Nagaland (Isak-Muivah)], which is very ambiguous in its demands.

 

The Supreme Court said that a grave situation of law and order must occur for a region to be declared a ‘disturbed area’ and that Section 3 of the AFSPA cannot be construed as conferring power to issue a declaration without any time limit. The Disturbed Areas Act is reviewed every six months because without it in place, you cannot have the AFSPA. In 2015, the Tripura Chief Minister, Manik Sarkar, cited a drop in militancy to revoke the Disturbed Areas Act, with which the AFSPA too went away.

The AFSPA is a colonial law which hangs over our heads like the Sword of Damocles. It must go as it is prone to abuse and also shows that the country cannot come up with an anti-insurgency or a counter-insurgency force. When you use the Army against your own people, you are actually abusing the Army because it is trained to fight the enemy, not its own people.

Gajinder Singh: The normalisation of the situation in many parts of the country — be it in Mizoram; Tripura; the Cachar Hills of Assam; the Tirap, Changlang and Logding districts of Arunachal Pradesh; or areas south of the Pir Panjal in Jammu and Kashmir — was made possible by the armed forces. In fact, the removal of the AFSPA from Tripura is testimony to what the forces have been able to achieve. They couldn’t have done this without the legal provision for their deployment in counter-insurgency areas.

 

However, I would say that the final solution to insurgency or terrorism is not military in nature; it is political and economical. The Army has normalised the situation many times in J&K and the Northeast. But the State governments, and to a certain extent the Central government, have not been able to carry forward the political process.

Three Chief Ministers in the Northeast have now demanded that the Act be repealed. Many a time, the Centre undermined federalism by refusing to listen to the States, while on occasions, the States themselves have wanted the Act to stay. So, is AFSPA being used more as a political tool?

Patricia Mukhim: Perhaps what is needed is a referendum on the AFSPA because the State governments and the Centre are playing football with it. As I said earlier, when Mr. Sarkar revoked the Disturbed Areas Act, the AFSPA automatically went away. Why are the other State governments not doing the same? In 1958, the nation-building process was at its nascent stage and the country was in no position to understand its periphery. So, to have the military bring in a certain degree of law and order in a conflict situation for a short period would have been forgiven. But the Act is not meant to continue forever. It is ethically, morally and legally wrong. Perhaps it’s time for the people to rally under a common platform and go to Jantar Mantar to voice their views. It’s difficult for the entire Northeast to come together, as every State has got a border problem with Assam. It would also depend on the ruling dispensation in each State. But politics apart, you have to show that you mean business. Otherwise, this will become another dead issue before long.

 

Gajinder Singh: The prolonged deployment of the armed forces for internal security duties is not desirable. No one wants to be fighting their own people. The State governments must review the security situation and see if they need the presence of the Army and the Assam Rifles in their States. They need to see if their police forces are capable of handling the situation. If they don’t feel the need to have the Army or the Assam Rifles, they should ask for the withdrawal of these forces. The AFSPA is just a tool; it’s a legal provision for the Army to operate in these areas. However, we would want the State police forces to be enabled to control the situation on their own. The Army should be preparing all the time for war against external aggression.

Lt. Gen. (retd) D.S. Hooda in 2018 said it would perhaps be better to replace the AFSPA with a more humane, acceptable legislation, which would also provide better legal protection to the soldiers in counter-insurgency areas.

Gajinder Singh: I’m not aware of what he said. But notwithstanding that, many people have demanded its repeal. Some feel that there’s a need to modify this Act, while some others think it should be replaced with something else. The Jeevan Reddy Committee, the J.S. Verma Committee, and the Second Administrative Reforms Commission have all commented along these lines. Having served in these areas for a very long time, I think the Act can be amended to make it more humane. But repealing it or replacing it in full is not going to work if the armed forces are to operate in these areas.

 

It is actually an issue of perceptions. Data do not actually support the bad opinion about the AFSPA. On many occasions, the Supreme Court has upheld its legality and endorsed the dos and don’ts which were laid out by the Army headquarters. And at the ground level, the commanders and the soldiers are sensitive and know that they are operating against their own people.

