AFSPA: Criminal misuse for decades

The uninterrupted deployment of the military over decades for internal security duties is proof of political-administrative incompetence. It is time to hold governments in States and at the Centre to account for their misgovernance and misuse of their powers under the AFSPA to deny people their rights and freedoms.

Activists of the Peoples Democratic Party take out a rally in Srinagar on November 21, 2011, against corruption and also demanding removal of the AFSPA from the then State of Jammu and Kashmir.

THE Armed Forces (Special Powers) Act (AFSPA), 1958, has repeatedly come under public scrutiny over the years, more recently following the killing of Mangboilal Lhovum (29) in Manipur on June 4, allegedly by an army man.

While the criminal misuse of the AFSPA by Army personnel has rightly been questioned and even represented before the Supreme Court, misuse of the Act by governments for decades has not been questioned. The AFSPA has supporters, detractors and bitter opponents. State and Central governments need it and have been extending its use continuously over decades, human rights activists argue and agitate against it, and people who are directly affected by it in one way or another strongly object to it and demand its repeal.

The AFSPA vests governments and the armed forces, the “military” hereafter, with powers that flow out of the Constitution and the law itself. To see how and why governments and the military need these powers and to understand the reasons for public opposition to the AFSPA, one needs to delve into the purpose of its enactment, the rules for its use and its effects on people and society.

Governance

Dissonance, dissent and protest are realities in any society, and governments may engage with people through the democratic process of dialogue, consultation, debate and negotiation.

In 1956, in the context of the Naga people’s armed resistance to joining the Union of India, Prime Minister Jawaharlal Nehru wrote to the then Chief Minister of Assam, Bishnuram Medhi, saying: “We have always to remember that the real solution will require a political approach and an attempt to make the Nagas feel that we are friendly to them and that they can be at home in India.” However, the government apparently found an inescapable need to deploy the military, and Parliament enacted the AFSPA two years later. But militancy continues even today, 63 years later, clearly because use of force does not provide long-term solutions to political problems.

Inappropriate or skewed development and economic policies/legislation/programmes/projects/propo- sals, combined with the less-than-honest politics of successive State and Central governments, have caused loss of habitat or livelihood, especially of people at the lowest socio-economic levels. Governments respond to people’s protests with police force. This economic-political “violence” of mal-governance and misgovernance over the years by successive governments has resulted in social disturbance and unrest, including the violence of militancy, extremism and insurgency, in many States, especially in the north-eastern region and Jammu and Kashmir. Public security is the casualty of the violence and counter-violence escalating over decades.

Government administrations deal with the breakdown of internal security over large areas using the State police and the Central Armed Police Forces (CAPF). When, for whatever reason, the State police and the CAPF are unable to restore peace and order and the situation gets or remains out of control, the government has no recourse other than calling on the military to restore order. Indeed, countrywide over the decades, the military has been deployed for internal security, for accident and natural disaster relief, and even to rescue children who have fallen into borewells.

Nobody can argue that governance is easy. However, frequent military deployment for internal security is an implicit admission of governance failure and political-administrative incompetence in States and at the Centre, and uninterrupted military deployment for decades for governance is highly undesirable in a democracy.

The AFSPA

The Constitution (Article 246, Seventh Schedule) provides for the use of the armed forces “in aid of the civil power”. Further, the AFSPA confers special powers upon a State or Central government to notify the whole or some part of a State as a “disturbed area [which is] in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary”.

The “Introduction” to the AFSPA states that governments need the military “...because the State administration became incapable to maintain its internal disturbance [ sic ]”; the word that should have been used is “security”. Governments may therefore legally deploy the military for internal security, the maintenance of which is the primary responsibility of the police working under the control of the politician-bureaucrat administration. The AFSPA was enacted to make better provision for the suppression of disorder and the restoration and maintenance of public order when normal means fail.

The soldier

When deployed on internal security duties, a soldier administered under military law (the Army Act, 1950) cannot fire on civilians without the permission of the civil administration represented by an accompanying civilian official not below the rank of a magistrate. In default, the soldier is liable to disciplinary action by court martial under military law. When Home Minister Govind Ballabh Pant was debating the AFSPA Bill in 1958, he argued that the AFSPA was needed because it was not feasible “...over such a vast area to depute civil magistrates to accompany the armed forces wherever there may be trouble...”.

