AFSPA, the Law That Allows Incidents Like the Nagaland Killings to Occur

A culture of impunity engendered by the AFSPA has made it easy for security forces to get away with several human rights violations.

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On Saturday, December 4, Indian Army personnel shot and killed what is now a toll of 15 civilians in Nagaland. Authorities later announced that the killings occurred during a military operation. The indiscriminate killing of people provoked demonstrations with appeals for upholding justice and human rights.

To understand why such cases occur, we must first understand the law that allows such incidents to occur.

Dark history of AFSPA

The Union government, in agreement with states, uses a controversial legislation to deploy armed forces in “disturbed areas” of the country to “support” state governments. This legislation, called the Armed Forces Special Powers Act (AFSPA), has a dark history.

Among the many provisions that are cause for human rights concerns, AFSPA has provisions that allow for rare circumstances under which accused personnel can be tried in a court. AFSPA has established a culture of impunity that allow military forces and governments to completely disregard human rights and the rule of law. Allegations of human rights abuses under AFSPA include personnel committing rape, using human shields on army vehicles, fake encounters, and disappearance while in custody.

In the recent past, a daily wage worker died after being shot at by a major of the Assam Rifles. The man, a father of four children, was suspected to have been detained without a warrant – a draconian feature permitted by AFSPA.

Locals at a ceremony to pay last tributes to the 13 people who were killed by armed forces, in Mon district, Monday, December 6, 2021. Photo: PTI

AFSPA, as discussed earlier, is a legislation which the Union government or a governor of a state or Union Territory uses to deploy armed forces in “disturbed areas”.

A disturbed area, according to the Act, refers to when an area “is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary”.

This essentially allows the Union government to use the Army or the Central Armed Forces in anti-insurgency operations against militants. In the past 12 months, it has been in force in the states of Assam, Arunachal Pradesh, Manipur and Nagaland. An identical legislation has been in force in the Union Territory of Jammu and Kashmir since 1990.

AFSPA does not have sufficient safeguards to ensure that the personnel conduct operations in a manner which conforms to standards on the use of force in conflict areas. When service personnel commit crimes while on duty, they are rarely held accountable. Accused personnel cannot be prosecuted in a criminal court unless the Union government or a state government agrees to give authorisation to prosecute them.

To make matters worse, despite the presence of substantial proof, internal investigations conducted by the Indian army and the ministry of defence have continually dismissed these claims. Only 70 personnel have been “punished” so far. This is a dismal record given the number of complaints against armed forces personnel. Another source of worry is that attempts to obtain information on the Indian army’s actions have been rejected.

As a result of this culture of impunity, there have been numerous complaints of human rights violations, which the citizens have brought to the attention of the courts. One of these is the EEVFAM case.

The case of EEVFAM vs. Union of India documents 1,528 instances of extrajudicial executions. UN human rights experts define these executions as “the deliberate killing of individuals outside of any legal framework”.

A Supreme Court-appointed commission, entrusted with reviewing a part of these cases, concluded that none of the victims who were killed or disappeared had any criminal history.

After that, the Supreme Court established a SIT (special investigation team) to investigate a number of these instances further. As of today, progress in the investigation has been incredibly slow, with none of the accused personnel being formally tried for the crimes they are accused of.

The unfortunate fact is that governments have been consistently allowed to get away with gross human rights violations by citing “national security” as a justification. To guarantee that victims of AFSPA get justice, the Union government must repeal or, at the absolute least, amend the provisions of this draconian Act.

Citizens in AFSPA-imposed regions have long advocated for this, and it is a demand that we will continue to advocate for.

Jade Lyngdoh is a Constitutional Law Honours candidate at National Law University, Jodhpur, and has research interests in human rights and free speech. Follow him on Twitter @jadelyngdoh_