Thursday, July 7, 2022

Lamentations on the afspa fallacy

On 5th December 2021 at Oting, Nagaland, India, consequent to the tragic killing of six innocent civilians on Dec. 4, 2021, and the ensuing violence which led to seven more civilian deaths and one army personnel, there lay on the table during funeral rites a sum of Rupees Eighteen Lakh as ex-gratia from the Nagaland Government for the lives of 13 Naga villagers that were shot down by the 21 Para Special Force of Indian Army. Thus, the precious lives of 13 Naga innocent men have been reduced to worth a sum of money of Rs. 18,00,000/-, to be split among the bereaved families. The victims were coal miners returning towards home in the cold winter evening as their family members sit around the fireplace warming up food for dinner, waiting for the father who never came home again. Cease fire between the government of India and the Naga army who are popularly known as ‘the underground’ is in force for almost 26 years. The army though in a statement has expressed ‘deep regrets’ over the killings; yet the government of India is not known to have taken any measures of ex-gratia or relief to the family of the victims. The local civil societies demand the trial of the officers and jawans involved in the massacre in an appropriate court. A 22 member high level Special Investigation Team (SIT) of Nagaland State Police has completed investigation and submitted its charge sheet finally indicting 30 Indian army personnel, including a Major. A counter terrorism law known as Armed Forces Special Powers Act (AFSPA) is in force in Nagaland which prohibits any legal prosecution against any army personnel in respect of anything done or purported to be done in exercise of the powers conferred by this Act, without the previous sanction of the Central Government.
Today, for once again in the history of this great nation of India, something more is on trial than the fate of the Indian army personnel charge sheeted and the victims of the Oting massacre: that is the Constitutional Law of India. If the State declares that by implementation of the law of AFSPA, such killing of any people of Nagaland on suspicion is justified then the Constitutional Law of the land is itself convicted in the moral tribunal of conscience, natural justice and human rights. Personally and without prejudice to none, applying my mind as a lawyer with reference to Article 34 of the Army Act, 1950; and, Article 33 of the Rome Statute of 1998, it doesn’t seem right to entirely blame the soldiers involved in the Oting incident to have in their own capacity committed a criminal offence because of the obvious question of the duty of military obedience of superior orders or of the Government; should he obey the order, at the risk of being held responsible for the commission of a crime, or should he ignore the superior order and risk being punished for military disobedience. A soldier who refuses to obey an order which is deemed legal from the standpoint of the Constitution of India may well find himself before a firing squad after being court martialled by his own State. A soldier is thus caught in a dilemma. However, a subordinate may be held responsible together with his superior, when he knew or should have known that an order to shoot was illegal or when the illegality of the order is manifest. Inference can be drawn that both the Indian army and the Naga people are only enemies by chance, as Rousseau said, “War is in no way a relationship of men with men but between the states, in which individuals are only enemies by accident, not as men, but as soldiers…, logically, that soldiers may only be fought as long as they themselves are fighting. Once they lay down their weapons, they again become mere men. Their lives must be spared.”
The case of Chandra Singh Garhwali of 1930 is a relevant eye opening case-study with regard to the conduct and liability of the Indian army in their explorations in the conflict-ridden present Nagaland, where mostly an army men comprising of mainland Indian origin has been deployed to counter insurgency operations in a minority Indo-Mongolian race that lack linguistic and cultural commonality, and equipped with an offensive anti-terror law that protects the armed forces from prosecution; under such circumstances there are scope for violence and disharmony unless the army men are guided upon by right conscience and brotherhood feelings like that of Chandra Singh Garhwali. In order to crush a group of Pathans largely comprised of Muslim protesters who were leading the Indian freedom movement by non-violent resistance organised by Mahatma Gandhi, the British selected a Hindu military regiment that did not belong to that region hoping the soldiers would follow orders of crushing the Pathan-Muslim revolters. The then British Captain Ricket asked Chandra Singh Garhwali to fire upon the non-violent protesting Pathans. Garhwali refused to obey the superior orders of British officers to open fire, thereby preventing another massacre on the scale of Jallianwalla Bagh. When the British captain demanded why Chandra Singh was not firing against the Indians, he replied, “These people are unarmed, how can we fire on them?” The British thought that lack of linguistic and cultural commonality between soldiers and local population will ensure that soldiers suppress dissent in ruthless way. The consequences of Garhwali’s disobedience to superior orders, he and his fellow soldiers were taken to custody and a court marshal awarded death sentence for him, which was later turned to life imprisonment. This case is ‘a thing that speaks for itself’ of the consequences attributed to the services of the armed forces.
