In the wake of the terror attacks on Mumbai city in end-November 2008, I was requested to move from the Ministry of Finance to the Ministry of Home Affairs. I confess I was reluctant to do so because I had nurtured the hope that I will complete five years as Minister of Finance in May 2009. However, I quickly realised that it was a call to duty that I was bound to obey. I moved on December 1, 2008.
Very early in my tenure, I was confronted with passionate pleas to lift the Armed Forces (Special Powers) Act, 1958 (AFSPA). Under the Act, the Central government may declare an area to be a ‘disturbed area’ and apply the Act to that area. Similarly, in eight states, the Governor (read state government) may exercise that power. The Act does not stipulate a time limit for the continuance of the declaration. However, the Supreme Court intervened and obligated the government concerned to review the declaration before the expiry of six months.
That obligation gave little comfort to rights’ activists because once the Act had been applied, state governments were loath to end the declaration. For example, Manipur has periodically notified and applied the Act since the 1980s. Assam has reviewed and renewed the declaration every six months since 2017. The Central government has regularly notified the ‘disturbed areas’ in Nagaland (the whole state) and in Arunachal Pradesh (three districts plus two police station areas).
Intent Immunity, Effect Impunity
The State (Central or state government) is beholden to the Armed Forces — the Army, the Air Force and the Central Armed Police Forces. They are the decision-making powers. Where the Army is deployed, the real power is with the Army. I had analysed the Act in a column in these pages (The Indian Express, May 3, 2015). The powers enjoyed by the Armed Forces under the Act are, to put it mildly, draconian. The powers include the power to destroy any shelter or structure, to arrest without a warrant, and to search and seize without a warrant. Each one of these powers is contrary to the ordinary law — the Code of Criminal Procedure — except under narrow and special circumstances. The harshest power is the power conferred on a police officer, if he thinks it is necessary, to fire upon a person in an assembly of five or more, even to the causing of death.
The case against AFSPA is that Armed Forces personnel do not pause to reflect whether the use of force — often, lethal force — is avoidable. Once they are in a situation of conflict, they do not weigh the options; they use maximum force. Section 6 of the Act gives the Armed Forces personnel immunity against prosecution. The reality is the provision encourages Armed Forces personnel to act with impunity.
It is a matter of common knowledge that even normal police powers are misused. Quite often, such misuse is sanctioned by State policy — as, for example, in Uttar Pradesh where ‘encounters’ are embedded in the law enforcement policy and proudly advertised! In a state which is declared as a ‘disturbed area’, the Armed Forces function under extreme stress and AFSPA becomes a weapon.
Strong Case for Repeal
The demand for repeal of AFSPA is an old demand. In 2005, the Justice Jeevan Reddy Committee recommended its repeal. That view was endorsed by successive commissions and committees. The last was the Justice J S Verma Committee that underlined the imminent need to review the continuance of AFSPA.
In my view, it is imperative to repeal AFSPA. There are other, and subsequent, laws to deal with militancy and terrorism such as the Unlawful Activities (Prevention) Act and the National Investigation Act. In fact, with the experience of implementing UAPA, there is a compelling case to review that Act too. The repeal of AFSPA is long overdue.
The case of Assam is instructive. In 2017, the Ministry of Home Affairs asked Assam to remove AFSPA altogether or reduce the areas where it applied. Assam refused. In 2018, the Standing Committee on Home Affairs asked Assam why it was necessary that the whole state should be declared a ‘disturbed area’ against the advice of the MHA. There was no convincing explanation.
Authoritarian government & law
After 13 civilians were killed on December 4, 2021 (in a case of mistaken identity, for which the Army has apologised), the chief ministers of Manipur, Nagaland and Meghalaya have demanded the repeal of the Act. The plea of Manipur is ludicrous: it is the state government that has applied the Act and nothing prevents the Chief Minister from rescinding the notification.
The fact is that governments have become more authoritarian since 2014. As an inevitable consequence, the police — and the Armed Forces when deployed for internal security — have become more authoritarian. AFSPA, intended to be a shield, has become a weapon. There are voices within the Armed Forces that support the repeal of AFSPA but they are, regrettably, silent.
As Home Minister, I supported the repeal of AFSPA. Alternatively, I pleaded for amending the Act. I failed, and I have narrated the story in my 2015 column. Today, we have an authoritarian government, an authoritarian Prime Minister and an authoritarian Home Minister. The chances of repeal, or even amendments, are zero. The only recourse is the Constitutional Courts.