Soldiers cannot be deployed in a non-military role without a specific legal dispensation. The AFSPA is the law that authorises and enables soldiers to operate without a magistrate when the State administration (politician-bureaucrat-police) is incapable “...to maintain its internal security” over large areas. Soldiers, not the military units, need the AFSPA. Police personnel do not need it.

As a typical example, consider the 2020 Manipur State Home Department notification: “In exercise of the power conferred by Section 3 of the Armed Forces Special Powers Act (AFSPA), 1958, as amended [ sic ] time to time, the Governor of Manipur hereby accords ex-post facto approval declared [ sic ] the entire state excluding Imphal Municipal areas with retrospective effect from December 1... [because] …the Governor felt that the state is still in the grip of violence perpetrated by extremist or insurgent groups and it is necessary that armed forces remain deployed to help the civil administration ensure order and peace.” The State being “still in the grip of violence perpetrated by extremist or insurgent groups”, the government exercises its power under the AFSPA for the military “to remain deployed to... ensure order and peace” because the military needs the Act when it operates in a police role for internal security.

Therefore, the government invoking the AFSPA to use the military for internal security taken together with the soldier’s indispensable need for the Act makes the “military-AFSPA” a legal-cum-operational “package” that cannot be unbundled: it is not possible to have one without the other.

The people

When disturbance and violence is geographically limited, a unit or subunit of Army troops accompanied by a magistrate usually brings the situation under control after a brief period of disruption of normal life. Indeed, knowing their politicians, bureaucrats and police, the public often welcomes the military. However, when the violence is more widespread and out of control and normal life continues to be disrupted, the government has to invoke the AFSPA to declare areas or even the entire State “disturbed” so that large numbers of the military can be deployed “in aid of the civil power”.

With police-military advice, the State administration imposes restrictions such as curfew, which disrupt people’s livelihoods and normal social life. The public may still accept this if the government succeeds in political-administrative solutions to normalise the situation in a few weeks. However, if normalcy is not restored, militancy continues. The security forces frisk people in public places and cordon-and-search their homes looking for hidden militants, weapons or information. Militants fire on the security forces, soldiers are killed or wounded, and innocent people are killed in the crossfire. The politics of violence, counter-violence, body counts and weapon caches replaces the politics of dialogue and discussion.

Confrontations between the public and the security forces increase in number and intensity, people are taken in for questioning, and so on, and custodial violence can and does follow. This may include torture, extrajudicial killings such as staged “encounters” and rape, extortion, and so on, all serious crimes besides being human rights violations.

Over the years, trapped between the militants and the security forces (the State police, the CAPF and the Army), people live in constant fear for their lives, families and property. This is traumatic for citizens and ruptures the social fabric. Government officials too fear for their lives but mostly, certainly senior officials, remain safe behind a heavy security cover. When Central or State administrations impose the AFSPA continuously over decades, as in several north-eastern States and in Jammu and Kashmir, disrupted peace and order become the new normal. Citizens resent this continuous denial of their civil liberties, political and civic participation, and the right to life with dignity. Their lives and livelihoods are irreparably ruined.

The AFSPA is targeted

The public demands that the AFSPA be removed unaware of the legal-cum-operational “package” that soldiers cannot and must not operate on internal security duties without it. If the AFSPA is removed, the military withdraws, and the government does not want that. Irom Chanu Sharmila—a national icon of courageous non-violence who fasted for 16 years demanding repeal of the AFSPA, ending her fast in 2016—expressed this uninformed public perception: “I am against a government that uses violence as a means to govern” and, further, “...the government and the Army are colluding to cheat the people” (Kattakayam, Jiby (2013): “I am against a government that uses violence to govern”, The Hindu , March 5, p. 12).

Public’s misperception

Voicing determined and principled opposition to governments using violence to govern is both correct and unexceptionable. But believing that the government and the Army are in collusion to cheat people is a wrong perception of reality because it is the government’s misgovernance and continuous (mis)use of its powers under the AFSPA that deny people their rights and freedoms. Governments are not unhappy that this public misperception continues because it conceals misgovernance, enables continuance of political chicanery and deflects public attention from the government’s incapabilities onto the military. Thus, it is unsurprising that those agitating for repealing the AFSPA never ask why successive Central and State governments with their awesome resources have been incapable of dealing with a “disturbed or dangerous condition”, primarily of their own making, over decades in a democracy.

