The Indian Parliament espoused the Armed Forces Special Protection Act (AFSPA) in 1958 as an exigency provision that granted exceptional powers to India’s Armed force used by them in the areas termed as ‘disturbed’. The AFSPA ordinance, which was passed in 1958, was revoked and enacted within months as an act. However, it was only intended for Assam and Manipur, where the Naga militants were insurgents. Nevertheless, the formation of new states in 1971 (the former union territories) such as Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA Act to be modified for each of them. It was extended to the state of Punjab, from where it was withdrawn in 1997. The Union territories of Jammu and Kashmir, a state back then, came into the ambit of the act in 1990 and have been under the act’s provisions since that time. The act has faced much flak due to its draconian nature, which gives unrestrained powers to the armed forces to use harsh means without facing any consequences. The following highlighted issues attempt to describe the problematic nature of the act.

Powers to declare disturbed areas 

“If, in relation to any State or Union Territory to which this Act extends, the Governor of that State or the Administrator of that Union Territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area.” (AFSPA, 1958)

An area can be termed ‘disturbed’ by the State or the Central Government based on disputes due to caste, religion, language and race among the communities.

Overruling power is given to the Governor under Section (3) of the AFSPA to notify the centre to send in armed forces in the region, and the ‘disturbed’ region is mandated to maintain the status quo for three months.

The act allows the provision to arrest a person suspected of having committed a cognizable offence without any warrant to recover arms, ammunition and explosive substances and seize them. Legal immunity is also guaranteed to the army officers.

The magnanimity of the powers which is there in the hands of the armed forces in the area that is termed “disturbed” is irrepressible as the officers can practice their license to kill without facing any consequences, this makes the prevalence of pandemonium inevitable and looks like a blot on a democratic nation like India. International actors like the UN and Human Rights Watch have openly criticized the act and have termed it an abusive tool of oppression and discrimination.

Question of democracy and Development

The political opportunity model has posited the focus on the state’s capacity to control and manage interstate and intrastate conflicts where repression and accommodation are the tools to condone conflicts while adopting the methods of repression, the likelihood of capture becomes higher, and the likelihood of a rebellion decreases as the state can identify potential rebels and apply coercion. Accommodation of the grievances through the Incorporation of dissident rights by the state also lessens a rebellion’s chances (Tilly, 1978). Applying the model as mentioned above in the context of AFSPA, it is quite simple to conclude that the army and the supporting agencies have not contrived the conflict. However, it is existing either due to the political leadership failures resulting in its weakness, and the state’s response is to use the army as the ultimate instrument of power.

AFSPA is a draconian measure as it taints democracy by making certain regions feel alienated and violative of their human rights as the citizens of the Indian state. The “Malom massacre” in Manipur presented a grim picture of this legislation where ten civilians were recklessly killed while waiting at the bus stop. (Loganathan, 2019). The government’s reprisal to contain the insurgents’ explosive attack filled the air with staccato fires, which resulted in chaos in the civilians who were shot at randomly by the forces in panic. The act has rendered the democratic values dismantled by systematically causing deprivation of equality in certain “disturbed” regions where it becomes essential to use armed forces in tandem with the civil forces to contain the increased incidences of violence. The people residing in violent affected often find it difficult to relate to their nationalistic fervour. Is securing subservience to the leadership through bullets the only solution to insurgency problems in a nation like India that boasts democracy and diversity across the world?

The question above emphasized the act’s undemocratic nature and marked the culmination of building accountability and responsibility systems without overhauling the concept of democracy from the institutions by giving unlimited powers to individual state institutions. This would ensure that the fundamental rights are not violated in a democracy and would bring back faith in all pillars of democracy. Various political leaders have widely acknowledged that in the “disturbed” regions, anti-army sentiments in the civilians are due to India’s misgovernance. The corruption of police forces and the concerned leadership has made AFSPA a necessary evil to counterinsurgency. This needs to be realized by the government to design legislation to ensure democratic principles in all the government institutions to handle civil unrest situations by targeting the core issues.

Gendered critique of AFSPA

Research studies about the nature of rapes committed against women point that there have been individual cases where the dominant majority has tacitly supported this heinous crime to establish their power (Ranjan, 2015). The Justice Verma Commission report also highlighted the inability of the recalcitrant political establishment to protect the women of the AFSPA affected regions. The report also highlighted that the impunity for systemic or isolated sexual crimes is often legitimized in the garb of Internal security due to AFSPA.

Political spin doctors often give incendiary comments to ensure the fear among the citizens from mainland India and consider AFSPA to be “collateral damage” to secure the country’s territorial sovereignty and integrity (Baruah, 2005).

