Imphal Review of Arts and Politics

Protests were widespread throughout the Northeast against the Oting massacre

AFSPA and the Legal and Moral Hurdles of Waging War in Peacetime

Amidst a chorus of demands for revocation of the Armed Forces Special Powers Act, 1958, in the wake of the botched Oting ambush in Nagaland by the Army killing 14 civilians, the Centre has decided to extend the promulgation of the controversial law in the state for another six months. The AFSPA can be extended only in areas declared disturbed and this status can only be for six months at a time, indicating the AFSPA was meant as an emergency measure not a permanent remedy. The fact that this emergency has lasted for 64 years is itself an indication of something seriously wrong in the Act’s effectiveness.

Before going any deeper, it needs to be clarified at the very start that AFSPA and the Indian Army are not synonymous, therefore the general revulsion for AFSPA in the Northeast is not tantamount to an equal dislike for the Army. In fact, the Northeast’s contribution to the Army at both the officer and soldier level is substantial. This clarification is essential for often there is a tendency to see, nudged by those who would benefit from a flawed pubic vision on the matter, that all questioning of AFSPA is a challenge to the Army and Indian nationalism, preventing any rational debates or soul searches.

AFSPA allows the Army to be assigned civil duty of internal law and order upkeep, in particular fight armed insurgencies. This would have been fine and in tune with the argument that extraordinary situations demand extraordinary responses, but AFSPA does much more. It gives the Army sweeping powers, including to enter and search homes without warrant; use force to the extent of causing death on mere suspicion; and to destroy structures (homes) again on suspicion these are hideouts. The dangers of misuse of these extraordinary powers should be obvious.

But AFSPA has one more attribute to deserve the epithet draconian. Its seventh and last clause spells out the legal shield provided to Army personnel charged of misconduct during operations. There can therefore be no legal persecution of such personnel except with prior permission of the Unio government. This sanction has seldom ever come as journalist Parveen Swami found out and wrote in a 2012 article in The Hindu in the case of Kashmir. According to the report, 42 prosecution requests by the state police in four years were all turned down by the Union government. The Northeast states have more or less internalized this as an unwritten precondition and now seldom seek such sanctions.

Infectious climate of impunity

The arrogance of this unchecked power and the helplessness of those who are at the receiving end, has led to a grotesque climate of impunity, so much so that even the local police who are not covered by the Act at times begin assuming they enjoy the same legal shield. For instance, in Manipur in 2004, after a widespread outrage following a case of rape and murder of a woman “suspect” in custody of Assam Rifles, AFSPA was lifted from the Imphal municipal area as a means to pacify the public.

A special police commando force took charge of the city, and thereafter cases of fake encounter killings rose rather than subsided, and along with it was also a rise in the police gallantry awards. The difference however is, this killing spree was put to a halt after a challenge in the court following the daylight custodial murder of another “suspect” in the heart of Imphal city in July 2009, exposed by the now defunct Tehelka Magazine through a sequence of photographic evidences of the incident it published.

There has been relative calm ever since. But no, this calm has nothing to do with any government effort at conflict resolution but ironically the result of the judiciary’s message that the limits of law cannot be transgressed under any circumstance. Despite the calm, nobody also has any doubt that insurgency has still not been put to rest and efforts to do so must continue.

Geneva Conventions Protocol II

What needs to be noted is that the AFSPA is a law meant to exist in the twilight zone which is neither war completely nor civil law and order challenge. This ambiguity could not have been more pronounced than in the Supreme Court ruling of 1997 where by the AFSPA was described as constitutional but at the same time also calling the situation in the Northeast as strictly an internal law and order matter. Here is where the old paradox comes in – if it is strictly an internal civil matter, how can the Army, which is essentially a war machine be deployed.

It is well known now that the international community did take note of the reality of extreme internal conflicts for in many cases around the world, such as the LTTE case in Sri Lanka, insurgents even acquired the status of a putative state. Under such circumstances, the conventional definition of conflict, categorising them broadly as internal and external and grading international laws accordingly, was felt inadequate. As for instance, under conventional understanding, human rights violations result out of the state infringing on individual rights, and by this same definition, violation of civil order by insurgents would be a matter of breach of the law and order of a country meant for the law and order upkeep mechanism of that country to handle.

There was thus no way of invoking international laws of war in such situations, as these were considered strictly internal matters of the countries in question. It was to address the anomalies in the applicability of international conflict laws in such situation, as well as in the very notion of human rights in situations of non-international armed conflicts that the Geneva Conventions Protocol II, was thought of in 1977 and its final version declared in 1993.

When this additional protocol was at its making stages, India was a staunched supporter, but unfortunately at the time of its final declaration, most countries with internal conflicts, including India and USA, withdrew. All of these countries preferred to call these conflicts internal matters, to be tackled by their own internal laws, rather than open their doors to international laws and other international peacekeeping mechanisms. Jurist A.G. Noorani has done a comprehension article on this in the Economic and Political Weekly, April 4, 1998 issue.

War in Peacetime

This being so, the old question returns. If insurgency in India is an internal law and order matter, just as the Supreme Court also ruled in 1997, how is it justified to use its Army to tackle, and with it, how is AFSPA legal. The trouble today is, an increasing number of countries are today agreeable to disregarding the demands of international norms, standards and laws in pursuing what they consider their private and national interest. The breakdown of the international order is already too deep, and with it, democracy ultimately is also foretold by so many commentators, including not the least, Francis Fukuyama. The latter now even admits his haste in pronouncing the final and ultimate victory of Capitalism when the former USSR fell in his famous book “The End of History and the Last Man”.

If international laws and norms must still matter to individual nations, including of course India, there are two important lessons from this. One, if the Army’s firepower and therefore AFSPA is still felt essential, let the last clause of the Act which provides a legal shield to even personnel who go beyond their briefs, be removed. As witnessed in Manipur, the courts must remain the checking mechanism against any misuse of the powers given by AFSPA.

Two, it has been argued that the Army being dragged into civil lawsuits can be demoralizing for the institution. Point taken, but this should only mean that the responsibility of tackling radical civil unrests, which insurgency is, should now be handled by the police which is accountable to civil law. Modernise police equipment and training fit to purpose and leave the Army to defend the nation against external aggressions. This incidentally was also the outlook of the late supercop, KPS Gill.

If the reluctance to do this is about a lack of trust in the loyalty of local police, that would translate as doubting the very nationhood of the India as a voluntary union. Perhaps it would be relevant to note here that at least in the Northeast, there are no protests when insurgents or soldiers are killed in actual encounters, though people are sad at the violence and loss of life. It is only when innocent public become the senseless targets, as in the Oting case, that people rise in outrage.

Rape and theft has no mention in AFSPA

There is one more important point to note. In its entire length, AFSPA makes no mention of rape or theft, two very common allegations, but the climate of impunity is such that these crimes are also generally deemed covered by AFSPA. This being so, if the AFSPA must continue, it must also be made specific these crimes are open to civil lawsuits.

(This article is an expanded version of the monthly column of the author which appeared in The New Indian Express earlier in the week. The original TNIE story can be read here.)

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