Introduction

“National Security lies not in protecting our borders but in reversing the substantial erosion of civil liberties.” – Theresa May

The Indian Government, to deal with the 1958 Naga insurgency, enacted the Armed Forces (Special Powers) Act of 1958. AFSPA aims to protect armed forces and carry out operations in conflict prone areas. The Act was implemented in the Northeastern states of Mizoram, Nagaland, Assam, Sikkim, Jammu and Kashmir to support national security ideals and to address internal rebellion, and insurgency. It calls for special powers to be granted to armed forces personnel in disturbed areas (declared under the Disturbed Areas Act of 1976). Northeastern states are generally governed by these laws to eliminate armed opposition and prevent militarization, political violence, ethnic conflict and assert sovereignty. The issue is reemerging due to the mistaken assault on civilians in Nagaland by army officials on the fourth and fifth of December, 2021. Based on this, fourteen individuals lost their lives and violent protests caused the state to be declared a “disturbed” state. On the twenty-sixth of December the Nagaland CM set up a committee to withdraw the Act and submit its report in forty-five days. After this, on the thirtieth of December, the Union Home Ministry extended the Act by six months.

Problematic Provisions

This draconian statute consists of six provisions of which the major problematic provisions include sections 3, 4 and 6. Section 3 enables both the state and the central government to designate an entire state or any part of it “to be a disturbed area” if it is in such a “disturbed” or dangerous situation that the use of military troops becomes necessary. Although the SC in Naga People’s Case emphasized that the declaration of a “disturbed” area must be for a limited time and the declaration must be reviewed every six months to determine whether it should be renewed, this wide discretionary power enabling provision is silent on the duration of a declaration and any subsequent administrative review. A situation must exist in which the assistance of armed forces is required in aid of civil power and the concerned authority must be convinced that a region is in such a “disturbed” or dangerous state that the employment of armed troops in support of the civil power is necessary. However, the recent unfortunate killings of miners in Nagaland, wherein the civil authorities were unaware of the armed forces actions, highlights the big problem of accountability. Section 4 gives special power to officers, including non-commissioned officers, to use lethal force, shoot, arrest, and perform a search & seizure against anyone acting in violation of any law or order currently in effect in the “disturbed” area. It also prohibits gatherings of five or more individuals and the carrying of firearms. The delegation of such broad authority is unreasonable and arbitrary, and the Apex Court has failed miserably on the act’s most serious flaw. As things stand, even an unarmed curfew violator can be shot out of nowhere. Insistence on force proportionate to the occasion does not limit the amplitude of the power to cause death. Except with the prior consent of the Central Government, Section 6 gives blanket immunity to persons from prosecution, suit, or other legal proceedings in relation to anything done or purportedly done in exercise of the powers provided by the Act. Even if disproportionate force is used, the officer in question can get away with it if the central government refuses to prosecute.

Lawsuit and Lost Hope: Judicial Approach towards Interpreting AFSPA

AFSPA has always been highly criticized on the basis of having abusive, oppressive immunity provisions and violating human rights. It is often considered unconstitutional and violative of Articles 21, 14 and 22 along with the basic rights of individuals. The Act has received international criticism from the United Nations Human Right Commission, who recommended repealing it. In the landmark case of Naga People’s Movement of Human Rights v. UOI, the court dealt with the constitutionality of the Act. Emphasis was laid on the need to strike a fair balance between citizens’ rights and public order. Following this, the Justice Jeevan Reddy Commission in 2004, the Second Administrative Reforms Commission in 2007, and the Santosh Hegde Committee of 2013 reviewed the workings of AFSP and recommended replacing it with a legal framework in line with other criminal codes. Supplementing the implementation of the Act, the court in Extra-Judicial Victim Families Association (EEVFAM) v. Union of India, seeks to fill the voids and gaps in the legal provisions rather than striking away at the very law. To determine the threshold of the insurgent Act, the court relied on Indra Das v. State of Assam, wherein the right to defense and burden of proof for illegitimate use of force provides a restrictive use of freedom of operation. The judgement lays down “Do’s and don’ts” of application of AFSPA. Despite the arrest being lawful under Section 4(c), many courts have focused on the delay to release the accused arrested under Section 5 as in Nungshitombi Devi v. Rishang Keishang, CM Manipur.

New Controversy Raising Old Issues

The draconian powers under AFSPA have led to international concerns, as it strikes at the very essence of many international human rights instruments such as the UDHR and the ICCPR, to which India is a signatory. Article 51(c) of the Indian Constitution says, “The State shall attempt to develop respect for international law and treaty responsibilities in the interactions of organized people with one another.” Despite this, India has failed to adhere to international standards in the area of upholding right to life and liberty under international law and has made reservations to key sections of relevant treaties such as the ICCPR’s Article 9. Sections 4 and 5 of the impugned Act go against the principle established under Article 9 that prohibits arbitrary arrest and detention. Article 9 additionally seeks for anyone arrested or imprisoned on a criminal charge to be brought before a judge or authority authorized by law to exercise judicial power as quickly as possible. On that note, Section 5 of the impugned Act fails to comport with this principle, as it uses the term “least possible delay.” But as Amnesty Reports suggests, armed forces often disobey this order, detaining people for longer than the allowed period before giving them over to the police. The sweeping powers under Section 4 further violate Article 6 of ICCPR which requires steps to be taken by parties to prevent and punish illegal deprivation of life and arbitrary killing by security personnel.

Termed as “sketchy, too bald and quite inadequate”, the Act has received criticism among people at large. From a national necessity to a human rights approach, AFSPA has been controversial due to the lack of transparency and indefinite deployment of the “disturbed” area status. The provisions leave a wide gap for misuse and less accountability in terms of powers vested to the officials. With its constant failure to restore normalcy in the nation’s interest, it has been considered a “tool of state abuse, oppression and discrimination.” Irom Sharmila (Iron Lady of Manipur), despite the 16 year hunger strike against AFSPA in Manipur, has not been an eye-opener for the Act to be amended. Despite her efforts, the draconian AFSPA continues to be “a symbol of hate, oppression, and instrument of high-handedness.”

Recommendations and Conclusion

While an overall abrogation is not suggestable, some amendments could be the way to go. An advisory committee or Board could be set up for the overall administration of the Act. Guidelines or standards should be laid out to determine the duration of declaring an area to be “disturbed”. A subjective and objective test for declaring a “disturbed” area could be formulated as a system of checks and balances. The recent Nagaland issue highlights the problem wherein the security forces mistook the civilians as militants. Failed accountability and transparency in the legal framework is the gap to be bridged. Apart from this, the role must be divided among various organs of the government rather than restricting it to the Central Government, enabling a check on the misuse of power. The vague use of the term “least possible delay” to present an arrested person before the police should be replaced  with “within 24 hours” which would align with the 1997 judgement of the Supreme Court, wherein it ruled that arrested persons should be produced before a magistrate “within 24 hours”. While the Act has surrounding controversy in the current form, an amendment along these lines would be beneficial to ensure full compliance with international human rights treaties to which India is a signatory, as the existence of a legal framework in this domain is a necessary evil.

Kosha Doshi and Bandana Saikia are third year law students at Symbiosis Law School in Pune, India.

Suggested citation: Kosha Doshi and Bandana Saikia, The Case of Nagaland: Addressing Controversial Provisions of the Armed Forces Act in India, JURIST – Student Commentary, February 4, 2022, https://www.jurist.org/commentary/2022/02/doshi-saikia-armed-forces-act-nagaland-india/.

This article was prepared for publication by Rebekah Malkin, a JURIST staff editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org