Over the decades, people’s elected representatives in Parliament or State Assemblies, especially those in the opposition, have never questioned such abuse of the AFSPA in a democracy. However, they have had no hesitation in criticising the armed forces deployed for internal security duties and demanding repeal of the AFSPA. Does this indicate that they are playing to the public gallery or an absence of understanding of the AFSPA or complicity in governance by state force?

The Supreme Court

In 1997, the Naga People’s Movement for Human Rights brought several issues concerning the AFSPA in a petition before the Supreme Court (Naga People’s Movement, of Human Rights etc. etc. vs Union of India, AIR 1998 SC 431). Among other matters adjudicated, the Supreme Court made the direction that the government had the obligation to review the internal security situation to continue the declaration of “disturbed area” before the expiry of six months.

However, the government’s insincerity about discharging this obligation is proven when it issues fresh notifications valid for the next six months routinely, even ex-post facto with retrospective effect, as the Government of Manipur has done. By continuously declaring States “disturbed area[s]” under the AFSPA six months at a time for decades, governments fail in their duty to the people, besides possibly being in contempt of the Supreme Court.

Hopefully, in a future judicial review of the AFSPA, the Supreme Court will recognise that governments keeping the military continuously deployed for internal security duties is proof, if proof is required, that successive civil administrations have been governing by force, which is unacceptable in a democracy.

The military should revert to primary role

The military continuously on internal security duties is to civil society what an ICU is to a critically ill person. A patient surviving in an ICU for many years is effectively dead. The patient needs treatment for the disease and the right nutrition to regain normal health. Likewise, the military remaining deployed on internal security duties continuously over decades makes civic and political freedoms effectively dead without assuring peace, order or security in society. India’s people need the “treatment” of honest political effort through transparent dialogue and engagement with people and the “nutrition” of good governance for their growth.

No government, howsoever liberal, will repeal the AFSPA and relinquish the option to use the military “in aid of the civil power”, but it might consider amending the Act. An amendment to Section 3 to limit use of the AFSPA to an aggregate of, say, 90 days in a calendar year will allow governments to retain the coercive option of military deployment to maintain law and order. It would also prevent continuous (mis)use of the Act.

An amendment to the AFSPA by inserting the following at the end of Section 3 should serve the purpose: “Provided that the Governor of the State or the Administrator of the Union Territory or the Central government shall not declare an area as disturbed for more than an aggregate of 90 days in any calendar year.” Such a restriction on governments will help civil societies recover their civic and political rights and simultaneously release soldiers deployed on internal security duties for their primary role of defending the borders.

It is pertinent to note that the Supreme Court has wisely recognised that involvement of the military on internal security duties “...brings them in confrontation with their countrymen [and] prolonged or too frequent deployment is likely to generate a feeling of alienation among the people against soldiers, who by their sacrifices in the defence of their country have earned a place in the hearts of the people [and that] it also has an adverse effect on their morale and discipline”.

The Taliban’s August 15 victory in Afghanistan has increased India’s external threats. Pakistan will surely provide Taliban fighters with logistic support and access to the Line of Control in Pakistan-occupied Kashmir, heightening insurgency and militancy in Kashmir and elsewhere. China is making increasingly belligerent moves on India’s borders, and the China-Pakistan collusion will severely stretch India’s military, which is in the process of reorganising itself. It is necessary for national-level political-military decisions to be taken to release the military from internal security to the maximum extent possible so that it is better able to engage in its defence role.

The bottom line

Individual soldiers, at personal risk during internal security deployment, who misuse their powers under the ASFPA are liable to punishment under the law. The military as an institution cannot misuse the AFSPA. But misuse of the Act by governments is institutional and risk free. Therefore, where the AFSPA is concerned, governments and State institutions must be called to account. In the meanwhile, crimes by soldiers operating under the AFSPA and by police personnel (who do not need the Act) must be transparently investigated and the individuals punished when convicted after due process.

Maj. Gen. S.G. Vombatkere retired as Additional Director General in charge of Discipline & Vigilance from the Adjutant General’s Branch in Army Headquarters, New Delhi. He writes on matters concerning develo pment and strategy. <sg9kere@live.com>