Tripura takes a welcome step in withdrawing AFSPA

The Tripura cabinet’s decision to withdraw the Armed Forces (Special Powers) Act, 1958)—more popularly known as AFSPA—has come not a day too soon. For at least a decade, Tripura, one of the seven north-eastern states, had imposed AFSPA in the state on February 16, 1997, after a surge in violence. Initially, the Act that empowers the Army and extends legal protection to the troops, was imposed across two-thirds of the police station areas in the state but gradually its extent was reduced with improving situation.

By taking this decision, Chief Minister Manik Sarkar has shown why he is regarded as one of the most pragmatic administrators in the country. "Insurgency has come down to near zero in the state. The demand for withdrawing AFSPA had been made at various levels. But we could not take the final decision as the security forces did not give the final go ahead," the CM added. Recently, when the proposal of further extension of AFSPA came up for discussion to the state government, we sought report from all concerned departments about the law and order and the militant's movement and activities. Finally, the security agencies have agreed to the proposal of withdrawing the Act," the CM has been quoted as saying.

It's a practical decision. If law and order can be handled by the state police, why keep the AFSPA and by extension the Army or Assam Rifles?

The AFSPA remember was and is an emergency provision. It should have been applied in small doses but most state governments have chosen to use the AFSPA over extended period because it helps them largely wash their hands off the business of counter insurgency and let the army carry out the operations. The raging debate on AFSPA has often ignored this aspect. 

The State Governments and not the Army impose AFSPA in a given area. To be applied in conjunction with the Disturbed Areas Act, the AFSPA can be withdrawn by the state government when it wishes to, as Manik Sarkar has now demonstrated. His government is confident enough to say, we can do without the army for the moment at least. Can other states in the north-east follow Tripura’s example? They certainly can but it requires resolute leadership and confidence in the state police forces.

Political expediency and risk-averse state politicians have however baulked at taking that one final step of withdrawing the AFSPA.

Critics have often chafed at the provisions under Sections 3, 4, 6 and 7 of the AFSPA for being ‘draconian.’ What exactly are these provisions?

Section 3: It lays down the authority which has power to declare areas as ‘disturbed’.  These authorities are the central and the state governments. So the army does not declare the area as disturbed. 

Section 4: It gives the army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ammunition dumps, fortifications/shelters/hideouts and to stop, search and seize any vehicle. 

Section 6: It stipulates that arrested persons and seized property are to be made over to the police with least possible delay.  

Section 7: It offers protection of persons acting in good faith in their official capacity. Prosecution is permitted only after sanction by the central government.

These provisions came up for scrutiny before a constitution bench of the Supreme Court in a case titled ‘Naga People’s Movement of Human Rights Vs UOI’.  The five-judge bench elaborately dealt with the challenge to the legality of deployment of the armed forces in aid to civil power. The court had then unambiguously ruled that AFSPA cannot be regarded as a colourable legislation or a fraud on the Constitution. 

The apex court said that the conferring of powers vide Section 4 of AFSPA could not be held arbitrary or violative of Article 14, 19 or 21 of the Constitution. In fact, having considered the role and circumstances under which the armed forces have to operate, the Supreme Court extended the scope of powers vested vide 4 and 6 of AFSPA so as to include by implication, the power to interrogate the person arrested. 

It also allowed the armed forces to retain the weapons seized during the operations in their own custody rather than to hand them over to police authorities.

The mere fact that the provisions of AFSPA have to be invoked in a particular area ex facie establishes that handling the law and order situation had gone beyond the control of the state government. The army personnel operating in those circumstances need to enjoy at least similar powers as the police force if not wider ones. So, just as Section 45 of the CrPC disallows arrest of public servants and just as Section 197 provides impunity against prosecution to a central government employee, Section 7 of the AFSPA gives similar protection to the army personnel. Nothing more, nothing less.

And yet, most opponents of the AFSPA have chosen to either downplay or completely ignore this similarity. In the case of J&K, the army needs legal protection all the more since applicability of CrPC is disallowed in the state that operates under a different set of laws called the Ranbir Penal Code.

So what is the way forward?

A distinction needs to be made about withdrawal or revocation of the AFSPA and its repeal. The revocation of AFSPA from any area needs a concerted view of all organs of the state and Centre as done by the Tripura government. A suggested way is to convert these areas into police administered areas/police districts as was done for Srinagar or Imphal initially without revoking AFSPA. Subsequently, as the situation improves, while evolving the revocation, an exit strategy needs to be worked out for gradual withdrawal of armed forces from the specified area leading to a smooth transition.

Lifting the AFSPA can certainly be attempted but the provisions of the AFSPA, as an emergency law that empowers the army -- the nation’s instrument of last resort -- must continue to remain on the statute books given the increasingly violent and uncertain times that the subcontinent is likely to face in coming years.

When needed, it must be applied in small doses. Every country has to balance the need for a stringent law with the basic principles of ensuring human dignity and human rights. Therein lies the challenge for India’s leadership.