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Why the government must not repeal Afspa

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One of the more underreported success stories of the Narendra Modi government has been scripted in India’s Northeast. A lower level of violence, a drop in civilian killings, many accords with militant organisations, and a faster pace of development in the seven states in the last five years are a testimony to the government’s special attention to the region since it assumed office in 2014.

One constant source of criticism in the Northeast against the central government was the widespread imposition of the Armed Forces (Special Powers) Act (Afspa), 1958, in insurgency-prone areas.

The Act, first promulgated under the British in 1942, but later passed by Parliament in 1958 after a Naga group rose in armed revolt, has been applied in almost all Northeastern states with varying geographical spread and durations.

In 1990, Afspa was also extended to Jammu and Kashmir. Imposed in areas declared disturbed under the Disturbed Areas Act, Afspa came to acquire negative connotations. However, any discussion on the law was often clouded by emotions, distrust, and even a lack of understanding about the procedure under which Afspa is applied.

In this context, the recent step taken by the Union home ministry under Amit Shah in announcing the removal of the Disturbed Areas Act from several districts of Assam, Manipur, Nagaland, and Arunachal Pradesh must be welcomed. The removal of the Disturbed Areas Act from these areas automatically renders Afspa inoperable in these districts.

The new initiative comes on the back of improved law and order and rapid development in several areas of the region. Now, the majority of Assam districts will be free of the tag. In Nagaland, 15 police stations under seven districts will be free of Afspa. It is likely to be withdrawn further from other parts of the state in a phased manner. Similar steps have been taken in Manipur and Arunachal Pradesh. Tripura and Meghalaya removed the Disturbed Areas Act entirely in 2015 and 2018.

This will mark the beginning of a more peaceful phase in the region’s history. Going by this trend, one can be optimistic about further progress in the coming years, taking care of a long-standing demand of civil society and human rights organisations to free the Northeast of Afspa.

There have been several calls to repeal Afspa. The assumption is that the cause of all ills plaguing the Northeast over several decades was Afspa and all the perceived immunity it provides to the Indian Army. However, nothing is farther from the truth. Afspa is merely an enabling act that empowers security forces to operate in insurgency-affected areas. As long as the area remains disturbed, the need for Afspa remains. It affords minimum essential legal protection to members of the armed forces to ensure the fulfilment of constitutional obligations. In addition, Afspa has provisions that the central government can sanction prosecution or other legal proceedings against personnel who act in contravention of applicable laws and standard operating procedures.

Some years ago, Afspa’s provisions came up for scrutiny before a Constitution Bench of the Supreme Court (Naga People’s Movement of Human Rights Vs UOI). The five-judge bench dealt comprehensively with the challenge to the legality of deployment of the armed forces in aid to civil power. The court had then unambiguously ruled that Afspa cannot be regarded as colourable legislation or a fraud on the Constitution.

The apex court said that the conferring of powers vide Section 4 of Afspa could not be held as arbitrary or violative of Article 14, 19, or 21 of the Constitution. It also allowed the armed forces to retain the weapons seized during the operations in their custody rather than hand them over to police authorities.

Similarly, just as Section 45 of the Code of Criminal Procedure disallows the arrest of public servants and as Section 197 provides immunity against prosecution, Section 7 of Afspa gives similar protection to the Army personnel. And yet, most opponents of the Afspa have chosen to either downplay or completely ignore this similarity.

So, what is the way forward?

Lifting Afspa in many areas is welcome, but the provisions of Afspa as an emergency law that empowers the Army — the nation’s instrument of last resort — must continue to remain on the statute books given the increasingly violent and uncertain times that the subcontinent is likely to face in the coming years.

Repealing it will weaken the mechanism to deal with extremist threats. When needed, it must be applied in small doses. Every country has to balance the need for a stringent law with the basic principles of ensuring human dignity and human rights.

Nitin A Gokhale lived in and reported various insurgencies from the Northeast between 1983 and 2006 The views expressed are personal

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