The root of evil is in the law of the Armed Forces Special Powers Act (AFSPA); the Act which was promulgated as a counter terrorism law has been framed with such vagueness that the law prominently characterise more of a motivated aspiration and enthusiasm to kill or to harm, thus provoking more fear and hatred in the minds of the belligerents’.
The legislation of the Act is so unbridled and unrestricted as such is capable of arbitrary exercise of power by enforcement agencies and possibly this can be used as an instrument to vent their anger or revenge upon the targets. The AFSPA is a random British law that was used as an experiment by the Colonial British Government to crush the unity and sentiments of Indian people whereby the British incessantly were forced to use this particular law as a measure of last resort in their losing battle until finally they left India for good in 1947. The AFSPA in itself and the working system of the law has destroyed the basic structure of the Indian Constitution in as much as the provisions of the fundamental right to life and of liberty, and, the fundamental principle of natural justice that that no man shall be condemned unheard has been opposed directly and therefore is a fraud on the Constitution in terms of Article 13; furthermore, the possibility for violation of human rights has been kept open which is in contravention to the Universal Declaration of Human Rights (UDHR) and the International Protocol on Civil and Political rights (ICCPR) and other treaties of the United Nations (UN) to which India has acceded over the years.
All of the successive government from 1958 – the year when AFSPA was imposed against Nagaland region, and to the present government have upheld AFSPA to continue as a ‘test’ to counter terrorism even though experiments with this kind of emergency and extra-ordinary law for over 60 years seems to have brought nothing laudable to its homeland other than criticisms and counter attacks.
The government of India seems to be taking refuge from the fact that the Hon’ble Supreme Court of India in 1988 has upheld the constitutional validity of the AFSPA; however, the valid problem lies in the ground reality, the actual working system. Introspecting into the acts of atrocities, on record, committed upon the civilian Nagas with the application of this bad law, it is ‘sadful’ to note that the Republic of India, regarded to be the largest democratic country in the world, continues to violate the international humanitarian law and the conventions for peace and humanity adopted thereafter. In the past, the government of India has appointed various committees to review and study on the working system of AFSPA to which all the committees/commissions has discouraged the continuation of AFSPA, and recommended the law be repealed.
In 2004-05, the Central Government established a five member committee headed by Justice BP Jeevan Reddy to review the AFSPA, wherein the committee recommended that the Act should be repealed, saying the continuation of the present Act with or without amendments does not arise, and that the constitutional validity upheld by the Supreme Court is not an endorsement of the desirability or advisability of the Act. Again, in 2007 the Second Administrative Reforms Commission appointed by the President of India and headed by Veerappa Moily, upholding the recommendations of the Justice BP Jeevan Reddy Commission, suggested AFSPA be repealed. In the same year the then Prime Minister of India, Dr. Manmohan Singh appointed the Chairman of Minorities Commission, Mohammad Hamid Ansari, to review on the working group on confidence building measures in Jammu & Kashmir, and the group suggested that certain laws like AFSPA impinge on the fundamental rights of citizens and adversely affect the public, and recommended that these laws be revoked. In June 2011, the Government of India announced a high-powered task force known as the Naresh Chandra committee, which included retired Air Chief Marshal S. Krishnaswamy, retired Army General V. R. Raghavan and former Atomic Energy Chief Anil Kakodar, as members to review the defence management in the country wherein on May 2012 it submitted a key recommendation that the AFSPA should be watered down. In 2013 the Central Government constituted Justice Verma Committee to suggest amendments to laws relating to crime against women has recommended review of the continuance of the Armed Forces (Special Powers) Act (AFSPA) in the context of extending legal protection to women in conflict areas and recommended that requirement for prosecution of armed forces personnel for complaints of sexual violence should be excluded from previous sanction of the Central Government and must be tried under ordinary criminal law. On record, the Hon’ble Mr. RN Ravi, former head of Intelligence Bureau and former Governor of Nagaland, and the present Governor of Tamil Nadu has commented that AFSPA is the biggest obstacle to peace in the region.
