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Placards calling for revocation of the Armed Forces (Special Powers) Act at the Hornbill festival in Nagaland, following the killing of civilians by Indian soldiers in the state, December 5, 2021. © 2021 Caisii Mao/NurPhoto via AP

(New York) – The killing of 14 civilians by Indian security forces in Nagaland state highlights the need for the Indian government to immediately repeal the abusive Armed Forces Special Powers Act, Human Rights Watch said today. The law gives armed forces deployed in internal conflicts broad powers to use lethal force and provides soldiers with effective immunity from prosecution.

On December 4, 2021, soldiers from the 21 Para Special Forces army unit shot and killed six coal miners in Nagaland’s Mon district, saying the soldiers mistook the miners for militants. The deaths led to violent clashes between local villagers and troops, killing seven more civilians and a soldier. A day later, the Assam Rifles army unit killed another person after protesters attacked their camp. The local police filed a First Information Report saying that the military had not made a requisition to the police station to provide a police guide for their counterinsurgency operation and thus, “it is obvious that that the intention of the security forces is to murder and injure civilians.”

“Pledges by India’s home minister and the army to investigate the army’s horrific killing of 14 people will come to nothing unless those responsible are prosecuted,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “So long as the Armed Forces Special Powers Act protects soldiers from accountability, such atrocities will continue.”

India’s home minister, Amit Shah, expressed regret over the incident and said a Special Investigation Team will investigate it. However, he did not clarify in parliament whether the central government will give permission to prosecute those found responsible. The army also expressed regret over the incident and set up a court of inquiry to investigate.

The killings renewed calls to abolish the Armed Forces Special Powers Act (AFSPA). The chief ministers of Nagaland and neighboring Meghalaya state, both allied to the Bharatiya Janata Party-led central government, called for the repeal of the law, as did opposition politicians, human rights activists, and affected residents.

The AFSPA, enacted in 1958 as a short-term measure to allow deployment of the army to counter an armed separatist movement in the Naga Hills, has now been in force for over six decades. In addition to Nagaland, it is currently used in Manipur, Assam, and parts of Arunachal Pradesh in India’s northeast, and in the union territory of Jammu and Kashmir.

The AFSPA gives the armed forces wide powers to shoot to kill, make arrests on flimsy pretexts, conduct warrantless searches, and demolish structures in the name of “aiding civil power,” Human Rights Watch said. The powers that the law extends to the armed forces come into force once an area subject to the act has been declared “disturbed” by the central or state government. This declaration is not subject to judicial review.

Equipped with these special powers, soldiers have raped, tortured, forcibly disappeared, and killed people without fear of being held accountable. The act violates international human rights law protections, including the right to life, the right to be protected from arbitrary arrest and detention, and the right to be free from torture and cruel, inhuman, or degrading treatment. It also denies the victims and their families the right to a remedy.

While Indian law permits prosecuting members of the armed forces accused of crimes under either the military or civilian justice systems, the AFSPA requires the central government’s prior approval for civilian prosecutions of military personnel. Under the Army Act, the military may transfer a soldier from civilian to military custody for offenses that can be tried by a court martial.

Available information shows scant evidence that the military is fully and effectively prosecuting soldiers and officers for rights abuses. Nonetheless, the central government routinely denies permission for civilian prosecution of military personnel. In 2018, the Defense Ministry informed parliament that it had denied all 50 requests from the Jammu and Kashmir state government for civilian prosecution of soldiers since 2001.

Several government-appointed commissions in India have recommended repealing the law. But in the face of resistance from the army, the government has failed to implement the recommendations. Several United Nations human rights bodies have also called for the repeal of the law. A 2019 report on Jammu and Kashmir by the Office of the United Nations High Commissioner for Human Rights noted that the AFSPA “remains a key obstacle to accountability.”

Even in the most high-profile cases of extrajudicial killings, the AFSPA has shielded security force personnel from prosecution in civilian courts while military courts have ultimately absolved them of any wrongdoing. In November 2014, in a rare successful prosecution, the army reported that a military court sentenced five soldiers, including two officers, to life in prison for faking an armed encounter and executing three villagers in Machil in Jammu and Kashmir in 2010. But in July 2017, a military tribunal suspended the punishment, and released all five.

The Supreme Court in a landmark 2016 decision highlighted this lack of accountability in ruling that any allegation of use of excessive or retaliatory force by uniformed personnel resulting in death requires a thorough inquiry. The court said that such force was not permissible “even in an area declared as a disturbed area under AFSPA and against militants, insurgents and terrorists.” A year later, the top court ordered an investigation into alleged unlawful killings by government security forces in Manipur state from 1979 to 2012, in response to a petition filed by victims’ families and nongovernmental groups in Manipur seeking investigation into 1,528 killings.

Despite the Supreme Court order, the central government has denied permission to prosecute armed forces personnel, citing AFSPA, in all cases of extrajudicial killings being investigated by a Special Investigation Team of the Central Bureau of Investigation. In one case, involving the killing of Pheiroijam Sanajit in 2004, the Central Bureau of Investigation filed charges of murder, wrongful confinement, and causing disappearance of evidence against four personnel of the 19 Rajput (Bikaner) of the Indian army. However, India’s Defense Ministry refused to grant permission to prosecute them, citing AFSPA, and saying Sanajit was killed in an “ambush during the course of official duty in lawful exercise of the powers conferred by law.”

In its February 2021 order in this case, the chief judicial magistrate in Manipur sought clarification from the state high court, noting that “denial of prosecution sanction by the competent authority has become a routine matter in most of the cases where defence/paramilitary personnel are involved in fake encounter cases.”

Following the December 4 killings in Nagaland, former Justice Madan Lokur, part of the Supreme Court bench that directed the investigation into the alleged extrajudicial killings by security forces in Manipur, said that although AFSPA gives broad powers to the armed forces, it “does not mean that they can go around just killing anybody.”  

“AFSPA has long shielded the armed forces from responsibility for grave human rights abuses and denied justice to the families harmed,” Ganguly said. “The government should ensure an independent civilian investigation into the Nagaland killings and urgently repeal AFSPA to save many more lives.”

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