Resolutely Oppose the Move to Add More Teeth to AFSPA When It is High Time to Repeal It

Resolutely Oppose the Move to Add More Teeth to AFSPA When It is High Time to Repeal It

At a time when democratic forces and all concerned sections in India have been consistently demanding the total withdrawal of AFSPA (Armed Forces Special Powers Act), the Modi regime, through the Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023 that envisages to replace the Code of Criminal Procedure (CrPC), is intending to add more teeth to it by guaranteeing further immunity to the armed forces personnel. Accordingly, as per report published by Parliamentary Standing Committee on Home Affairs, the Sanhita is introducing more safeguards to prevent the registration of cases against armed forces personnel for their actions involving human right violations while on duty. At present, AFSPA is applicable to the whole of J&K and in parts of Northeastern States. The BNSS Bill along with the other two Criminal Codes (namely, Bharatiya Nyaya Sanhita (BNS) Bill, 2023, and Bharatiya Sakshya (BS) Bill, 2023) introduced on August 11, 2023 in Parliament are under examination by the Parliamentary Standing Committee.

The new additional protection to Armed Forces (which include all the three divisions, Army, Navy and Air Force) is over and above the already existing colonial-era provisions of CrPC, first introduced in 1898 and later amended in 1973 providing immunity of the armed forces from arrest. In the existing law, there are no specific conditions regarding registration of a criminal case against them. However, according to the new addition, without the prior consent from the Central Government, no cases can be registered against armed forces. This additional protection from prosecution and legal suits will make the AFSPA still more draconian, as it is in addition to the unbridled power already granted to armed forces deployed in “disturbed areas” to arrest or kill anyone. For instance, in December 2021, 30 Army personnel were accused of killing 6 innocent coal miners in Nagaland’s Mon district. Though Nagaland Police had registered a case and filed chargesheet against the accused, the Ministry of Defence denied sanction to prosecute them.

Over the years, there have been repeated calls to repeal the AFSPA that allows security forces to operate without the risk of prosecution or requirement of even a warrant. Section 4 of AFSPA that grants special powers to the armed forces to arrest without a warrant and to use force, even to the extent of causing death against any person who is acting in contravention of law or order in a disturbed area, is the most opposed one by concerned people and human rights activists. Under public pressure, the Manmohan government in November 2004 appointed a 5-member Committee headed by Justice B P Jeevan Reddy to review the provisions of the Act in the northeastern states. Among other things, the Committee recommended a repeal of AFSPA by incorporating appropriate provisions in other Laws. It also suggested to clearly specify the powers of the armed forces and paramilitary forces and called for setting up of Grievance Cells in each district where the armed forces are deployed.

In the same vein, the Second Administrative Reforms Commission (ARC) appointed in 2005 in its 5th Report has also recommended the repeal of the AFSPA. More or less similar views were expressed by National Human Rights Commission also. The Supreme Court of India, in view of the human rights violation incidents associated with AFSPA, has suggested that it should be for a limited duration with its application only to limited districts instead of applying to the whole state together, with periodic review of the declaration within 6 months. However, none of these suggestions or recommendations have been implemented. In 2017, the Supreme Court had even stated that AFSPA does not protect soldiers from prosecution for abuses committed while deployed in internal armed conflicts.

In fact, AFSPA has been a reincarnation of the British-era legislation that was first imposed during the Quit India Movement. After Power Transfer, the Armed Forces (Assam and Manipur) Special Powers Act was promulgated in 1958 as a short-term and temporary measure. However, instead of repealing, after the States of Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland came into being, the Act was extended to these States as well.

In this context, the present move on the part of Modi government to give still more immunity to armed forces in gross disregard of the serious apprehensions from various quarters including that of even Supreme Court and against broader public opinion in the country, should be seen in the context of India’s rapid transition to a fascistic deep state where military, police, intelligence and investigation agencies will have unlimited and uncontrollable powers at their disposal. It is high time on the part of all anti-fascist and democratic forces to come forward resolutely opposing this heinous fascistic move.

P J James
General Secretary
CPI (ML) Red Star

New Delhi
17th November 2023