After the Partition violence of 1947, armed forces were deployed in large areas of the country over long periods. Laws formulated and implemented in the conflict-affected States of Punjab and West Bengal gave special powers to the Army to use force, by even non-commissioned officers, to the extent of causing death; search premises without warrant; and rescue persons with immunity from prosecution.
A similar law was implemented in Nagaland after 1947 in the wake of the demand for independence by a section of Nagas. It was originally named the Armed Forces (Assam and Manipur) Special Powers Act, 1958. Two minor amendments later, it became the Armed Forces (Special Powers) Act, 1958 or AFSPA. Its immediate predecessor was the Assam Disturbed Areas Act, 1955, which had been used to meet the Naga insurgency within the undivided State of Assam.
History of the law
This piece of State legislation was followed in 1958 by a Central law seeking to deal with disturbed conditions in the Naga-inhabited areas of Manipur. The Assam Act of 1955 is a ‘living’ piece of legislation based on the ‘guidelines’ set by a 1942 ordinance of the colonial government and is periodically renewed.
The colonial law was replicated later at the initiative of Prime Minister Jawaharlal Nehru and Assam Chief Minister Bishnu Ram Medhi. When the AFSPA was passed in Parliament in 1958, the only dissenter was Birsa Munda, a tribal member from Bihar. The Naga-inhabited areas in the Ukhrul district of Manipur were notified as ‘disturbed’; this description was later extended to other Naga-inhabited areas. Entire Manipur came under its purview on September 18, 1981, when unrest increased in the Imphal valley during 1979-80. The law was expected to be in force only for a year, but the Naga insurgency continued.
After the 1962 border conflict with China and the rebellion in the Mizo areas and unrest in other areas in the north-eastern region, the law remained in place. It now applies to any ‘disturbed area’ in the region. Some parts of the Imphal Municipal area in Manipur were exempted in 2004.
Significantly, Section 4a of the AFSPA allows “any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces” to fire “even to the causing of death” upon any person acting in contravention of any law or order, any person carrying weapons or anything capable of being used as a weapon, and to prohibit the assembly of more than five people.
Section 4c of the Act allows armed police personnel to arrest without warrant and with any necessary force “any person who has committed a cognizable offence”.
Section 4d allows armed forces personnel to “enter and search premises without warrant” to make “any such arrest”.
Section 5 provides that the arrested person be handed over to the police with the “least possible delay”. Section 6 prohibits prosecution of any person in respect to anything done in the exercise of the powers conferred by the law. The AFSPA applies to any area declared ‘disturbed’ by the Government of India or aState government, and is to be reviewed ev ery six months.
Also read: AFSPA: Licence to kill
A 1972 Amendment of the AFSPA provided that the Central government, without consulting the State government, could declare any State or part thereof ‘disturbed’. Unlike in 1958, this time there was no debate in Parliament even though the Act covered more than seven per cent of India’s population and more than 7.5 per cent of the land area of the country.
As of 2008, much of the north-eastern region had been designated as ‘disturbed’; these are (i) the areas of Arunachal Pradesh bordering Assam; (ii) the entire State of Manipur (the Imphal valley excluded); (iii) areas of Meghalaya bordering Assam; (iv) the entire State of Nagaland; and (vi) the hill areas of Tripura.
However, despite the law, militant groups have flourished and even grown in number. Official sources argue that this justifies the continuance of the AFSPA, but others hold that its continuance has led to an increase in the number of militant groups.
The AFSPA, which has been in force in the north-eastern region for over 50 years now, provides the basic environment in which the conflicts take place there. Limited changes were made in the Act relating to who can impose the law and how long a detained person can be held.
The Act constitutes de facto martial law and affects relations between (i) soldiers and civilians, (ii) Central and State governments, (iii) industrial estates and its employees, (iv) civil society and government, and (v) India and her neighbours. It aggravates the culture of identity politics and puts counter-insurgency at the heart of planning and keeps development programmes in the hands of the Central government. (See Chapter 4 of the author’s book State, Policy and Conflicts in Northeast India, 2016 for a detailed discussion.)
Since 1947, the north-eastern region has been almost completely cut off from the rest of the country, joined only by a narrow corridor at Siliguri in West Bengal. Centred on the Brahmaputra and Barak River valleys, and consisting of eight States sharing borders with Bangladesh, Bhutan, Myanmar, China, and Nepal, the region’s various ethnicities have links to Southeast Asia and the greater Himalaya.
During the colonial era, the hill tracts with several less advanced tribes were administered separately and classified as ‘excluded’ or ‘partially excluded’, preventing the intrusion of people from the plains to these sensitive areas. Colonial tea and oil interests were located in the Brahmaputra valley. After Independence, the politics of assimilation and integration, most notably in the Naga hills and Manipur, provoked a violent response with separatist tendencies that led to the perceived need to impose the AFSPA with special provisions for ensuring complete immunity to the armed forces in their dealings with civil society and armed opposition groups.
After the Chinese intrusion into the north-eastern region in 1962 and the secessionist tendencies prevalent in the Naga hills and Manipur (and later Assam), the main preoccupation of the policymakers in New Delhi has been not just maintaining law and order but also preventing secessionism. The fears of secessionism and the role of hostile neighbours prevailed in keeping the AFSPA in force.
