Across the Corridor by P Chidambaram: When Law Becomes a Weapon

In the wake of the terrorist attacks on the city of Mumbai in late November 2008, I was requested to transfer me from the Ministry of Finance to the Ministry of Home Affairs. I confess that I was reluctant to do so because I had cherished the hope of completing five years as finance minister in May 2009. However, I quickly realized that this was a call of duty that I was obliged to obey. I moved on December 1, 2008.

At the beginning of my tenure, I came across passionate arguments for the repeal of the Armed Forces (Special Powers) Act, 1958 (AFSPA). Under the Act, the central government can declare any area as a ‘disturbed area’ and apply the Act to that area. Similarly, in eight states the governor (read state government) can exercise that power. The Act does not prescribe a time limit for the continuation of the declaration. However, the Supreme Court intervened and forced the concerned government to review the declaration before the expiry of six months.

That obligation brought little comfort to rights activists because once the Act came into force, state governments were ready to dismantle the declaration. For example, Manipur has notified and enforced the Act from time to time since the 1980s. Assam has reviewed and renewed the declaration every six months since 2017. The central government has regularly notified ‘disturbed areas’ in Nagaland (the entire state) and Arunachal Pradesh (three districts and two police station areas).

intended immunity, impunity

The state (central or state government) is grateful to the armed forces – the army, the air force and the central armed police forces. They are decision making powers. Where the army is stationed, the real power lies with the army. I analyzed the Act in a column on these pages (The Indian Express, May 3, 2015). The powers conferred by the Armed Forces under the Act are, to put it mildly, harsh. Powers include the power to destroy any shelter or structure, to arrest without warrant, and to search and seize without warrant. Each of these powers is contrary to the common law – the Code of Criminal Procedure – except in narrow and special circumstances. The most coercive power is the power given to a police officer, if he considers it necessary, to shoot at any person in assembly of five or more, even till causing death.

The case against AFSPA is that armed forces personnel do not stop to ponder whether the use of force – often lethal force – is avoidable. Once they are in a state of conflict, they do not weigh the options; They use maximum force. Section 6 of the Act provides immunity against prosecution to the personnel of the Armed Forces. The fact is that the provision encourages personnel of the armed forces to act with impunity.

It is a matter of common sense that even ordinary police powers are misused. Often, such abuse is sanctioned by state policy – ​​for example, in Uttar Pradesh where the law enforcement policy includes ‘encounters’ and is proudly advertised! In a state that is declared a ‘disturbed area’, the armed forces operate under extreme tension and the AFSPA becomes a weapon.

Strong case for repeal

The demand to abolish AFSPA is an old demand. In 2005, the Justice Jeevan Reddy Committee recommended its repeal. That idea was supported by successive commissions and committees. Last was the Justice JS Verma Committee which underlined the imminent need to review the continuation of AFSPA.

I think it is imperative to repeal AFSPA. There are other and subsequent laws to deal with extremism and terrorism, such as the Unlawful Activities (Prevention) Act and the National Investigation Act. In fact, with the experience of implementing UAPA, there is a compelling case to review that Act as well. The process of repeal of AFSPA is long overdue.

The case of Assam is instructive. In 2017, the home ministry asked Assam to remove the AFSPA altogether or reduce the areas where it applies. Assam refused. In 2018, the Standing Committee on Home Affairs asked Assam why it was necessary that the entire state be declared a ‘disturbed area’ against the advice of the MHA. There was no concrete explanation.

authoritarian government and law

After 13 civilians were killed on December 4, 2021 (in a case of mistaken identity, for which the army has apologized), the chief ministers of Manipur, Nagaland and Meghalaya have called for the Act to be repealed. Manipur’s argument is ridiculous: it is the state government that has implemented the Act and nothing stops the chief minister from revoking the notification.

The fact is that governments have become more autocratic since 2014. As an inevitable consequence, the police – and the armed forces when deployed for internal security – have become more autocratic. Designed to be a shield, the AFSPA has become a weapon. There are voices within the armed forces that support the abolition of AFSPA but sadly they are silent.

As Home Minister, I supported the repeal of AFSPA. Alternatively, I requested to amend the Act. I failed, and I tell the story in my 2015 column. Today, we have an authoritarian government, an authoritarian prime minister and an authoritarian home minister. The possibility of repeal or amendment is nil. The only recourse is the Constitutional Court.