The recent killings of 14 civilians in India’s northeastern province of Nagaland allegedly by a unit of the army has reopened the debate on the utility of controversial legislation Armed Forces Special Powers Act (AFSPA), which gives immunity to security forces against any judicial proceedings.
Last week, the assembly of Nagaland unanimously adopted a resolution demanding the repeal of this central legislation.
Following a meeting with Indian Home Minister Amit Shah, Nagaland Chief Minister Neiphiu Rio said that the central government has decided to form a committee to look into the withdrawal of the AFSPA from Nagaland.
But four days later, a notification issued by the Home Ministry, however, extended the law in the whole of Nagaland for another six months.
Three other northeastern states Manipur, Meghalaya, and Mizoram have also demanded the withdrawal of this act, which gives immense powers to the security forces, for conducting search operations in the areas declared disturbed by the government.
Speaking to Anadolu Agency, Wajahat Habibullah, a former top Indian bureaucrat said the legislation is violative to the rule of law and there is no constrain on a soldier who opens fire on an innocent citizen merely based on suspicion.
The law gave sweeping powers to soldiers to arrest without warrants and even shoot to kill in certain situations.
“This law is violative of the basic principles of democracy and cannot find a place in good governance. At best, it can be applied temporarily to deal with an uncontrollable situation and withdrawn immediately on the establishment of public order,” he said.
Enacted by the British in 1942 to suppress India’s freedom movement, the legislation was notified again after independence in 1958 to combat disturbances in the northeastern provinces.
— Lord Nazir Ahmed (@nazir_lord) January 2, 2022
Currently, it is applicable in the provinces of Assam, Manipur, Nagaland, parts of Arunachal Pradesh, and Jammu and Kashmir.
Long pending demand
Patricia Mukhim, an activist and editor of a northeast-based English daily said this demand to repeal this legislation is being raised in the region quite often and this long pending demand needs to be fulfilled now.
“It is not known if there is any country on this planet that uses military and arms it with the AFSPA which gives the army a blanket cover against civil laws on excesses committed or killing anyone suspected to be a militant,” she said.
She said it was sad that the government has not been able to raise a counter-insurgency force to tackle internal disturbances. She also mentioned that the AFSPA has not been enforced in the areas in Central India that are reeling under armed left-wing violence.
“It was futile to imagine that the army would agree to operate in any disturbed area without the shield of AFSPA or that they would agree to a watered-down version of the Act,” she said.
She noted there is a feeling that AFSPA continues to be imposed in the region “because there is a lack of empathy about what happens there and the continued culture of violence from both state and non-state actors that persists in the region”.
Many armed groups in India’s tribal-dominated northeastern regions, which border Myanmar, China, and Bangladesh are fighting government forces for objectives ranging from greater autonomy to complete independence.
Several international human rights groups over the years have also expressed concern about the controversial legislation.
“So long as the Armed Forces Special Powers Act protects soldiers from accountability, such atrocities will continue, ” said Meenakshi Ganguly, director at Human Rights Watch, while referring to the incident in Nagaland.
“Pledges by India’s home minister and the army to investigate the army’s horrific killing of 14 people will come to nothing unless those responsible are prosecuted,” she said.
Global rights groups express concern
In 2011, Hong Kong-based Asian Human Rights Commission said the law has been at the “heart of concerns about human rights violations in the region, such as arbitrary killings, torture, cruel, inhuman and degrading treatment and enforced disappearances. Its continued application has led to numerous protests…”
In 2004 a government-appointed judicial committee headed by retired judge Justice Jeevan Reddy had also recommended the repealing of this law.
“Therefore, recommending the continuation of the present act, with or without amendment, doesn’t arise. The act is too sketchy, too bald, and quite inadequate in several particular,” the commission wrote in the report, submitted to the government in 2005.
Army resists repeal
In 2014, the Indian army had said it did not find enough evidence to press charges against some soldiers who were accused of “staged killings” in 2000 in Jammu and Kashmir’s Pathribal village.
But the country’s premier investigation agency Central Bureau of Investigation, which also probed the case had indicted the soldiers, stating in the court that it was a “fake encounter and cold-blooded murder”.
The Indian army, however, has been opposing the repealing of this law.
“It should not be taken away. Indian army is very careful while conducting the operations. Indian army is a very professional and disciplined force, “retired Brig. Mohinder Pratap Singh Bajwa, told Anadolu Agency.
“There are proper checks and balances, if anyone is guilty, he should be punished,” he said while arguing that the legislation needs to stay in the statute book.
Anadolu with additional input by GVS News Desk