December 20, 2021 ☼ The Intersection ☼ constitutionalism ☼ national security
AFSPA is a red herring. Restructuring the Rajya Sabha will better address states' grievances
This is from The Intersection column that appears every other Monday in Mint.
The debate over providing Indian armed forces with special powers to carry out domestic counter-insurgency operations has been rejoined following the terrible killings at Oting, Nagaland. It is an important debate, not only to hold state authorities accountable for their actions, but also, more fundamentally, to review how the democratic Indian republic holds together its mind-bogglingly diverse population.
Yet, decades after the Armed Forces Special Powers Act (AFSPA) was legislated and invoked, we are no closer to a reconciliation of objectives, a constitutionally defendable consensus, or even a fresh new approach to handling the problem. Since many of the political ingredients of grievance, disaffection and separatism are still out there, the AFSPA has become a lightning rod for popular opposition to the way the Indian republic fights insurgencies, and in the extreme, to the republic itself. We can no longer afford to let such sore wounds fester and proliferate.
I make two arguments in this column: first, the paradoxical claim that AFSPA is both necessary and must be lifted; and second, that the resolution of this paradox lies in restructuring our national politics. The solution to a complex problem, as it so often does, lies outside the complexities of the box.
Gen Menon explains why soldiers needs legal protection when carrying out domestic operations.
Why is AFSPA necessary? As my Takshashila colleague Lieutenant General (retd) Prakash Menon argues, while the Act can certainly be reformed, the army will always need a sound constitutional basis to govern its domestic operations, offer legal protection to service personnel and give commanders the operational freedoms they need. This is a fair point. The army is not a police force: its personnel are fundamentally trained to employ lethal force at the risk of their own lives. If the army is called in, it must be because all other options have failed and the use of lethal force against our own fellow citizens is necessary. To protect both civilians and their uniformed counterparts in the conflict zone, we need clear laws, political norms and internal accountability mechanisms within the armed forces.
Jammu & Kashmir is less of a purely domestic counter-insurgency theatre because India is fighting a proxy war with state adversaries across the frontier. Even so, better separation of external vs internal duties is necessary.
Why then must AFSPA be lifted? The army is the final option and must be used minimally, sparingly and for as short a duration as possible. You call the army in when a political crisis escalates into armed violence beyond the capability of state and Union police forces to handle. The army’s task is to force the violence down to levels that the police can manage, hand back control to the state government, and go back to its barracks. That is why a duration of six months is built into the legislation.
Pratap Bhanu Mehta has a scalding argument against AFSPA.
If you need to deploy the army continuously for long years and decades, you either have a proxy war abetted by an external adversary or an abject failure of political leadership. In most cases in our north-eastern states, it is the latter. The army—and by extension AFSPA—can’t be deployed there forever. What does it say of the Indian republic if its most frequently encountered representative is a gun-toting soldier?
Over the years I’ve written about how AFSPA can be lifted in Jammu & Kashmir (2011) and Manipur 2006; as Kautilya would advise.
We risk making the army a scapegoat for the failings of political leaders who are unwilling to make the unpopular decisions necessary to resolve conflicts. We also risk enmeshing soldiers in the political economy of conflict, corroding their professional culture and combat readiness. That’s why we must get the Indian Army out of prolonged counter-insurgency duties—whether in Nagaland, Assam or Jammu & Kashmir. There are sensible ways of doing this, provided elected political leaders keep the national interest supreme.
Bridging the divide between the disgruntled insurgent and the Indian state is difficult, of course, but not impossible. It has been done in Mizoram, Assam, West Bengal, Andhra Pradesh, Punjab and Jammu & Kashmir. Democratic politics offers many avenues to acknowledge differences, recognize pluralism and find peaceful compromises. If they are desired, sought and pursued.
So many of India’s big problems are the wages of an imperfect federalism and more recently its evisceration.
A deeper solution to quelling insurgencies in the north-eastern states lies not in repealing AFSPA, but in restructuring the Rajya Sabha. If every state has an equal number of seats in the Council of States, then the centrifugal forces of separatism will be weaker. In the US, Rhode Island with a population of 1 million and area of 3,000 sq km has the same number of senators as California (with 40 million and 425,000 sq km). In India, Nagaland has one Rajya Sabha seat to Uttar Pradesh’s 80. Even if Rajya Sabha members represented their state interests, small states are bound to feel under-represented. Unfortunately, since Rajya Sabha members can now be from anywhere and must follow the party line, just like their Lok Sabha counterparts, the Council of States fails as a forum to negotiate states’ interests.
This is also the way to counter China
We can take the wind out of the sails of separatists and insurgent groups if Nagaland’s consent is material for every national legislation to pass. National integration cannot be achieved by the armed forces: it requires genuine political empowerment of all constituents. We must rebalance the Rajya Sabha.
It is the moral power of India’s foundational constitutional values that provides legitimacy for the use of force against insurgents. If that moral power diminishes, legitimacy is undermined and force becomes the sticky plaster holding things together. Enhance moral power, and force becomes unnecessary—and unopposed when necessary.
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