The death of Mangboilal Lhouvum, a daily wager and father of four, on August 4, 2021, in Manipur, has brought extra-judicial killings once again onto the ‘front page’ [1].

The horrific manner in which the poor man died has raised great, widespread concern and anger, especially in Manipur. The killer is allegedly an army man who was named by Mangboilal in his dying moments. This has yet again raised outcry against the Armed Forces (Special Powers) Act, 1958 (AFSPA).

Imphal-based Human Rights Alert (HRA) and Extrajudicial Execution Victim Families Association (EEVFAM), allege that the killing of Mangboilal is a case of extra-judicial action using AFSPA.

In no manner can the enormity of the death of Mangboilal Lhouvum, allegedly as an extra-judicial killing, be minimized. This, and earlier similar instances involving security forces, need to be urgently and transparently attended to bring the criminals to justice.

It cannot be over-emphasised that no crime (murder, custodial killing, rape, etc) committed by any person, least of all an army man or policeman on duty, should go unpunished, and cover-ups of crimes also need to be sternly dealt with.

One report alleges that the army has misused “impunity” granted by AFSPA, to cause disappearances of people, kill people in fake encounters and other forms of extra-judicial killings.

It is therefore pertinent to re-visit the circumstances under which AFSPA is invoked and used, and the role and responsibility of state and central governments and the Armed Forces.

Why do governments need AFSPA?

The phrase “civil power” occurs in the Constitution, whose framers were aware that the civil administration wields enormous power of bureaucratic-police and legal systems, and public resources, for their primary duty of governance.

The use of the Armed Forces (“military”, hereafter) in “aid of the civil power” is provided for under Article 246 Seventh Schedule Para 2A, of our Constitution. Accordingly, Parliament enacted AFSPA to enable special powers to be conferred upon a state or central government, to declare the whole or some part of the state as a “disturbed area” [which is] “in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary ”.

As mentioned in the Introduction to AFSPA, governments need the military to provide aid,“because State administration became incapable to maintain its internal disturbance” [(sic) the word used should have been ”security’ instead of “disturbance” ].

That is the reason for deploying the military on internal security (IS) duties, to do the job of the police. Since a soldier serves under military law (Army Act, 1950), AFSPA is the law which enables him to act in the police role. However, what needs to be specially noted is the telling phrase “… because the State administration became incapable to maintain its internal security”.

Governments issue Notifications

According to Manipur State Home Department’s notification of 2020, “In exercise of the power conferred by Section 3 of the Armed Forces Special Powers Act (AFSPA), 1958 as amended [sic] time to time, the Governor of Manipur hereby accords ex-post facto approval declared [sic] the entire state excluding Imphal Municipal areas with retrospective effect from December 1”. [2]

Manipur Governor Dr.Najma Heptulla accorded approval because “… the Governor felt that the state is still in the grip of violence perpetrated by extremist or insurgent groups and it is necessary that armed forces remain deployed to help the civil administration ensure order and peace”. [3]

The above Notification clearly states that Manipur continues to be “in the grip of violence perpetrated by extremist or insurgent groups”, and the civil administration needs the Armed Forces “to remain deployed to … ensure order and peace”.

It is appropriate to note that governments’ administration is by use of civil power, which is nothing but the combination of the powers, roles and functions of elected politicians and civil servants including police officials, at all levels.

Citizens suffer due to government incapability

Ordinary citizens suffer for want of order and peace in society. They also suffer loss of civil liberties, and political and civic participation when incapable central and state administrations continuously impose AFSPA over decades.

Coming to citizens’ rescue, the Hon’ble Supreme Court of India (HSCI) directed [4] that declaration of “Disturbed Area” to invoke AFSPA must be reviewed every six months.

However, state administrations cursorily review the situation at the end of six months, and issue a fresh notification valid for the next six months. Sometimes, even ex-post facto approval is accorded with retrospective effect, as when the Manipur state administration apparently failed to do its routine subterfuge.

Thus, the HSCI’s direction that government must review “Disturbed Area” Notification every six months, is routinely circumvented by state administrations to continuously maintain entire states as disturbed areas under AFSPA, six-months-at-a-time.

Where AFSPA has continuously been in force over decades, this is proof — if proof is required — that successive civil administrations have been “incapable to maintain internal security”, and therefore need military aid for internal security (IS) duties.

Is this not adequate demonstration of governance by force, unacceptable in a democracy?

Why are governments unable to ensure order and peace?

