Context: According to a notification, The Ministry of Home Affairs (MHA) has further removed the Armed Forces (Special Powers) Act (AFSPA) from the jurisdiction of three police stations in Wokha and Zunheboto districts of Nagaland, while one more police station in Arunachal Pradesh has been declared as a “disturbed area” under the Act.
The Armed Forces (Special Powers) Act, 1958
Powers to declare areas to be disturbed areas (Section 3) – If, in relation to any state or Union Territory to which this act extends, the Governor of that State or the administrator of that Union Territory or the Central Government, in either case, if of the opinion that the whole or any part of such State of Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.
Application of AFSPA
- The ASPA was first applied to the Seven Sister States of North East India, including Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, on 1 September, 1958, to stop the North Eastern States seceding from the Indian Union.
- Later Punjab and Chandigarh also came within the purview of this act, which was later withdrawn in 1997.
- AFSPA was then applied to the state of Jammu and Kashmir in 1990 and has been in force since then.
Special powers of the armed forces
Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area:
- For the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order.
- They can prohibit assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances in the disturbed area.
- They can destroy any arms dump, prepared or fortified position or shelter or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence.
- Enter and search any premises without warrant and make any arrest or recover any person who are believed to be wrongfully restrained.
- No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person regarding anything done or purported to be done in exercise of the powers conferred under the Act.
Arguments in favour of AFSPA
- Needed to maintain morale of the force.
- Insurgents will gain upper hand in absence of it.
- Troops need such powers because the army is only deployed when national security is at serious risk from armed combatants.
- Provides legal backing for the Armed Forces to act in domestic civilian areas. Currently, the armed forces act enables them to only act against enemies.
Arguments against AFSPA
- Provision for immunity of security forces urges them to act more brutally.
- Seen as a reason for increasing radicalization in insurgency ridden areas because of the little accountability for the excesses committed in discharge of power given by the act.
- Instances of abuse and extra-judicial killings in Manipur have been upheld by even Supreme court in 2016. The Supreme Court in this case ruled that the armed forces cannot escape investigation for excesses during the discharge of their duty even in “disturbed areas.”
- Though there are many violent insurrections in India which must be handled militarily but in the short run. Even after so many years, if the situation in these states has not changed, this points to some flaws in the law itself.
Checks and balances to stop misuse of AFSPA
- SC in 1998 on constitutionality of AFSPA: Upheld constitutional Validity of AFSPA. However, it suggested some measures that should be followed.
- A Suo-motto declaration can be made by the Central Government; however, it is desirable that the state government should be consulted by the Central Government before making the declaration.
- AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area.
- Declaration must be for a limited duration and there should be a periodic review of the declaration 6 months have expired.
- While exercising the powers conferred upon him by AFSPA, the authorized officer should use minimal force necessary for effective action.
- Santosh hedge commission on Manipur encounter
- FSPA was an impediment to achieving peace in regions such as J&K and the Northeast.
- The law needs to be reviewed every six months to see whether its implementation is necessary in states where it is being enforced.
- AFSPA does not provide blanket Immunity to the officers. Suggested fixing a period of three months for the central government to decide whether to prosecute security personnel engaged in extrajudicial killings or unruly behaviour in insurgency-hit regions.
- Action can be taken but with prior sanction of the Central Government.
- BP Jeevan Reddy Commission in 2004
- AFSPA should be repealed, and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967.
- Unlawful Activities (UAPA) Act should be modified to clearly specify the powers of the armed forces and paramilitary forces.
- Grievance redressal cells should be set up in each district where the armed forces are deployed.
- Second Administrative Reforms Commission
- Recommended to repeal of AFSPA, 1958. Its scrapping would remove sentiments of discrimination and alienation among the people of the Northeast India.
- Amend the Unlawful Activities (Prevention) Act, 1967 inserting a new chapter to deploy the armed forces of the Union in the North-eastern States.
- Supported a new doctrine of policing & criminal justice inherent in an inclusive approach to governance.
Army must be completely transparent in investigating allegations of violations of human rights and bringing the violators to speedy justice. Exemplary punishment must be meted out where the charges are proved.