Again, the Supreme Court appointed a high powered commission headed by J. M. Lyngdoh and Dr. Ajai Kumar Singh, and the committee in its March 2013 report has observed the reality fake encounters and extra judicial killings which are egregious examples of gross abuse of AFSPA.
On the contrary, there are concerns from the frontline officers and soldiers of the Indian army posted in sensitive regions that believes that AFSPA as a very strong law which provides protection to the soldiers. In 2018, nearly 700 Army officers and soldiers have approached the Supreme Court against the so-called dilution of AFSPA, which shielded them from prosecution without the central government’s nod, which however was turned down. Former Army Chief Gen. Bipin Rawat, in 2018 has asserted that “I do not think time has come to even rethink on AFSPA at the moment,” when asked about reports that the government was re-examining the demand for a milder version of AFSPA. Former Home Minister, Mr P. Chidambaram, in his lecture at the Institute of Defence Studies in Feb. 2013, has said that the Government cannot even make the Armed Forces Special Powers Act (AFSPA) more human because the army does not want it diluted, leave alone repealed. “We can’t move forward because there is no consensus.” The present and former Army Chiefs have taken a strong position that the Act should not be amended (and) do not want the government notification to be taken back. In 1991, when India presented its second periodic report to the United Nations Human Rights Committee, the Attorney General of India relied on the sole argument that the AFSPA is a necessary measure to prevent the secession of the North Eastern States and that a response to this agitation for secession in the North East had to be done on a ‘war footing’.
Army Chief General MM Naravane, in a recent 2022 interview has said that the argument on repealing the Armed Forces Special Powers Act (AFSPA) needs a different approach, wherein the Disturbed Areas status of States needs to change. Taking the example of Tripura, where the act was repealed, Naravane said that repealing AFSPA from Nagaland is a decision of the State Government and Centre but added that the Army will be ‘most happy’ if the Army is relieved from its policing duties in disturbed areas so that it can focus on its primary role of fighting a conventional war.
In time, the government of India have been pressured to repeal several anti-terrorists laws because of the unpleasant human rights abuse and excessive infringement those laws had on the personal liberty and right to life of the citizens. In the purpose to suppress threats to national unity; these controversial laws have been used continuously to arrest and detain people without a warrant and in most cases harassments were given to people who oppose the ruling government, for instance the A.K. Gopalan’s case.
The Preventive Detention Act which was passed in 1950 for preserving national security and defence was abolished in 1969, because it was criticised heavily for allowing prevention detention during peacetime, regardless of safeguards embodied in the law. Preventive detention Act allowed a person to be detained without charge or trial for up to three months and denied detainees the right to legal representation.
(To be concluded)
Ahimsa Paramo Dharma!
N. Zubemo Lotha,
Advocate,
Gauhati High Court,
Guwahati, Assam.

Thereafter, Maintenance of Internal Security Act (MISA), 1971, was enacted to replace the Preventive detention Act, however, MISA was held to be more cruel and heinous than PDA, infamous for its excesses during 1975 emergency when the government used it aggressively against opponent political parties, trade unions, civil society associations that challenged the government, that even after making several alterations/amendments, the act was finally removed when the Janata Party defeated congress in 1977 elections. MISA was soon followed by the Terrorists and Disruptive Activities (Prevention) Act, 1985, which went modifications in 1989, 1991 and 1993, before being allowed to lapse in 1995. TADA observed as more heinous than MISA and PDA, allowed law enforcing agencies to commit human rights abuses, arbitrary arrests, denied bail, attach properties and even made confessions made to police officer admissible as evidence and the gross misuse of TADA attained its intolerant heights that the ruling government faced with fierce opposition from political parties, with Bengal MP staging a day-long dharna threatening to resign on the issue, several Cabinet Ministers like Ghulam Nabi Azad declared quits if the law is allowed to continue, and because of the adverse publicity, the congress party government allowed to the law to lapse, and, according to the then Union Minister Arun Jaitley, after the 1993 bomb blasts, when the law was needed the most it was repealed only to appease voters by the congress. In response to the attack on Parliament, the ruling BJP government then brought the Prevention of Terrorism Act, 2002, as anti terrorism law, however, the Act surfaced as excessively abused with POTA being used to arbitrarily target political opponents and human rights abuses that by 2004, the Act was repealed by the UPA government coalition government. Replacing POTA, the Unlawful Activities (Prevention) Act, 1967, (UAPA) was amended in 2004 as a reinforced counter terrorism law, undergoing amendments in 2008, 2012 and 2019. Amended UAPA has been criticised for the vague definition of terrorism which consider “like to threaten” and “likely to strike terror” to be very broad and is open to misuse by the Police for the burden to proof is on the accused that the opposition political parties in the parliament in 2019 termed the law as draconian. Most of the provisions of POTA have been incorporated which supplement preventive detention powers, human rights violations, with no provision to prevent misuse, and the power to designate an individual as a terrorist before being proven guilty by trial, is criticised. UAPA has made it harder for an accused to get bail. The misuse of UAPA has been constantly debated, and the government has been accused of misusing UAPA to stifle dissent and target minorities in India.