The intervened nature of rape, security and patriarchy

Sexual violence in the conflict-affected region borne mainly by the women of the affected regions needs recognition as a denial of their guaranteed human rights and should be brought under the criminal law purview, which should be dealt with extreme care concern (Verma, 2013).

Human Rights violation and AFSPA

The Nehruvian leadership was well cognizant about the ‘invasive’ potential that the act had, which would impact the veracity of human rights protection in the country (Dam, 2013)

Security forces have been given powers to the security forces to fire upon or otherwise use force even to cause of death’ under Section (4) of the act, while the sixth section provides for the blanket immunity to the security personnel against any criminal proceeding with matters related to this act.

The more impoverished areas of the ‘disturbed’ regions have to suffer a lot because of the unrestrained violence of the military and paramilitary forces. About hundreds have been absent or in custody, waiting for a trial for years.

An RTI enquiry in 2017 into the data which the Ministry of Home Affairs released revealed that Jammu and Kashmir ranked first in the human rights violations under AFSPA (Das, 2017). The complaints against the armed forces included death in army encounters, fake encounters, and rapes and abduction.

Some studies in the insurgency affected regions of the North-East states point towards the existence of a mafia nexus in the region under which people whose trail cannot be left are abducted and then sold to the armed forces who term those individuals as ‘Naxals’ and often kill them in ‘encounters’ (Bhattacharjee, 2015).

The Paradoxical Relationship of AFSPA and Provision of Security

“Security” means the absence of anxiety upon which the happy life depends’ (Rothschild, 2007) derived from the Latin word securitas, which means an inner type of individualistic condition. The idea of security has been transformed from ensuring collective good through military or diplomatic means during the Napoleonic wars to being subservient to the state, making the state central in ensuring security for its citizens. This definition was again altered by widening its ambit to include the absence of insecurities and guaranteeing freedom from both ‘fear’ (of physical, sexual or psychological abuse, violence, persecution or death) and ‘want’ (of gainful employment, food and health) by adopting mitigative measures((Tadjbakhsh & Chenoy, 2009).

The new definition has made space for the state to adopt violent means by making them legitimate by draconian laws like AFSPA, which legitimize persecution and usage of the citizens’ physical force by the armed forces on the pretext of ensuring security in the country. Dibyesh (2012) posited that the state often constructs new threats by changing the definition of security to legitimize violence by making the state the primary source of insecurity (Bajpai and Pant, 2012). “The Broken families” campaign has highlighted the abusive nature of the act prevalent in Jammu and Kashmir; reports about intimidation of the victim families through security forces to silence them against the abuse have been highlighted through the campaign (Amnesty International, 2017).

Therefore, although, in 2017 the Supreme Court of India issued directions to register FIR in every encounter which will involve the army, regardless of the application of AFSPA in the region (Supreme court, 2017). This would ensure that the army does not get blanket immunity and has made the voice of democracy stronger in the “disturbed” regions. Indian leadership has to understand that bullets will not solve insurgency in the violence-affected regions and have to evolve alternative legislation to control the violence in the ‘disturbed’ regions that would be proactive and humane in its execution. The new legislation’s focus should be to ensure a stringent check of infiltration of potential foreign terrorists, review of the existing laws. A systemic analysis of the decisions taken by the interlocutors appointed in the “disturbed” regions these considerations would result in decreasing the trust deficit between the government agencies and the civilians. They would increase the accountability of the government in addressing the gaps not addressed by AFSPA.

References

1. Ahmad, A., & Desai, W. D. (2018). The Road to Peace in Kashmir: Public Perception of the Contentious AFSPA and PSA. Observer Research Foundation.
2. Ahmed, A. (2011). Reconciling AFSPA with the Legal Spheres. Institute for Defence Studies and Analyses.
3. Das, S. (2017). Jammu & Kashmir tops list on rights abuses under AFSPA, Assam second. The Mint. Loganathan, S. (2019). The AFSPA- A Taint on Indian Democracy. The Wire.
4. Ranjan, A. (2015). A Gender Critique of AFSPA: Security for Whom? SAGE
5. Saikia, D. S. (2014). 9/11 of India: A Critical Review on Armed Forces Special Power Act (Afspa), and Human Right Violation in North East India. Journal of Social Welfare and Human Rights, 265-
6. Vijayavargia, P. (2014). AFSPA and Human Rights. Journal of Politics &

Umang Vats

Umang Vats is currently pursuing her Masters in Disaster Management at Tata Institute of Social Sciences, Mumbai. Her interest lies in Social Advocacy, Disaster Recovery, Machine Learning, Conflict Management, Research and Disaster Response.

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