Safeguards must be built into AFSPA if it is to stay

In the wake of the horrendous killing by the Army’s para commandos of 14 civilians in Nagaland’s Mon district last Saturday, apparently in a case of mistaken identity when the Army unit had laid an ambush for terrorists, Chief Minister Neiphiu Rio on Tuesday demanded the repeal of the Armed Forces Special Powers Act in his state. The CM’s demand follows a decision of the state cabinet. The Nagaland police had filed a report suggesting that the firing on the civilians was aimed to kill and injure. In his demand for repeal, the Nagaland CM has found support from Meghalaya CM Conrad Sangma.

The totality of circumstances speaks of a state of political and psychological agitation in Nagaland as well as in the wider northeastern part of the country. This itself becomes a negative security factor in a sensitive area. Time has come for the Centre to give careful consideration to the demand being raised while balancing it with the imperatives of security in a border region.

The AFSPA, on the statute book since 1958, has acquired a foul reputation in the northeast as well as in Jammu and Kashmir, areas where it has been applied the most. It provides virtually cent per cent immunity to the armed forces to conduct searches, raids, and shoot to kill, no questions asked. The legislation is meant for “disturbed” areas- meaning states where secessionist violence occurs or is threatened- and was used in Punjab also in the militancy years.

The rationale for it is that the armed forces do need legal protection if they are called in aid of civil society in a state or region where there is active militancy, else they are liable to be hauled up before the courts. The AFSPA is intended to give the military and the paramilitary troops the same cover that the presence and assent of a magistrate does when the police goes into action and is obliged to open fire on civilians.

However, thousands of cases of fake encounters have been alleged over the years. A few have indeed been confirmed by enquiries conducted under Supreme Court direction. The Justice Jeevan Reddy Commission of Inquiry, looking into the application of AFSPA, had concluded that the law symbolised “oppression” for ordinary people and recommended repeal. Subsequently, the second Administrative Reforms Commission under Veerappa Moily also proposed repeal. The UPA government had brought the matter to the stage of consideration by a cabinet sub-committee. However, the Modi government has closed this discussion, presumably adopting only a security-side perspective without regard to popular sentiments in light of complaints of the abuse of the law.

AFSPA is applied directly at the instance of the Centre or on the recommendation of the governor of a state, with an elected state government having no say in the matter. In the rare instance that armed forces personnel have been punished for misuse of AFSPA and taking innocent lives, it has only been under the direction of the Centre, as per the existing law.

The overall national security situation in light of the current state of IndiaChina and India-Pakistan relations makes it imperative that the government take active and demonstrative steps to earn the goodwill of the people living in our border areas. Harsh security measures alone are not sufficient. If the armed forces need legal cover in taking actions that may cost civilian lives, safeguards need to be built in. AFSPA needs to be amended by Parliament. The armed forces of a democratic country cannot behave like an army of occupation.

Time has come for the Centre to give careful consideration to the demand being raised while balancing the Armed Forces Special Powers Act with the imperatives of security in a border region.