Comparative analysis of the abovementioned views shows that AFSPA is a one sided strong law that provides protection to the army men in their operation and surgical strikes in terror sensitive areas. However, AFSPA cannot be a protective legal instrument for the army to organise fake encounters, threaten civilians and commit gross human rights abuse. While the issue in the border regions of Jammu and Kashmir region dealing with terrorism of international armed conflict with Pakistan and China needs to be addressed on a war footing, the domestic issues of a non-international armed conflict in the North-Eastern areas like Nagaland should be approached moderately. There is no need for special legislation like AFSPA to protect the armed forces from prosecution, because the Indian Penal Code (IPC) provisions of ‘general exceptions’; and, of the Criminal Procedure Code (CrPC) provisions that prescribes the need for previous sanction of the appropriate government before a public servant including armed forces can be held for prosecution for the discharge of their official duties in good faith. Again, for the maintenance of law and order in a non-international armed conflict like the in State of Nagaland, the government of India ought to realise that even ordinary laws like the provisions of ‘maintenance of public order and tranquillity’ for example, under CrPC may be sufficient to take stock of the situation. In grave emergency situation like wartime or excessive external threat, emergency provisions under the constitution of India can be invoked for the security and integrity of the nation. After the ceasefire treaty in Nagaland, every insurgent groups and civil societies have been co-operating with the Government of India for peaceful negotiations and co-existence, and also the extent of armed conflict between the two parties have calmed to the minimum. It is reiterated that violence in Nagaland has toned down not for AFSPA or the operations of the Indian army but because of the intervention of the Government of India for political negotiations and the cease fire that is in force.
For the people of Nagaland, the years that followed after World War II did not bring peace, rather the government of India with the enforcement of its superior military forces backed by the offensive law called AFSPA, the entire period have been characterised by countless conflicts of blood and tears. The genesis of this disagreement between the government of India and the Naga freedom fighters lies in the nature of ethnicity and identity and the unfortunate geographical placement of present Nagaland. Nagaland, happened to be placed at an international border sandwiched between the people of the race of Indo-Aryan and the race of Indo-Mongolian, and the one thing that has prominently figured out is with regard to the nature of origin of the Nagas who are absolutely distinct from the culture and tradition of the present Indo-Aryan identity, and largely inclined towards the Indo-Mongolian identity. Moreover, further division of the Naga tribes by subjugating them into a different entity through the Government of India policy for reorganisation of the States again precipitated huge resentment among the Naga people, which surged reaffirmation among the Naga tribal bodies for unification of the divided tribes into one, thus intensifying the freedom struggle from Indian’s forced division and occupation. Nagas which accounts to over 35 tribes (Census of India, 1991) spread over Assam, Manipur, Arunachal Pradesh and Myanmar has been disintegrated into only 17 tribes in the territory of present Nagaland State today. The basis of the Nagas to fight for freedom lay in the right to self determination for the protection and conservation of the family, land, and heritage which was perceived as threatened because of the forceful occupation by India, who is deemed culturally not linked to the way of life of the Nagas.
