What happens when an attempt is made to portray a war of invasion as an internal law and order problem?

In such an attempt, a subsequent legal dilemma must emerge where the rule of law can even come under trial.

The Indian Armed Forces Special Powers Regulation of 1958 (AFSPA), is one such regulation where the rule of law itself has come under trial. The present article is an attempt to demonstrate this fact.

To begin with, the Indo-Naga conflict (for which this Regulation was first promulgated) is not an Indian internal law and order problem.

In this conflict, Nagas are not agitating against mother India for some discrimination shown to them. On the contrary, Nagas are altogether not Indians. They are sons and daughters of their own motherland- Nagaland.

I say this, because the Indo-Naga conflict is a case where in spite of the fact that these non-Indian Nagas had declared their independence on the 14th August 1947, and had also established a Federal Government of their own, fifty three thousand Indian troops moved into Nagaland in the 1950s and occupied Nagaland.

All these facts show that the Indo-Naga conflict is not an Indian internal law and order problem but a clear case of aggression and invasion on the part of India. Here, Nagaland did not invade India, but India has invaded Nagaland.

The result is the 59-year Indo-Naga war, which has cost the lives of thousands upon thousands of both Naga and Indian soldiers. The war has also claimed the lives of over two hundred thousand Naga civilians.

In this war, Bombers, Jet fighters, Heavy artillery as well as Light Armoured tanks were used. However, India would not admit to the world or even to its own citizen that the conflict in Nagaland is an open war.

This stance however, put Indian lawmakers into a very difficult position. Their problem was one of how to deploy fifty three thousand Indian soldiers and still call that deployment as assistance to Indian internal civil law and order breakdown.

Here the crux of the problem lies in the fact that civil administration laws, enacted for use in civil disorders, are very different from national and international laws enacted for the conduct of open warfare between nations. To give an illustration of this fact, in internal civil administration, Magistrates and the police enforces the civil laws.

In the execution of these laws, the police can search a house only when a magistrate issues a search warrant. The police can also arrest only with an arrest warrant issued by a Magistrate and even shoot to kill only with the consent of the same authority.

However, in an open war situation, a soldier cannot run back to a magistrate to get a firing order to defend himself against an enemy who is out to kill him.

Indian lawmakers tried to resolve this legal dilemma by creating an extra constitutional and extra Indian Penal Code regulation called the Armed Forces Special Powers Regulation 1958.

This extraordinary regulation was created so that the Indian army could operate and fight the Naga soldiers under the guise of internal law and order breakdown. The regulation however created more problems then solving the already existing problems that had emerged as a result of India’s invasion of Nagaland.

In the end, what Indian lawmakers finally created was a regulation that could not fit into either India’s just penal code or her grand Constitution.

In fact, what emerged from this desperate legal manipulation was a law-defying monster that brought shame to both the Constitution of India as well as the Indian Penal Code.

Here, what Indian lawmakers had tried to create was a law that would protect its soldier’s lives without admitting that a war of invasion was going on in Nagaland. However, what instead emerged was a law that violated all universal human rights principles and made the Indian soldier a perpetrator of that international criminal act.

In the final analysis, this Regulation can ultimately turn out to be India’s biggest violation of human rights as it legally sanctions the army to rule with legal immunity and impunity.

After all, under AFSPA, the army can search without warrant; arrest without warrant and even shoot to death on mere personal whims. All these sweeping powers are sanctioned by law, protected by law and even immune from legal prosecution unless sanctioned by the Central Government. (AFSPA Section 4 (a), (c), (d) & Section 6).

In the light of all these facts and implications, all conscientious Indian citizens should denounce this monstrous Regulation and even bring the framers of these laws to trial. If they fail to do this, one day the whole of India may find itself under prosecution from an International legal tribunal.

In this connection, one also must express sympathy for the many Indian soldiers who have fought as well as died in the 59-year battlefield of Nagaland. In their over half a century ‘tour of duties’ in the killing fields of Nagaland, these fine soldiers of India were never awarded military medals.

These soldiers have fought under some of the most difficult circumstances of warfare. They fought in treacherous terrains amidst a people who were totally alien and hostile to them. However, in the end, all that they received for their courageous works were some irrelevant civilian medals.

This grievous insult to these heroic Indian soldiers is because India’s politicians would not admit that the Indo- Naga conflict is an open war between two nations. (After all military medals cannot be awarded to soldiers masquerading as civil servants!)

As for our Naga soldiers, though these same Indian politicians called them goondas, dacoits and hostiles; our government has awarded the deserving ones with befitting military medals and honours. They are also respectfully remembered as the heroic defenders of our motherland.

In conclusion, when will Indian politicians, finally admit that the Indo-Naga conflict is an open war where India has invaded Nagaland?

That admission and withdrawal of Indian troops from Nagaland will save many Indian and Naga soldiers from further deaths.

Such an act will also render the AFSPA a meaningless and obsolete regulation and save India from a possible international condemnation.