Time for a Change? Looking Forward at the Armed Forces Special Protections Act

Earlier this week, amid much controversy, the Indian government renewed the Armed Forces Special Protections Act (AFSPA) in Nagaland for the next six months. The controversial act allows the Indian military to search, raid, and arrest without the authorization of the local civilian government or fear of prosecution. While proponents of renewal cite a history of violence and an ongoing illicit economy, the act has been subject to criticism from human rights groups and representatives of the Naga people. The controversy surrounding the AFSPA only continues to grow as India reaches its twentieth year of ceasefire with the region’s largest separatist group.

The AFSPA originated in British India, as a means to suppress Gandhi’s ‘Quit India’ movement in 1942. The act gave the military special powers to suppress dissent and act with impunity by shooting to kill, arresting without pretext, and conducting warrantless searches. Years later in 1958, Prime Minister Jawaharlal Nehru brought back the AFSPA to fight the Naga Insurgency in the northeast. Although the peak of fighting has long since passed, and prominent Naga rebels have committed to ceasefire agreements, the government continues to label Nagaland a ‘disturbed’ area and renew the AFSPA.

Over the years, India has expanded the AFSPA to combat a variety of insurgencies. In the Northeast, the act which originally pertained to the states of Assam and Manipur was expanded to the states of Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram. In 1983 the central government passed an AFSPA for Punjab and Chandigarh, in order to address the Khalistan movement that fought for Sikh independence. In 1997, the AFSPA was lifted from Punjab and Chandigarh. Lastly, in 1990 the government passed the Armed Forces (Jammu and Kashmir) Special Powers Act to deal with increasing militancy in the region.

The government’s position is justified by a need to contain the simmering insurgent groups that have occupied the region for decades. Naga separatists have been accused by the center of continued “extortion, area domination, [and] recruitment”. In 2015, a faction of the area’s largest armed group, the National Socialist Council of Nagaland (IM), separated from its parent group to form the National Socialist Council of Nagaland (K). The NSCN (K) breached the longstanding ceasefire with the government by killing 17 soldiers in an ambush. The military’s position is that counterinsurgency without the AFSPA would be akin to operating with “a hand tied behind the back”, and put the Indian military at a significant operational disadvantage.

Supporters of the AFSPA claim that repealing the act would empower militants by undermining the government’s commitment to the region. The Institute for Defense Studies and Analysis, a Delhi-based think tank, writes that in many areas, the civilian administration might be biased in favor of the militants and act as a roadblock to military progress. Former Lt General Mukesh Sabharwal and other military officials have consistently claimed that allegations of abuses under the AFSPA are exaggerated or fabricated, and that the military has an incentive to self-regulate in order to not fuel the insurgency. Courts have largely upheld the AFSPA, but added provisions that the military “use minimal force required for effective action.”

Critics oppose the AFSPA on the grounds that it enables the military to violate human rights and civil liberties. According to a highly critical Amnesty International report, thousands of innocents have died at the hands of military personnel during the implementation of the AFSPA in Manipur and surrounding Northeastern States. The report continues that the act has allowed for a consistent pattern of human rights abuses by the military, which is not held in check by any civilian authority. The military has also been consistently accused of torture and ill treatment of citizens in India’s Northeast. Human rights groups cite that fact that in the 54 years of AFSPA implementation not a single military official has been disciplined as proof that the army is functionally immune to accountability.

The Naga State Assembly and many major Naga civil society groups have asked the government to withdraw the AFSPA. They cite the aforementioned human rights abuses, but also claim that it is time for Nagaland to fully return to civilian rule. Between 2002 and 2010, the total number of military personnel killed was less than 20, and even with the recent uptick in violence it seems as though the situation is stable enough for civilian self-governance. Decades of the government’s failure to grant the Naga people with the same constitutional rights and due processes as the rest of India has created a climate where the Naga people feel like second-class citizens.

In Kashmir, much like in the Northeast, there have been renewed calls to end the AFSPA. Chief Minister of Jammu and Kashmir Omar Abdullah has called repeatedly for repealing the AFSPA on the grounds that it is no longer needed to provide security. Advocates for repeal cite the precipitous decline of conflict casualties from over 800 in 2001 to under 100 in 2016. Despite declining violence, Human Rights Watch and Amnesty International continue to cite ongoing violations of civil liberties, due process, and killings by the Indian military in Jammu and Kashmir under the AFSPA.

Although progress has been slow, the movement to repeal the AFSPA is gaining traction. Last year, in a landmark case, the Supreme Court ruled that the AFSPA could not justify “excessive and retaliatory force” unless in direct contact with a terrorist. The supreme court is also currently reviewing over 1,500 alleged extrajudicial killings which occurred in Manipur. Advocates for repeal were heartened by the court’s edict that ‘every case must be investigated’, apparently demonstrating a commitment to the due process of the Manipuri people. The court is waiting on human right groups to sort through poorly kept records in order to organize and determine the number and nature of killings that occurred. The AFSPA was also repealed in Tripura state, where the national government acknowledged local leaders’ claims that a waning insurgency no longer justified military immunity.

The AFSPA has also been accused of being counterproductive and inflaming the local population. Illiberal, suppressive policies encourage insurgency by making civilians distrust the government and become less likely to pursue political solutions to their problems. For rebels, the constant human rights abuses and culture of military rule that has persisted for decades justifies their violence against the government. In Manipur state, which is also subject to the AFSPA, local leaders claim that there were “only four insurgent groups when the draconian AFSPA was introduced … and the number has gone up to 32 since.” It is very possible that the AFSPA has outlived its usefulness, and should be repealed before it creates more distrust and ill will towards the central government.

The only way to test the strength of either side’s claims is to experiment with a rollback of the AFSPA. A rollback would allow the government to weigh the harms to human rights, violations of civil liberties, and strains to local relations with the military’s supposed need for security. If, unlikely as it seems, conflict begins to reignite and Nagaland threatens to devolve into fighting, the central government’s case for strong military action may be justified and rollback can be stopped. On the other hand, like if in Tripura the region remains stable, then it will validate the claims of local leaders and human rights groups. After evaluating the impact of rollback not seeing a substantial escalation in violence, military leaders should have no issue with giving up their immunity, because it will not jeopardize the lives of Indian soldiers. For both the government and the local population, rolling back the AFSPA provides an opportunity to test the strength of the peace and return the region to normalcy.