Today, for once again, the government of India is faced with the question regarding the sustainability of the law of AFSPA in Nagaland, and it is a legitimate expectation of the people to anticipate a reasonable decision by the government, keeping in view of the fact that the present law of AFSPA has been imported from an erstwhile colonial British law and that declaring an area as ‘disturbed’ for an indefinite period of over 60 years, and employing thousands of armed forces at the expense of huge monetary and material resources of the country has not helped the government in achieving its objective at all. Let there be accountability as a matter of good governance that if the central government feels the situation is so grave that the Act is required to be so continued, then it should only be promulgated with a definite set of reasons and objective and a reasonable time frame and if the objective sought to be achieved under the Act cannot be accomplished within the stipulated time, then the Government should acknowledge it as redundant and immediately withdraw the Act and its forces, or as the case may be, hand over the domestic issues to the State Government and its people, and if that however fails then the State could be temporarily reorganised into a Union Territory to restore law and order as desired by the Constitution. Moreover, in dealing with matters of domestic State issues, military forces should be engaged sparingly only when the State police forces are inadequate and they should be employed only in supervision of competent civil authorities. The need for military intervention should be executed at the determination of the Governor of the State, in as much as the federal feature of the Constitution demands such procedure, otherwise in the present circumstances the central government is viewed as excessively interfering directly into the law and order affairs of the State.
While the decision of the government of India is awaited, I place my humble observations that, the government of India must devise a separate counter-terrorism law to deal with non-international armed conflict in harmonious construction with international humanitarian law. Superior Indian armed forces in their operations are advised to make clear distinctions between the members of the fighting combatants who are participating in the armed conflict and the civilians not participating in the armed conflict, because the use of force is permitted only against the armed combatants. It is also a general advisory based on the consideration of the Hon’ble Supreme Court that armed forces are required to follow the instructions of “do’s and don’ts” while acting under AFSPA and the basic instructions, among other things, are:- obtaining definite information from local civil authorities before launching a raid/search; opening of fire after due warning carefully ascertaining that it is essential for maintenance of public order; Do not use excessive force; Women are not searched except by a woman police; Ensure high standard of discipline, etc. Civilian Nagas are advised to obey the government administrative authorities, police and the Indian army acting in good faith and protocol established by law for as long as the law of AFSPA stays in the land it is the local civilians who are at the receiving end. Further, the Indian army through their statement in Nagaland Post dated June 22, 2022, has admitted to the fact that the soldiers were confused and ended up shooting the civilians mistaking them to be militants – hence, considering the peculiar circumstances of the present case, the central government should provide adequate ex-gratia allowance should be granted to all the civilians and armed personnel killed and those injured in this particular incident atleast on humanitarian grounds. The fate of the soldiers on duty allegedly involved in the killings depends on its own court of inquiry, because as per the present AFSPA it is not questionable by any authority. A sky towering memorial park at the place of incident in Oting may also be constructed in the honour of the dead and also as a symbol in proclamation of peace and non-violence in the region.
If hunger or famine cannot justify the theft of a piece of bread from the hands of another, how can a wilful and deliberate separation of man from his family forever by cold-blooded murder be justified? Self-defence is the conditions under which the freedom fighters of Nagaland seem to be behaving because when the government of India have sent a whole group of its military forces to offensively operate upon and to destroy the very existence and their right to life, the only way to defend itself to survive is to use the same means and force to repel the aggressors. Naturally, when a man is faced upon in a difficult position of danger to life, any reasonable man would not be controlled by the rule of law or the criminal code but by his decision to self-defend so that he may live. However, in practise, AFSPA seems more of contract to war than of peace, for the law was not intended for self-defence but to provoke and to cause harm or to kill anyone who comes as an obstruction against the provocation. By the law empowering the armed forces with deadly weapons to kill any people from Nagaland based on their own natural assumption and personal feelings, relatively, the existence of every Naga people is faced upon the trail of a death sentence in the hands of the individual army. What the government of India must realise is that there is no principle of law that can relieve the mistake of their own servant, and all the individual members of parliament who are collectively called the ‘government’ shall bear all moral responsibilities, for if by this law the innocent people of Nagaland are continued to be separated from their family by being shot, when until one day a new batch of government comes to acknowledge that the whole aspect of the law and implementation of AFSPA in Nagaland has been indeed a FALLACY.
Ahimsa Paramo Dharma!
N. Zubemo Lotha,
Advocate,
Gauhati High Court,
Guwahati, Assam.

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