Extra-judicial killings and AFSPA

Deploying the military on internal security duties for decades makes civic and political freedoms effectively dead, without assuring peace, order, or security

The horrific death of Mangboilal Lhouvum on June 4, 2021, in Manipur, reportedly killed by an army man, has rightly raised widespread concern and anger.

The enormity of Lhouvum’s death demands justice. This, and similar earlier crimes of murder, custodial killing, rape, etc., allegedly by army or police forces, must be urgently and transparently addressed, to bring the perpetrators to justice.

Since there is once again an outcry against the Armed Forces (Special Powers) Act, 1958 (AFSPA), it is pertinent to re-visit the reasons and circumstances under which governments invoke and use AFSPA.

AFSPA

Article 246 in the Seventh Schedule of the Constitution provides for use of the Armed Forces (“military”, hereafter) in “aid of the civil power”. Parliament enacted AFSPA to confer special powers upon a state or central government to notify the whole or some part of a state as a “disturbed area [which is] in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary.”

The introduction of AFSPA indicates that governments need the military “...because state administration became incapable to maintain its internal disturbance” (sic, the word used should be “security”). Governments may thus deploy the military for internal security (IS) duties.

A soldier serves under military law (Army Act, 1950), and AFSPA is the law which authorises him to act in the police role since “... the state administration [politician- bureaucrat-police] became incapable to maintain its internal security”. Police do not need protection under AFSPA.

This is borne out in a 2020 Manipur State Home Department notification, which reads: “In exercise of the power conferred by Section 3 of the Armed Forces Special Powers Act (AFSPA), 1958, as amended [sic] time to time, the Governor of Manipur hereby accords ex-post facto approval declared [sic] the entire state excluding Imphal Municipal areas with retrospective effect from December 1...[because]...the Governor felt that the state is still in the grip of violence perpetrated by extremist or insurgent groups and it is necessary that armed forces remain deployed to help the civil administration ensure order and peace”.

Citizens are denied civil liberties, political and civic participation, and the right to life with dignity when the central or state administrations impose AFSPA continuously over decades, as in several north-east states and J&K.

It is an implicit admission of governments’ political-administrative incompetence and failure, which necessitates invoking AFSPA continuously. Governance by force is unacceptable in a democracy.

In order to break this continuity, the Supreme Court directed that the declaration of “disturbed area” to invoke AFSPA must be reviewed every six months. However, state administrations continue to routinely issue fresh notifications every six months and, as in Manipur, even ex-post facto approval with retrospective effect. By continuously maintaining entire states as “disturbed area” under AFSPA, six months at a time, they are in contempt of the Supreme Court.

Successive civil administrations have proven to be “incapable to maintain internal security”, and therefore use AFSPA to deploy the military for internal security in aid of the civil power.

It is nobody’s argument that governance is easy. However, social disturbance and unrest, including extremism and insurgency, are the cumulative outcome of inappropriate development and socio-economic policies/programmes/projects/ proposals that have increased inequality or caused loss of habitat or livelihood to large sections of society.

This combination of mal-governance and mis-governance by successive governments over decades has necessitated the use of military in aid of civil power for internal security (IS), natural disasters, accidents and even rescuing children fallen into borewells.

Dissonance, dissent and protests are realities in any democratic society. When these are not addressed or resolved using the democratic political tools of honest and transparent dialogue, debate and negotiation, and situations get out of hand, governments resort to using the coercive tools of state police and central armed police forces (CAPF) to maintain law and order.

When law and order is not restored despite the use of state police and CAPF, or because of their misuse, it can only be restored by the deployment of the military in aid of the civil power using AFSPA.

The military on IS duties is to civil society what an ICU is to a critically ill person. A patient surviving in an ICU for many years is effectively dead. The patient needs treatment for the disease and right nutrition to regain normal health. Likewise, the military remaining deployed on IS duties continuously over decades makes civic and political freedoms effectively dead, without assuring peace, order or security in society. India's “disturbed areas” need the “treatment” of honest political effort through transparent dialogue and engagement with people, and the “nutrition” of good governance for their growth.

Strangely, those who agitate seeking repeal of AFSPA never ask why successive central and state governments have continuously been incapable of dealing with a “disturbed or dangerous condition”.

Unfathomably, the SC has not questioned the decades-long continuous deployment of the military for internal security, and successive parliaments and parliamentary standing committees have not found such abuse of AFSPA detrimental to democracy.

No government, howsoever liberal, will repeal AFSPA and forego the option to use the military “in aid of the civil power”, but perhaps they would be open to amending it.

An amendment to Section 3 to limit use of AFSPA to an aggregate of (say) 90 days in a calendar year, will allow governments to retain the coercive option of military deployment to maintain law and order, and prevent governments from imposing AFSPA continuously.

Limiting AFSPA use will help civil societies to recover, and simultaneously release troops deployed on IS duties for their primary role of defending our borders.

Soldiers who commit crimes while under AFSPA must be punished, but the government must be called to account for invoking AFSPA, not the military.

Soldiers under AFSPA and police personnel accused of criminal acts must be brought to justice transparently and without delay. Then the soul of Mangboilal Lhouvum — and others before him allegedly killed, tortured or raped by members of security forces — will rest in peace.

(The writer retired as Additional DG in charge of Discipline & Vigilance, Army Headquarters)