AFSPA: Administering and Revocation - Collective Responsibility

The response to the Armed Forces Special Powers Act (AFSPA) in India is episodic.

After a major incident, there is growing demand for repealing, amending or removal of the Act.

The latest demand for repeal of AFSPA came after the Oting incident in Mon District in Nagaland where innocents were killed in an ambush by Special Forces of the Indian Army on December 04.

Many others died in clashes in the aftermath of the protests that broke out over the killing resulting in 14 fatalities.

The Home Minister Mr Amit Shah expressed regrets over the incident in the parliament and the Army Chief General M M Naravane separately.

The State government of Nagaland instituted a Special Investigation Team (SIT) on December 5, 2021, to probe the Oting incident and submit a report within a month.

A preliminary report has been submitted to the Nagaland government on January 9.

A final report will be submitted after inputs are received by the SIT from the Central Forensic Science Laboratory (CFSL) at Guwahati and Hyderabad.

The Indian Army Court of Inquiry on the incident has also been completed and possibly the report is in the chain of command.

Public Demand

The central demand of the public particularly Konyak community that was principally affected by the incident is the removal of the AFSPA.

The community not just the Konyaks but across the North East believes that AFSPA delegates armed forces personnel powers to search, arrest and shoot at a very junior level leading to misuse.

Under ordinary course military personnel can open fire when called upon for assistance by civilian authorities on orders of an Executive Magistrate.

On the other hand under AFSPA a Non Commissioned Officers can open fire based on his judgement at the spot of any encounter.

The aim of the Act is to empower armed forces personnel at an encounter site at an disadvantage.

However, possibility of misuse remains.

The Oting incident may deem to be one such case where opening fire on unarmed youth is not justified unless there is evidence to prove otherwise.

This makes a strong case for firstly proper application of AFSPA and also review of applicability to Nagaland and other parts of the North East.

The larger issue is to review the Act for which a parliamentary amendment would be essential and will have to be undertaken with due deliberation.

Against this backdrop comes Responsibility.

Responsibility

As far as amendment of the AFSPA this would have to be undertaken through a motion in the parliament and a bill to the effect will have to be proposed.

The complex process, debate and discussion involved is clear. The responsibility rests on the government if it deems necessary that the AFSPA be amended, political parties and members of the parliament.

At present there does not appear to be any move for such an amendment.

The second issue is application of the Act to Nagaland or any other state.

The process has two stages – declaration of an Area as Disturbed, which is to be carried out by the State Government and notification of the same by the Centre.

AFSPA has been repealed from Tripura and Meghalaya in the past through such a process.

At times Centre suggests to a State against declaration as a Disturbed Area which happened in the case of Assam in the past but the authorities in Dispur (state capital) did not agree to the same.

States are reluctant to give up the shield of Disturbed Area Act as they either do not have or perceive not to have capability to manage the level of insurgency and terrorism in their jurisdiction.

Indeed, if removal of AFSPA from Nagaland is desired, it can be done so.

The Army Chief General Naravane hinted as much in a recent interaction.

“We (Army) are only the instruments in implementing AFSPA. I will be most happy if a call (to repeal AFSPA) is taken as the Army can focus on the conventional role of the Army,” Naravane said in an exclusive interview to Times Now’s editor-in-chief Rahul Shivshankar.

The process for repealing of AFSPA as demanded by the Konyak Community would therefore involve the State non declaration as a Disturbed Area followed by the Centre not notifying the same.

Given limited number of incidents and fatalities in Nagaland since 2016, the state of insurgency is low and thus revocation of AFSPA can be considered holistically.

As per the South Asia Terrorism Portal database from 2016 onwards, number of incidents involving fatalities is less than six and number of fatalities less than 10.

In the past three years, fatalities have been less than five.

There are some concerns however of groups such as the NSCN IM and others who are presently having a cease-fire with the Government of India repealing the same and going on the offensive, thus the AFSPA is seen as a caution against this contingency.

Secondly Eastern Nagaland adjacent to Arunachal Pradesh is on the route of transit for North East militant groups based in Myanmar.

Operational via media would have to be found if the armed forces are not permitted to operate here after revocation of AFSPA.

While responsibility for invocation or repealing the AFSPA in an area is that of the State and Central Government, its operation within the bounds of the law and spirit of the law, which implies justifiable use of lethal force in civilian areas is that of the Indian Army.

Clearly, in this respect, the Indian Army has much to answer for in the Oting incident.

Hopefully the SOPs are refined to avoid recurrence in the future.

Conclusion

A realistic appraisal of demand for revocation of AFSPA by the Central and the State government along with the Army is necessary in the wake of the demand by the Konyak community in Nagaland.

Engagement with the public is an essential facet for the security forces are operating to protect the people rather than victimise or coerce them misusing empowerment granted by the AFSPA.

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