But is there any mechanism for accountability? The AFSPA grants blanket immunity to the forces. Further, the Government of India (GoI) has reportedly denied permission to prosecute any armed forces personnel in cases of alleged fake encounters investigated by the CBI.

Patricia Mukhim: There isn’t any mechanism at the moment because the GoI also has its hands tied. If it uses the Army, it cannot disable the Army by diluting the Act in some way. And the Army will not want to operate in that kind of situation. But why is the Army not used in the Maoist-affected areas? There too people and uniformed personnel are killed. Are the people of the Northeast and J&K not India’s own people that they have to be fought with the Army?

 

Gajinder Singh: Having served in the Northeast for seven tenures, I can say that there cannot be a more wrong assumption. The Northeast is very close to the hearts of the people of the rest of India, especially people like me.

There’s an argument that the continuous enforcement of the AFSPA has derailed the peace process, involving the NSCN (I-M) in this case, with large sections of the people disenchanted that they have been kept out of the process.

Patricia Mukhim: The NSCN(I-M) could have demanded revocation of the Act as a prerequisite for the peace talks back in 1997 itself when it became a party to it. It’s only now that it is jumping on the bandwagon, clamouring for the Act’s repeal.

In Nagaland, the people are traumatised because they are caught between the state and non-state forces. The non-state forces extort money from businesses, entrepreneurs, the government, government employees. Even development funds are being shared with militant outfits. So, there’s a total absence of law and order in these States. For instance, we don’t have an opposition any longer in the Nagaland Assembly. All the 60 MLAs have joined the government on the plea that they will ensure the culmination of the 25-year-old peace process. But that’s not happening.

 

How does the NSCN(I-M)’s demand for a flag and a separate Constitution work in the Naga-inhabited areas of Manipur which have given up the demand for sovereignty? The GoI is very clear that it is not going to allow any territorial rearrangement. But by demanding a flag and a Constitution, the NSCN(I-M) wants the peace talks to go on unresolved.

Gajinder Singh: The law-and-order situation is really bad in these States. There are large numbers of highly indoctrinated, seditious, violent elements who are lured by money and the gun culture. They go about collecting ‘taxes’ on everything, and the police and the local administration are quite ineffective. In most of these disturbed areas, there’s a communal, tribal, ethnic divide that makes the local police partisan as well. It is the Army or the Central police force that restores some degree of law and order in these places.

As for the NSCN(I-M), it uses the ceasefire in Nagaland to keep moving around. It has no reason to conclude the peace process. But it’s not just them; there are many splinter groups that carry out extortion. So, the forces have to intervene.

Are civil society organisations coming together to raise the issues with the Centre?

Patricia Mukhim: The Nagaland Gaon Bura Association, with representation from all 16 tribes of Nagaland, had written to the Prime Minister and the Union Home Minister asking them to conclude the deal on what had been agreed with the NSCN(I-M). But the Centre did not respond.

You have put the people of Nagaland in a situation where they are in no position to speak up, because speaking up has consequences. At least, thankfully now, because of social media which offers anonymity, they are able to express themselves.

How do people lead a normal life in the shadow of the gun?

Patricia Mukhim: When some things happen over a long period, they become part of your culture. You learn to live with it, although you are unhappy. You have a government that is held hostage by the NSCN(I-M). On the other side, you have people with guns. The situation is the same in Assam and parts of Arunachal Pradesh. This problem is compounded by the 16-km free movement zone on either side of the 1,643-km India-Myanmar border. It aids the smuggling of arms and drugs and the movement of militants. Shouldn’t there be a stricter border regime?

Gajinder Singh: The presence of the armed forces in these States is not so formidable as to be intimidating. If anything, it has only positively impacted people’s lives. Barring a few undesirable incidents, which get investigated, people’s daily lives are unaffected. And the situation along the India-Myanmar border is much better now with the use of technology, communication and the forward movement of Assam Rifles posts.

Major General (retd) Gajinder Singh commanded a Mountain Division in the Northeast; Patricia Mukhim is Editor, The Shillong Times