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Meghalaya High Court Calls for Invoking Armed Forces Special Powers Act in Garo Hills

Gautam Sen is a retired IDAS officer who has served in senior positions at the Centre and in a north-east State Government.
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  • November 17, 2015

    On November 2, 2015, a full bench of the Meghalaya High Court comprising Chief Justice Uma Nath Singh, Justice T. Nandakumar Singh and Justice Sudeep Ranjan Sen issued a suo moto Order directing the Government of India to consider promulgation of the Armed Forces Special Powers Act (AFSPA) in the Garo Hills region of the State.1 This order was delivered in the context of the Court’s negative perception of the internal security milieu in the southern parts of the State, particularly in the South-West, South, West and East Garo Hills districts, and regions bordering Bangladesh. The High Court has cited various recent instances of widespread lawlessness in the region including extortions and kidnappings by Garo National Liberation Army (GNLA) insurgents.

    The Court Order particularly cited the abduction of 25 civilians, 27 businessmen, 25 private sector employees, five government engineers, five teachers and a Block Development Officer – who incidentally is the brother-in-law of the Superintendent of Police in-charge of the High Court`s security – between January and October 2015. An Assistant Central Intelligence Officer was also abducted and killed near Baghmara, the district headquarters of South Garo Hills, in the last week of September 2015. The Court Order, inter alia, mentions that Judges have also received veiled threats.

    The same Court had taken a forthright stand on similar subversive activities by another insurgent group – the Hynniewtrep National Liberation Council (HNLC), which, though presently subdued, has been trying to make its presence felt in the Khasi and Jaintia Hill districts of the State. In an Interim Order issued on May 27 2015, the Court had directed the State Government to restrain the media from publicising statements or calls of bandh issued by the HNLC, so that the fundamental rights of the citizens guaranteed under the Constitution are not jeopardised. The Court had threatened to initiate ‘contempt of court’ proceedings against authorities and organisations which fail to uphold its Order. The Court pointed out that HNLC was carrying on its activities inimical to the State and its people, despite being proscribed till November 2019 under the Unlawful Activities (Prevention) Act, and confirmation in this respect by the relevant Tribunal on May 25, 2015.

    Coming back to the Court’s November 2 Order, while acknowledging that law and order is a State subject under the Constitution, the Bench reminded the Union Government of its constitutional obligation to protect the State against internal disturbance under Article 355 and the fundamental rights of the citizens under Article 21. To ensure an environment that sustains normal civic life and the basic rights of the people in the State, the High Court observed that it has no option but to direct the Central Government to consider invoking the AFSPA in the Garo Hills area and the deployment of armed and para-military forces in the aid, but certainly not under the control, of civil and police authorities. In other words, the Court has expressed its exasperation at the ineffectiveness of the State administration in curbing these insurgent groups despite the presence of the Central Armed Police Forces (CAPFs) in Meghalaya.

    During the hearings before the Court Order was issued on November 2, the Ministry of Home Affairs (MHA) had responded by filing three affidavits providing necessary details to the Court about financial and material support extended to the State Government by the Centre. In its affidavit, the MHA had elaborated on the substantial financial package devolved to the State from the shareable pool of Central taxes under the 14th Finance Commission award (Rs. 25,413 crore covering the period 2015-16 to 2019-20), grants given on non-plan account towards the modernisation of state police force (Rs. 32.18 crore during 2010-11 to 2014-15, and Rs. 3.48 crore in the current financial year), funds for raising four India Reserve Battalions of Meghalaya Police (with proposal for raising two more battalions under consideration with similar central assistance), supplemented by the Centre`s reimbursement of security-related expenditure of Rs. 72.82 crore from 2010-11 to 2015-16 incurred by the State.

    The MHA had also submitted to the Court that 79 companies of CAPFs have been deployed in the State, with 54 companies on border guarding duties and 25 companies on internal security assistance to the Meghalaya Police. Furthermore, the MHA had informed the Court that new police stations have been set up in Garo Hills and some of the existing police stations in the region are being upgraded, with Rs. 500 crore provided to the Meghalaya Government for the purpose, and inter alia mentioned that Rs. 12.85 crore and Rs. 13 crore have been sanctioned for such state police projects in South and West Garo Hills, respectively. The MHA had taken a stand before the Court that it is for the State Government to effectively utilise the CAPFs in counter-insurgency operations. It also submitted that it will review the deployment of additional CAPFs in Meghalaya after the 2015 Bihar state assembly elections.

    The Court had obviously not accepted the Government of India`s contention about the adequacy of security resources available and deployed vis-à-vis its perception of the internal security milieu in parts of the State. While some may consider the Court directive to the Union Government as a case of judicial overreach and intrusion in the domain of the executive (the Minister of State for Home has already indicated that the Court Order will be contested), a contrasting view may be that the Court’s decision should actually help the Central and State Government authorities to show greater political will to contain the insurgents through a multi-pronged approach.

    A holistic appraisal of the internal security environment in the seven North-Eastern States, excluding Sikkim, shows that Meghalaya is relatively better placed. The GNLA is largely a home-grown insurgent force sustained by extortions and smuggling activities which can be contained with better deployment of the available force and with support from the local people. But the worrisome part is the low-key approach of the established political parties towards the insurgents, and the politician-middlemen-contractor nexus at the district level in siphoning off funds allotted under various development schemes. This nexus is breeding corruption and also distorting the visibility of many of the Central schemes among the common people. Often projects undertaken under such schemes are made to appear as though they are being sanctioned at the behest of the local politicians. Strengthening of social audit could lead to greater public awareness about the role of the state in promoting development and welfare of the people to counteract the insurgents.2

    The Court Order is more like an advisory to the Government of India based on reasoned premises referring to a number of High Court and Supreme Court judgments. This Order should also facilitate a relook into the existing provisions of the AFSPA. It is of essence to institutionalise an effective and people-centric system so that the cover of the statute is neither retained in a routine manner over large areas for years together nor any hesitancy or pusillanimity permitted when its promulgation is decisively required in specific areas affected by insurgency-related disturbances.

    Moreover, the AFSPA, to be an effective support measure for the security forces and also engender confidence among the people within its ambit, should be revoked within a specified period, say six months, unless re-promulgated with the approval of the central and state legislatures. The aspect of utilisation of security forces including CAPFs in a State – particularly in an autonomous manner – is a sensitive matter and has constitutional ramifications. A consensual political view in this regard, particularly through a mechanism like the Inter-State Council, is of the essence, and should be formulated in the context of the situation cited by the Meghalaya High Court.

    The author is presently Adviser to a former Chief Minister of Nagaland who is now a sitting Member of Parliament (Lok Sabha). He has served as Adviser (14th Finance Commission) to the Government of Nagaland and Financial Adviser to the North Eastern Council. The views expressed are the author`s own.

    • 1. WP(C) No. 127 of 2015.
    • 2. This audit process directly targets and involves the beneficiaries. The auditors are drawn from a wide array of stakeholders, including representatives of beneficiaries and civil society, who take part in the evaluation of outcomes of the development schemes.

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