Extremism and insurgency which disturb order and peace, are the outcome of successive governments neglecting, often violating, the constitutional values of justice, liberty, equality and fraternity, and treating the directive principles of state policy with contempt. The political class has been and remains principally engaged in electoral politics to hold on to power or displace those in power.

The needs, wants, desires and aspirations of people especially the majority, and of women, in the lowest socio-economic sections of society, are not at the focus of governance. Governments, focussed on neoliberal “economic growth”, seem to need people only for their votes, and remain divorced from the reality of social unrest which is mostly due to huge and growing poverty and inequality, exacerbated by the national Covid crisis.

Governance and AFSPA

It is nobody’s argument that governance is easy. Indeed arguably, social disturbance and unrest, even extremism and insurgency, are the cumulative result of “development” policies/programs/ projects/proposals over the years, adversely affecting some sections of society.

The primary task of governments is to use the power of civil administration to maintain security, public order, and essential supplies and services to the public. Governments can function in the interest of people only when politicians in power use people-oriented politics to uphold the rule of law, and maintain peace and order in society.

Consistent mal-governance, mis-governance or non-governance (or some combination) by successive governments over decades, has necessitated calling the military in aid of civil power for internal security (IS), natural disasters, accidents and even rescuing children fallen into borewells. This is implicit admission of political-administrative incompetence.

It is difficult to avoid concluding that successive central and state governments over decades right up to the present, have failed in their primary task, some more dismally than others. This failure has caused social disturbance. Governments unable or incompetent to handle resultant law and order situations, use AFSPA to call for military aid.

Reality of coercive power

Dissonance, dissent and protest are realities in any society. When these are not resolved using the democratic political tools of honest and transparent dialogue, debate and negotiation, the administration needs the coercive tools of state police and central armed police forces (CAPF) to maintain law and order.

When law and order breaks down in spite of the presence of the state police and CAPF, or because of their misuse, it can only be restored by military deployed in aid of the civil power. Governments have no other recourse!

There is a way ahead!

It is strange that those who object to imposition of AFSPA, and agitate for its repeal, have never asked why successive central and state governments have been and remain incapable of dealing with a “disturbed or dangerous condition”.

Persons who demand repeal of AFSPA might do better to question why successive elected governments invested with enormous powers, seek aid from the military to maintain peace and order in society. Instead, they might demand that the military be sent back to its primary role of defending our borders.

It is difficult to fathom why courts have not asked governments the reason for decades-long continuous deployment of the military for internal security. Equally inexplicable is why successive parliaments and parliamentary standing committees have not found decades-long, continuous deployment of the military for internal security, detrimental to national security.

Use of the military “in aid of the civil power” is a constitutionally sanctioned option that no government, howsoever liberal, will discard. The military on IS duties is to civil society, what an ICU is to a critically ill person. A patient surviving in an ICU for many years, is effectively dead. The patient needs treatment for the disease and right nutrition to regain normal health. Likewise, the military remaining deployed on IS duties over decades makes civic and political freedoms effectively dead, without assuring peace, order or security in society. India’s societies need the “treatment” of honest political effort by transparent dialogue and engagement with people, and the “nutrition” of good governance for their growth. Societies do not need the army, except to guard the country’s borders against external aggression.

To limit army deployment on IS duties, governments continuously invoking AFSPA must be prevented. While no Central government may move to repeal AFSPA, it would certainly be open to amending it. An amendment to limit use of AFSPA to, say, an aggregate of 90 days in a calendar year, will allow governments to retain the admittedly coercive option of military deployment, when civil administration and police fail to maintain law and order.

A suggested amendment to AFSPA is to insert the following at the end of Sec.3: “Provided that the Governor of the State or the Administrator of the Union Territory or the Central government shall not declare an area as disturbed for more than an aggregate of 90 days in any calendar year”.

Imposing limitation on using AFSPA may spur governments to re-discover ways of providing a troubled society with honest politics and democratic governance. It will also be in the greater national interest to enable the army, one-third of which is deployed for internal security, to address a growing two-front threat.

End note

In the meanwhile, any criminal acts by soldiers operating on IS duties under AFSPA, or by members of police forces, must be investigated and defaulters brought to justice transparently and without delay. Only then will the soul of Mangboilal Lhouvum of Manipur, and others before him who were allegedly killed, tortured or raped by members of security forces, rest in peace.

(Author: Maj Gen S.G.Vombatkere retired as Additional DG in charge of Discipline & Vigilance in Army Headquarters. Article courtesy: Mainstream Weekly.)