A recent incident in Nagaland resulting in the death of 13 civilians and one soldier has been extremely unfortunate. The Indian Army and the central government have accepted it as a result of an error of judgement during a special forces operation and have regretted the incident. The union home minister made a similar statement in Parliament regretting the incident and assuring the citizens of Nagaland and the families of the deceased of an impartial inquiry followed by action against those found guilty. Loss of innocent lives can never be reconciled; however, a prompt acknowledgement of the unfortunate incident and assurance of action are welcome steps. The entire nation stands with the families of the deceased in sharing their pain.
This incident has once again generated a debate on provisions and applicability of the Armed Forces (Special Powers) Act (AFSPA). National security establishment considers AFSPA an absolute necessity to deal with the ever-evolving national security challenges, whereas some NGOs and human rights organisations find it draconian and consider it as State’s tool of abuse, oppression and discrimination. AFSPA is often linked to the armed forces as the name suggests, not realising that AFSPA is an act of Parliament, promulgation of which is decided at the highest level of the government of India.
When is AFSPA Promulgated
It is important to understand the background and provisions of AFSPA before discussing its applicability. AFSPA, enacted by Indian Parliament in 1958, grants special powers to the armed forces to maintain public order in “disturbed areas”, which implies that the Act would be promulgated only when the law and order situation is not normal. This Act was first implemented in Naga Hills, which were then a part of Assam, to tackle one of the most violent insurgencies of that time. The situation in Nagaland is presently peaceful as a result of the ceasefire. AFSPA was later applied in several other states, including some states of the Northeast, Jammu and Kashmir and Punjab. AFSPA was promulgated in Punjab in 1983 to tackle the prevailing law and order situation but was repealed in 1997, which signifies the intent of the government to repeal such an Act when not required.
Over the years, several organisations have demanded repeal of the Act, including Irom Chanu Sharmila who went on a 16-year-long hunger strike (2000 to 2016) asking for repeal of the Act in Manipur. Governments of the day have looked at these demands with all seriousness; however, ground realities and national security concerns hold them back from repealing the Act or making sweeping changes. Several commissions have been set up, including one under the chairmanship of Justice Santosh Hegde in 2013. The Second Administrative Reforms Commission has also commented on this Act besides periodic comments by the Supreme Court of India. Most of them have recommended review of the Act to make it more people-friendly.
Governments apply AFSPA in any part of the country after due deliberation and evaluation of the security situation. The state has responsibility to ensure security of the citizens; while doing so, it must maintain a fine balance between liberties and rights of the citizens vis-a-vis establishment of the rule of law. As per law, state police forces have the power to search individuals/houses, apprehend civilians to investigate or prevent crimes because law and order is the responsibility of the state government. State governments ask for deployment of the Army when they consider the security situation is beyond their capacity to handle and it may endanger lives and property of the citizens or the state.
Northeastern states are small and militants transit from one state to another at will. There is evidence of the NSCN(IM), the major militant group operating in Nagaland, providing training and arms support to militants operating in other Northeastern states, which confirms connivance between various insurgent groups. There is evidence of such support coming from across the Indo-Myanmar border. In view of the inter-state and across the border implications, it may be difficult to accept the demand of two chief ministers to repeal AFSPA in their states without compromising security of India’s Northeast.
The Way Forward
Professional armies are trained primarily to fight the enemies of the country but controlling and policing their own citizens is not a job armies look forward to. Existing provisions of law do not empower Army/armed forces to carry out policing tasks, such as search or apprehension of suspects or criminals. Therefore, promulgation of AFSPA is a prerequisite for deploying the Indian Army for maintenance of law and order. AFSPA enables the Army to perform policing functions and the Act protects them from prosecution while discharging their assigned duties. The Act does not provide blanket protection to the soldiers and there are checks and balances, due to which many officers and soldiers operating in insurgency areas have been prosecuted and punished by the Army in the past for violation of laid-down standing operating procedures.
One important facet of Army’s operations in insurgency areas is to win ‘hearts and minds of the people’. Several development projects and medical camps are undertaken under the Military Civic Action. These projects are often executed using the resources meant for combat and welfare of troops. Formations deployed in counter insurgency consider not just the locals as their brethren but even the insurgents are considered as ‘misguided youth’ to be brought back into the mainstream of society, which exhibits the close relationship the Army maintains with the locals when deployed in counter-insurgency roles.
The way forward in this complex internal security imbroglio would demand the following:
* AFSPA needs an urgent review; a balance between citizens’ rights and demands of national security must form the cornerstone of this review.
* AFSPA must be applied only when extremely necessary and must be reviewed periodically.
* A need for political will at the state level to ensure maintenance of law and order using the state police forces so that there is no need to promulgate AFSPA.
* State governments must be held accountable for prolonged deployment of Army in their state. There must be inbuilt mechanism to address grievances of the citizens in a prompt manner.
The author was head of Army Service Corps. He is a distinguished fellow at United Service Institution of India and a motivational and leadership speaker. The views expressed in this article are those of the author and do not represent the stand of this publication.
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