Armed Forces Special Powers Act – Fighting or Fueling Insurgencies?

On December 4, Indian Army personnel shot and killed six coal miners at Oting village in the northeastern state of Nagaland’s Mon district. Apparently, the troops mistook the miners for militants. Soon after, violent clashes erupted between angry local villagers and troops, which resulted in seven more civilians and a soldier getting killed.

Insurgent groups like the National Socialist Council of Nagaland-Khaplang (NSCN-K) and the United Liberation Front of Asom (ULFA) are active in the Mon district, which also shares an international border with Myanmar. The area is known to be volatile.

Although the Indian Army has expressed regret and has ordered a high-level inquiry into the circumstances leading to the killing, it has not been able to quell the protests. Indeed, demands for repeal of the Armed Forces Special Powers Act (AFSPA) 1958 are gathering momentum not just in Nagaland but across the restive Northeast.

The AFSPA is legislation that grants armed forces personnel in “disturbed areas” “certain special powers,” including the right to shoot to kill, to raid houses and destroy any property that is “likely” to be used by insurgents, and “to arrest without warrant” on “reasonable suspicion” a person who has committed or even is “about to commit a cognizable offence.”

Besides conferring extensive powers on the armed forces, AFSPA provides them immunity from prosecution. Section 6 of the legislation says that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

No legal action can be initiated against a soldier acting under this legislation, however serious his violation of human rights.

AFSPA was enacted by the Indian Parliament in September 1958 to deal with the “disturbed conditions” in the Naga-inhabited areas of the Northeast. The law comes into play in any area that has been declared “disturbed.”

It was supposed to be in operation temporarily, for a year only to tackle the Naga insurgency. Sixty-two years later, almost all of the seven states in the Northeast have come under AFSPA at one point or another. Today AFSPA is in effect not only in Nagaland but also Manipur, Assam, and some districts of Arunachal Pradesh. AFSPA was imposed on Punjab in western India in 1983 and withdrawn 14 years later. Jammu and Kashmir (J&K) has a separate J&K Armed Forces (Special Powers) Act, 1990.

AFSPA is a controversial piece of legislation.

Its strongest proponents are the armed forces, who maintain that it is impossible to fight an armed insurgency without the protection of a law like AFSPA. Without AFSPA, troops would be distracted with fighting court cases rather than focusing on fighting the insurgency, they argue.

Military officials who have served in the Northeast say that it was AFSPA that enabled the Indian Army and paramilitary forces to quell the insurgency in Nagaland, paving the way for the ceasefire agreement of 1997, which holds to date.

However, AFSPA’s critics point out that it enables troops to act with impunity and is the cause of many excesses and atrocities committed by the armed forces over the past 60 years. It violates the basic tenets of a criminal justice system and an individual’s rights guaranteed under Indian and international laws. Human Rights Watch has described it as a “tool of state abuse, oppression and discrimination."

Importantly, deaths due to the impunity facilitated by AFSPA have deepened mass anger against the state and may have contributed to more youth joining insurgent ranks.

The Northeast has called for AFSPA’s repeal for decades. The Meira Paibis (Torch Bearers), a women’s social movement in Manipur, has been at the forefront of the campaign against the act. In July 2004, 12 Manipuri mothers stripped naked in front of the Assam Rifles headquarters in Kangla Fort, Imphal to denounce the rape and extrajudicial killing of a 31-year-old Indigenous woman, Thangjam Manorama. “Indian Army, come and rape us all,” the women shouted, demanding the repeal of AFSPA.

AFSPA is immensely unpopular in the Northeast and whenever cases of torture, extrajudicial killings, and rapes have come to light the region has erupted in angry protests.

Since the recent killings at Oting, Nagaland has convulsed with protests. Tribal bodies and civil society groups have called for the shutdown of all activity across the state. Students unions from across the region have joined hands to press for AFSPA’s repeal.

While the government has offered monetary compensation to the kin of those killed by the armed forces, the families have refused to accept the money until the guilty soldiers are executed and AFSPA is repealed.

Despite judicial commissions recommending AFSPA’s repeal, the law remains in place. The armed forces are strongly opposed to its revocation, as are state governments. While the armed forces’ need for AFSPA is obvious, the role of state governments in keeping it in force is not so well known. In September, for instance, India’s Ministry for Home Affairs was reportedly in favor of AFSPA being removed from some areas in Assam where it is in force. The situation in Assam has, after all, improved. However, the state government dug in its heels. It wanted AFSPA to remain in force.

It is believed that state governments like to keep AFSPA in place as “disturbed areas” are eligible for more funds from the central government.

But following the Oting killings, state governments in the Northeast have responded differently. They are calling for AFSPA’s revocation.

Among those calling for AFSPA’s repeal are Nagaland Chief Minister Neiphiu Rio, Meghalaya Chief Minister Conrad Sangma, and Manipur Chief Minister N. Biren Singh. Incidentally, all three are allies of India’s ruling Bharatiya Janata Party (BJP). Although the BJP is a strong supporter of AFSPA, the chief ministers of Nagaland, Meghalaya, and Manipur are calling for its repeal as they are worried that their governments will crumble in the face of the anti-AFSPA tidal wave sweeping the Northeast.

If the Indian state is unwilling to repeal AFSPA it must at a minimum reform this law in a way that brings its provisions in sync with the Indian Constitution and other laws.