Context

The killing of 14 civilians in Nagaland in a security operation has sparked debate over the Armed Forces Special Powers Act (AFSPA).

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.

Conclusion

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.

UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)

Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024

Attend Now