AFSPA: Why the Indian Army does not define our Indian-ness

To know the reality of things, it is important to be well-informed. The Armed Forces Special Powers Act (AFSPA) is a lesser known reality, presently in effect in the North-Eastern States and in the erstwhile Jammu and Kashmir. People from the Indian army, often seen as the epitome of Indian-ness, are guilty of human rights violations and remain immune to any legal action against them. The AFSPA serves less to protect a state and more to dominate it.

The AFSPA is an Act rarely known by people who hero-worship the army. It is also something scarcely portrayed in mainstream cinema. The films, for example, made on the Indian Army for the Indian people to reignite their inner Indian being, often forget to paint on screen the stains of reality. What is displayed via the trope of the Indian Army in Bollywood is mainly and only synonymous to patriotism and a superior Indian-ness. This exaggerated show that we have been repeatedly fed is misleading. Still, once in a while various people or movies do attempt to portray some pieces of truth.

One of the best scenes from the 2014 movie Haider, defines the Act in discussion. The monologue in the film is taken straight from ‘The Armed Forces (Jammu And Kashmir) Special Powers Act, 1990’: “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,— if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order…”

The Armed Forces Special Powers Act (AFSPA) came into action in 1958. At first, the AFSPA applied only to the ‘disturbed areas’ of northeast territories of Assam and Manipur and was aimed at containing an armed rebellion by Naga militants. In a 1972 amendment, the AFSPA was extended to each of the seven new states created in the region: Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh. Similar laws were also applied to counter militancy in Punjab from 1985 to 1994. Later a version of the Act was extended to Jammu and Kashmir in 1990 and has been in force ever since.

Every official making a search under this Act has the power to break open the lock of any door, almirah, package or other thing, if the required key is withheld. The armed forces therefore can enter, search, and arrest without warrant. Not only this, the act also shields the army by not allowing any prosecution, suit or other legal proceedings against any person in respect of anything done or intended in use of the powers given by the Act. In 2016, the Supreme Court did imply that any encounter carried out by armed forces based on AFSPA should be subjected to detailed inquiry but the sanctions for prosecution are seldom granted by the government.

The AFSPA imposed in Assam is extended every six months after a review by the State government. Recently, the Assam government extended the ‘Disturbed Area’ status of the State for another six months from August 28 under AFSPA and did not mention any reason for the extension of the Act in the state.

In the aftermath of the act’s implementation, Indian security forces have shot civilians under the authority of the Armed Forces (Jammu and Kashmir) Special Powers Act. For example, on February 23, 2006, soldiers in Handwara shot at a group playing cricket- killing four boys, including an eight-year-old, under the pretext that a militant was hiding among them.

The problem with the AFSPA and hence with the overstated Indian-ness of the Indian Army is in its lack of accountability. Extrajudicial executions are prevalent in these areas and with no one to answer for the thousands of unmarked graves and the disappeared civilians, justice remains unattained. The official complaints that do get registered by the Ministry of Home Affairs (MHA) regarding AFSPA add little to the tragic tale. The MHA segregates them into 12 categories and they range from “arbitrary use of power” to “custodial death“, “custodial torture“, “death in army encounter” and “death in army firing“. All of this, and more, remains uncared for and gets faded in the cheers of supreme support and affection the army enjoys from the majority.

In 1997, the UN Human Rights Committee displayed its concern at the human rights violations by security personnel in areas declared “disturbed.” It expressed alarm about the climate of impunity (exemption from punishment) and the lack of government approval for legal proceedings against armed forces acting under special powers. The Committee recommended that this requirement be abolished. This stringent act has also been criticized by Human Rights Watch as a “tool of state abuse, oppression and discrimination” and the civil society groups and rights activists in the affected regions have been demanding the withdrawal of the same.

The AFSPA is meant to protect every state against any internal ‘disturbance’- a word not quite well-defined and often mistaken for ‘dissent’ by the authorities. This Act acts in favour of the establishment trying to control and subjugate a people. The Army becomes the means in doing so. Indeed a soldier’s persona is of someone who defends the values of the nation and guards the ideals of the state and that is commendable. But the mud that the Indian socio-political stage has become and the poisonous lotuses it has given birth to requires the question: ‘Who determines one’s Indian-ness and who sets these ideals and values of the nation?’ Is it the government which itself is often flawed and fraudulent or is it the majority – currently morally dead?

Farzan Ghani is a student pursuing English Literature from Jamia Millia Islamia.

Edited by: Varda Ahmad