Human rights violations
Since the 1990s, several international human rights organisations, including the United Nations High Commissioner for Human Rights (UNHCHR), have protested against the serious violation of human rights under the AFSPA and appealed for revocation of the Act. However, the AFSPA is only one of the many repressive laws in force in the north-eastern region.
The B.P. Jeevan Reddy Committee (2005), which reviewed the imposition of the AFSPA after the Thangjam Manorama rape and murder by Assam Rifles personnel in Manipur, recommended repeal of the Act, but ironically wanted its basic provisions be incorporated into the rival Unlawful Activities (Prevention) Act, 2004, or UAPA, to make it appear less discriminatory in the north-eastern region. The government did not accept the committee’s recommendation presumably because of opposition from the Army and the Ministry of Defence, one of the two main Central agencies concerned with security in the region.
Also read: AFSPA: Criminal misuse for decades
The report had an impact on the welfare of the local population and the implementation of the priorities of ‘NER: Vision 2020’ document, then in force. The committee, which had five members but no woman, was significant in the light of the increasing violence against women in the region as documented in official reports. The government’s refusal to accept its report indicates that the move to set it up in the first place was a sleight of hand.
The AFSPA thus continues to provide a framework for military occupation and inevitable militarisation of daily life in the region, creating a huge psychological burden on ordinary people. Insurgency in Manipur became a hugely beneficial proposition to politicians, bureaucrats and middlemen, who milked the Central government for an enormous amount of funds.
Impact of state violence
The impact of state violence and counter-violence from armed opposition groups on women has been serious. Women are routinely questioned and exposed to sexual harassment. A study of women in armed conflict situations in the region identified several categories of women who were affected: women relatives of armed activists, women relatives of State armed forces, women militants or combatants, women who shelter militants, women who have been subjected to sexual and physical abuse, and women who act as peace negotiators.
The study argued that in militarised societies, even in locations where actual armed conflict was minimal, violence against women was far higher than in non-militarised societies. Race and gender intersected. Violence and harassment were directed at women, especially by non-tribal members of the armed forces. Obviously, in all these cases, women included children as well.
Another account provided a case study of the Army rule in the north-eastern region. It focused on the torture and violence inflicted on ordinary people by Assam Rifles personnel during a counter-insurgency operation codenamed‘Operation Bluebird’ in 1987 in Oinam and neighbouring villages of Senapati district of Manipur. This was the Army’s response to a violent attack on the local Assam Rifles camp and arms seizure by an armed insurgent group.
The NER: Vision 2020 document posited a participatory approach to development by involving the region in its economic and other engagements with the countries of Southeast Asia. The approach was important and relevant but the insistence on sticking to the AFSPA became an impediment in shaking off the resistance of the people of the region to any attempts to promote happy relations with the Government of India.
Also read: ‘AFSPA should be revoked’
The AFSPA has received considerable scholarly attention.
In an important study, the political theorist Ananya Vajpeyi propounded that the AFSPA effectively creates “an entirely separate state within India, a sort of shadow nation that functions as a military state rather than electoral democracy”. The Marxist historian Perry Anderson noted the connection between India and non-India, stating that “the hand of AFSPA has fallen where the reach of Hinduism has stopped”.
A legal luminary found the AFSPA unconstitutional. A former civil servant made a case study against the AFSPA and supported the use of the mainstream Criminal Procedure Code in its place.
Protests against law
After the Assam Rifles-inflicted massacre at Malom on November 2, 2000, the indomitable Irom Sharmila Chanu went on an indefinite protest fast demanding the removal of the AFSPA from Manipur. The fast finally ended after more than 16 years in in 2017 but the repressive law has remained in place.
The rape and murder of Thangjam Manorama by Assam Rifles personnel on July 11, 2004, increased the public demand for the removal of the AFSPA. However, the political constituency behind the demand did not prove powerful enough. An attempt to seek a judicial review by the Naga People’s Movement for Human Rights did not succeed.
Following the murder of Thangjam Manorama, several Manipuri women protested naked in front of the Assam Rifles Headquarters in Imphal—an unprecedented protest that shocked the nation.
Another fallout of the existence of the AFSPA is that it has undermined the role of the State police forces in the management of internal security. Former Army chief General V.P. Malik, who had commanded an army division in counter-insurgency operations in Manipur, reportedly told the Manipur Chief Minister in 2004 that it was “either the AFSPA or no counter-insurgency operations”.
The continuance of the AFSPA in Manipur has led to a vast increase in human rights violations and killings. One of the main beneficiaries was the State police force, which emerged with a large number of gallantry medals profiting from the absence of accountability under the AFSPA.
Speaking to this writer, who was on a humanitarian mission documenting human rights violations in Manipur, including the massacre of hundreds of innocents, the State Director General of Police said that the police had only killed “undesirable people”.
Thus, the presence of the Assam Rifles and the existence of the AFSPA in the north-eastern region have resulted in a huge tragedy. However, the Union Home Ministry, which governs the National Human Rights Commission, the activities of the Assam Rifles and the implementation of the AFSPA, continues to provide a huge amount of funds annually for the management of “law and order” in the north-eastern region.
K.S. Subramanian was Director-General of the State Institute of Public Administration and Rural Development under the government of Tripura.