Armed Force Special Power act

Recent killings of civilians in the Nagaland by Assam Rifles in a botched operation has raised questions about the abuse of powers under the AFSPA act. There have been calls of repeal of the AFSPA act by the Naga groups as well as the CMs of Nagaland and Meghalaya.

Armed Forces Special Powers Act, 1958 (AFSPA)

AFSPA is an act of the Parliament of India that grants special powers to the Indian Armed Forces to maintain public order in “disturbed areas”.
Currently, AFSPA is applicable to the seven states of the North-East, i.e., Assam, Manipur, Mizoram, Arunachal Pradesh, Nagaland and Tripura. It was brought for J&K in 1990.
It was applied to Punjab in 1983 and later repealed.

Current Status in the Northeast States

AFSPA, was removed from entire Tripura in 2015 and from Meghalaya in 2018.
AFSPA continues to be in force in Assam, Manipur, Nagaland and three districts of Arunachal Pradesh.

Objective of enactment of AFSPA

Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as ‘disturbed’, to enable its armed forces to exercise the special powers.

Powers of the central and the State Government – Section 3

AFSPA empowers the governor of the state as well as the central government to declare any part of the state as a ‘disturbed area’, if in its opinion there exists a dangerous situation in the said area which makes it necessary to deploy armed forces in the region.

Powers provided to Army officers under the AFSPA – Section 4

After giving due warning, fire upon or use other kinds of force even if it causes death.
Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp.
To arrest without a warrant anyone who has committed cognizable offences or is suspected of having done so and may use force if needed for the arrest.
To enter and search any premise to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.
Stop and search any vehicle or vessel suspected to be carrying such person or weapons.
Any person arrested and taken into custody under this act shall be made present over to the officer in charge of the nearest police station with least delay, together with a report of the circumstances occasioning the arrest.
Army officers have legal immunity for their actions.
There can be no prosecution, suit, or any other legal proceeding against anyone acting under that law.
Protection of persons acting in good faith under this act from prosecution, suit, or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this 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.

Declaration of disturbed areas:

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 authorised officer should use minimal force necessary for effective action.
The authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.

Santosh Hegde commission on Manipur encounter

AFSPA 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.

Way Forward

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.