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Context

The recent killing of civilians by security forces in a case of alleged mistaken identity in Nagaland has once again rekindled the debate over the Armed Forces Special Powers Act (AFSPA).

Six civilians said to be workers in a coal mine were killed by security forces in an area between Tiru and Oting village in Nagaland’s Mon district. The incident triggered violence in the area in which eight more civilians were killed after security forces allegedly opened fire.

The killing of civilians has been condemned by local civil society organizations, Naga outfits, national political parties, and the state government itself. The Government has promised an inquiry by a Special Investigation Team.

What can be the impact of the killings?

Retard the peace process: It can stall the ongoing Naga peace process and has the potential to revive the narrative of India versus the Naga people.
Threat to internal security: The incident can be used by the insurgent groups to recruit and even strengthen the positions.
Resentment among groups:
- NSCN(I-M), the key Naga group negotiating with the Centre, has already declared the incident as a “black day” for all Nagas.
- While, Naga National Political Group (NNPG) has blamed the continued implementation of the Armed Forces Special Powers Act (AFSPA), 1958 for such incidents.
Demand for repeal of AFSPA: There have been mounting demands for repeal of AFSPA in the Nagaland region.

Multiple views of the incident

Opportunity for Naga separatists to push their demands: For those sympathetic to the rebel Nagas, this is an opportunity to tarnish the image of the Army, demand its withdrawal from the area, and push their agenda to demand a separate Constitution and a separate flag for the Naga separatists.
Difficult task for security forces amidst insurgencies: It must be remembered that the security forces are performing an extremely difficult and complicated task in the midst of multiple insurgencies in the Northeast.
- Counterinsurgency operations are full of uncertainties and in such a situation, mistakes and blunders happen.
Political failure: In fact, they are paying the price for our political mis-management and blunders since the mid-fifties when trouble erupted in the Naga Hills.
Other international examples of such mishaps: In Iraq, on March 1, 2017, during a strike on ISIS near Mosul, there was an unintentional death of 14 civilians because the blast set off a secondary explosion.
- Recently, on August 30, a drone strike by the US forces killed 10 civilians near the Kabul International Airport.
Proper enquiry is must: However, it cannot be denied that the incident was negligible, but it needs to be carefully investigated, and if there was any malafide or excessive use of force, the guilty must be punished.

Let us learn about the Armed Forces Special Powers Act (AFSPA), 1958 in detail.

AFSPA: A Backgrounder

The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.

Armed Forces (Special Powers) Act, 1958

Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.

What are the Special Powers?

The ‘special powers’ which are spelt out under Section 4 provide that:

(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;

(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;

(c) Power to arrest without warrant and to use force for the purpose;

(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property, etc.

What are the Disturbed Areas?

A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.

Who can declare/notify such areas?

The Central Government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.
A suitable notification would have to be made in the Official Gazette.

Presently ‘Disturbed Areas’

AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.

AFSPA: Is it a License to Kill?

While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.

Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.

The case for repeal of AFSPA

The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging dark history of our conduct in Nagaland.
If the moral case for repealing AFSPA is strong, the political case points in the same direction as well.
Need for ensuring individual dignity: The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of individual dignity of the Indian Constitution are not extended.
Not state of exception: We often describe AFSPA in terms of a “state of exception”.
But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”.

Why AFSPA is counterproductive to Army

Distortion of choice: First, giving wide immunity to the forces can distort the choice of strategy in counter insurgency operations.
Reduce professionalism: Second, wider immunity can often reduce rather than increase the professionalism of the forces.
Against federalism: Third, we are constantly in the vicious circle that leads to central dominance in a way that undermines both Indian federalism and operational efficiency.

Powers and limits under AFSPA

The Act grants extraordinarily sweeping powers to the armed forces of search, seizure, arrest, the right to shoot to kill.
No blanket immunity: It is true that AFSPA does not grant blanket immunity.
The SC guidelines: The Supreme Court laid down guidelines for the use of AFSPA in 1997; and in principle, unprofessional conduct, crimes and atrocities can still be prosecuted.
But this will run into two difficulties.
Lack of accountability mechanism: As the Jeevan Reddy Committee that advocated the repeal of AFSPA pointed out, the accountability mechanisms internal to AFSPA have not worked.
In 2017, the Supreme Court ordered a probe into 1,528 extra-judicial killings in Manipur.
At the least, this order seemed to suggest the problems with AFSPA were systemic.
But there have apparently been no hearings in this case for three years.
Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.
Our discourse is a rather abstract one, balancing concepts of human rights and national security.

Supreme Court’s Observations over AFSPA

These extra-judicial killings became the attention of the Supreme Court in 2016.
It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.

Constitutionality of AFSPA

Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:

Right to Life and Personal Liberty (Article 21) and
Federal structure of the Constitution since law and order is a State subject

Recommendations to repeal AFSPA

(1) Justice B.P. Jeevan Reddy Commission

The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.

(2) ARC II

The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
However, the recommendation was considered first and then rejected.

Other issues with AFSPA

(1) Sexual Misconduct by Armed Forces

The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
It observed that- in conflict zones, legal protection for women was neglected.

(2) Autocracy

The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.

The caution given by the Supreme Court

A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:

Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
Good intelligence: It added that “good intelligence is the key to success”.
Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.

Conclusion

Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.
It is high time that all parties come together to repeal AFSPA. It will also be in the fitness of things if all parties got together to acknowledge the trauma in Nagaland and elsewhere.
This will strengthen, not weaken, the comatose Indian constitutional project.

Try this question for mains:
Q. Evaluate the need for AFSPA in disturbed areas. Discuss in the context of the recent Nagaland incident.