Introduction
On
December 4, 2021, a unit of 21st Para Special Forces killed six civilians near
the Oting village in the Mon district in Nagaland, India. In the aftermath of
the violence, eight additional civilians and a soldier were killed. For obvious
reasons, this episode has sparked widespread indignation among the general
population. The Army alleges it was the victim of a blunder in intelligence.
According to the Indian Army, the vehicle conveying the civilians was suspected
of containing Naga rebels. They further allege that they only opened fire when
the vehicle's halt commands were not heeded. The accusations were dismissed by
the two survivors of the tragic tragedy, as well as Nagaland Police, after a
preliminary investigation. The situation deteriorated further when nearby
villagers, alarmed by the gunfire and locals who had failed to return, rushed
to the area and halted a convoy of military vehicles. In the subsequent brawl,
army vehicle tyres were punctured and three vehicles were set on fire. Seven
additional people were murdered and twenty were wounded as a result of the
firing.
The
violence was one of the worst outbursts in Nagaland in recent years, which has
long been riven by insurgency and ethnic divides fomented by local militant
organizations. It's also not the first time that Indian military personnel have
been accused of targeting innocent civilians in their operations. Following the
unfortunate incident, Nagaland's Chief Minister, Neiphiu Rio, urged that the
Armed Forces (Special Powers) Act be repealed. Conrad Sangma, the Chief
Minister of Meghalaya, backed this demand as well. The "biggest hurdle to
justice" in the volatile area, according to Sanjoy Hazarika, a writer and
pundit with a specific emphasis on North-East India, is "the comprehensive
protection afforded to the security forces" under India's Armed Forces
Special Powers Act (AFSPA). Similarly, several human rights organisations in
India and throughout the globe have emphasised the need for the Indian
government to repeal the contentious act as soon as possible. This occurrence,
which allegedly occurred due to "mistaken identification," has
generated further issues regarding the AFSPA's need, constitutionality and
legitimacy.
What
is AFSPA?
The
Armed Forces Special Powers Act (AFSPA) of 1958 is an act of the Indian
Parliament that gives the Indian Armed Forces special powers to preserve public
order in "disturbed regions." The Disturbed Areas Act of 1976 states
that once an area is designated as "disturbed," it must remain such
for at least six months. The AFSPA was first implemented in 1958, during the
administration of Congress, to combat widespread insurgency in the
North-East.Following independence, the Indian government considered it
essential to enact anti-terror laws in order to preserve peace and order and to
substantially crush separatist beliefs in certain places. On September 11,
1958, a law was enacted that applied to the Naga Hills, which were then part of
Assam. It expanded to the other Seven Sister States in India's northeast during
the next several decades, one by one. Another, enacted in 1983 and applied to
Punjab and Chandigarh, was repealed in 1997, about 14 years after it was
enacted. Jammu and Kashmir have been governed under a law enacted in 1990 that
has been in effect since then. It is now in effect in Assam, Nagaland, Manipur,
and certain parts of Arunachal Pradesh.
Opposition
To AFSPA
The
Armed Forces Special Powers Act (AFSPA) provides the Armed Forces with broad
powers, enabling them to hold people and even launch fire on the basis of
suspicion alone. According to Section 4 of the Act, "any commissioned
officer, warrant officer, non-commissioned officer, or other person of
equivalent rank in the armed forces may," among other things, "fire
upon or otherwise use force, even to the causing of death," against anyone
who violates law or order in a supposedly "disturbed area." Officers
may also "demolish" any facility or shelter from which armed assaults
are made, are expected to be made, or are tried to be made, if they believe it
is "essential." AFSPA has been heavily criticised by numerous
sections throughout the years for stating worries about human rights abuses in
the areas where it is supposed to be enforced. There is no statistical evidence
that the law has been successful in combating insurgency in the area in recent
decades. Under the guise of keeping "public order," this has
generally allowed for extrajudicial executions in the area. To begin with, a
region's designation as a "disturbed area" is based on ambiguous political
judgments. Currently, under the AFSPA system, the Armed Forces have blanket
immunity for whatever acts of violence they commit under the guise of national
security.
