Those who worry that repealing AFSPA would open a can of worms, may be better advised to let such insecurities go

Sudeep Chakravarti, Live mint

AFSPA is a legal prophylactic. It provides India’s armed forces and operational adjuncts such as Assam Rifles and Rashtriya Rifles both immunity and impunity in areas that AFSPA is enforced.
India’s Wikileaks-like politics du jour has masked a byplay of a significant magnitude of security and self-respect—at least the perception of it. A public interest litigation is admitted to the Supreme Court challenging the extension of the Armed Forces (Special Powers) Act, (AFSPA) 1958, in Manipur. A bench of the court on 19 October asked the government of India and Manipur to respond by 5 November.
The official response will likely parrot what it has in the past: without AFSPA, currently applied to parts or the whole of most northeastern states, India’s security will continue to be at risk, and the armed forces couldn’t effectively do their job. It will be another exercise in perpetuating myths in the name of national security; in quite the manner a country cousin of AFSPA is applied in Jammu and Kashmir. A sledgehammer where a nutcracker would do, they remain among India’s most controversial laws, nearly on par with separate legislation that anyway permit many states, those affected by the Maoist rebellion as well as those in India’s north and east to, de facto, do what they wish to even non-combatants in the name of law and order.
AFSPA is a legal prophylactic. It provides India’s armed forces and operational adjuncts such as Assam Rifles and Rashtriya Rifles both immunity and impunity in areas that AFSPA is enforced. The sweep includes the standard modus of shooting to kill, if need be, anybody breaching law and order, ranging from a gathering of five or more unarmed protesters to those possessing weapons; to destroying suspected arms dumps and places thought to harbour any manner of rebel or sympathizer. “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area”, do so.
It then leapfrogs to precognition by allowing such personnel to, without warrant, enter premises, search, seize whatever they wish, and arrest whomsoever they wish even on “reasonable suspicion” that “he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest”. This applies also to places “likely” to be used as shelters not only for armed attacks but by “absconders wanted for any offence”. And, for everything, to use “such force as may be necessary.” Such a law encouraged India’s official rage and revenge—including widespread torture, molestation, rape and the killing of non-combatants—in the Naga areas and Mizoram in the 1950s, 1960s, and 1970s. And, later, relatively more isolated cases in Nagaland, Manipur and Assam, because “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.” (At the time of the parent law’s birthing in 1958, a prescient parliamentarian from Manipur described it as “a lawless law”. He was steamrolled.)
Since 2004, several government committees have repeatedly recommended the repeal of AFSPA, arguing that there exists without it, enough legal provision in national security for search and seizure, arrest, interrogation, even a firefight—where police, paramilitary and the armed forces can fire upon other armed or violent combatants. The Justice Jeevan Reddy Committee conducted numerous interviews and sought representation all across north-eastern India from all players—victims to security forces—and submitted its report in 2005, suggesting AFSPA be repealed. The government buried it.
In 2007, the Administrative Reforms Commission headed by Veerappa Moily also suggested the repeal of AFSPA; suggesting instead that the Unlawful Activities (Prevention) Act be bolstered, with a provision to enable the armed forces to operate in conflict zones. The government ignored it.
What such attitude disrespects is the undeniable proof that application of AFSPA has never stopped rebellion—it has instead consistently bred resentment against India by protecting prejudices and atrocities. Too, recent reverses for several key insurgencies in the northeast have not happened on account of AFSPA, but a combination of pin-point and coordinated policing and combat operations; effective Indian diplomacy and changing political realities in countries like Bangladesh, Bhutan and Myanmar that have made regimes there less inclined to harbour anti-India rebels, and creeping realization that active peacemaking, governance, development, and ethno-regional respect are the surest guarantors of India’s internal security.
Those in the security establishment who worry that repealing AFSPA would open a can of worms, as it were, may be better advised to let such insecurities go. The worms—the truths—have been out for decades. Prophylactics aren’t exactly foolproof.
Sudeep Chakravarti is the author of Red Sun: Travels in Naxalite Country and Highway 39: Journeys through a Fractured Land. This column, which focuses on conflict situations in South Asia that directly affect business, runs on Fridays.
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