The
judiciary’s position with respect to AFSPA
The
Supreme Court has been referred to as the "custodian" and
"guarantor" of people's rights on several occasions. However, in
terms of judicial action, it has given little to no assistance in the case of
military atrocities. In Naga People's Movement for Human Rights v Union of
India (1998), the Supreme Court maintained the AFSPA's validity while also
establishing a few protections for arrest and detention. The Supreme Court
decided to focus on the act's legality rather than its harsh character and lack
of accountability. The Court subsequently validated "military
dominance" by enabling the Armed Forces to operate with impunity for the
abuses perpetrated under the Act. According to Hillyard, the court becomes
involved in the "violence of jurisprudence" in such cases, and the
state plays a role in perpetuating the condition of violence. A similar
approach to the law may also be seen in some of the judgments of other courts
around the nation.
In
India, many government-appointed commissions have recommended that the statute
be repealed. The administration, however, has failed to follow the suggestions
due to army objections. Several UN human rights organisations have also urged
the law's repeal. The AFSPA has safeguarded security force officers from
prosecution in civilian courts, even in the most high-profile examples of
extrajudicial murders, while military tribunals have finally cleared them of
any wrongdoing. The army stated in November 2014 that a military court had
sentenced five troops to life in jail for fabricating an armed encounter and murdering
three civilians in a Jammu and Kashmir district in 2010. However, in July 2017,
a military tribunal postponed the sentence and discharged all five defendants
under the Armed Forces Special Powers Act (AFSPA). In a historic 2016
judgement, the Supreme Court underlined this lack of accountability by stating
that every accusation of uniformed personnel using excessive or retaliatory
force that results in death deserves a comprehensive investigation. Even in an
area deemed a disturbed area under AFSPA and against militants, insurgents, and
terrorists, the court stated, such force was not permitted. Despite several
Supreme Court judgments and cases, the central government has refused to
prosecute military forces personnel in all incidents of extrajudicial murders,
invoking AFSPA.
Constitutional
validity of AFSPA
It's
worth noting that the Constitution offers enough protection by allowing the
state many tools to restrict freedom and liberty when a state of emergency is
declared. The constitutional structure, on the other hand, forbids the use of
such emergency powers during regular times. Anti-terror legislation should not
be allowed to function under the "state of exception," which allows
the government to override the rule of law in extraordinary situations for the
greater good. Although the state may use anti-terror measures to violate the
rule of law in exceptional circumstances, it must do so within the
constitutional protections outlined in Article 22(7), as envisioned by our
drafters. To put it another way, harsh anti-terror legislation like the AFSPA
that operates during regular times, beyond the reach of this clause, would
indicate that they lack the constitutional authority to restrict people's
freedom and liberty. Furthermore, the continued implementation of anti-terror
laws like the AFSPA jeopardises the right to life and dignity guaranteed by
Articles 19 and 21 of the Indian Constitution. While the Constitution
guarantees freedom of speech and expression as well as civil liberties,
anti-terrorism legislation such as the AFSPA continues to undermine these
rights.
Conclusion
and the Way Forward
As
a result, the government must assess the impact of harsh counter-terrorism
measures on civil liberties while also recognising that they jeopardise the
promise of constitutional morality. Allowing the state of exception to become
the new norm would reduce democracy to a figment of the imagination. To
maintain minorities' faith in democracy, the state must implement
constitutional morality as envisioned by Dr. BR Ambedkar, thus recognising the
existence of minorities like the Nagas as vital to that of other citizens.
There is an imperative need to decolonize our legislative corpus in order to
eradicate laws that inadvertently foster a culture of fear in the name of
control. The AFSPA has not only deprived local populations in the North-East of
their fundamental human dignity, but it has also spawned extremists, allowing
the deadly loop of terrorism to continue.
The
government has created a Special Investigation Team to look into the matter. It
is evident that the continuous use of AFSPA to maintain public order must come
to a stop, and the long-overdue demand for its repeal must be granted.
Unfortunately, the tragedy may throw a kink in the works for Naga peace negotiations
between the government and the National Socialist Council of Nagalim (NSCN-IM)
and seven Naga National Political Groups. The meetings' secrecy hasn't helped
things, though, according to the government's smoke and mirrors approach to the
Peace Accord. The only option now is to demonstrate true contrition for the
crimes, bring the perpetrators to justice, and seek reconciliation with the
Konyak Nagas via compensation for the violence, in addition to a renewed
commitment to completing the Naga peace negotiations. Furthermore, with Myanmar
returning to a military regime and India locked in a stalemate with China, it
is even more critical that the Centre conduct an unbiased investigation into
the incident. It should allow military personnel to be prosecuted if necessary
and examine the AFSPA processes. Most significantly, there is a pressing need
to revisit AFSPA and reconsider its future in order to prevent such
catastrophes in the future.
This
blog is authored by Arnav Laroia, student of National Law University, Jodhpur
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