Context:

The Union Ministry of Home Affairs (MHA) reintroduced the Armed Forces (Special Powers) Act (AFSPA) in five districts of Manipur.

Background

The Manipur government repealed AFSPA in April 2022, mentioning improved security and a greater sense of public safety. The Union Government restored AFSPA on November 14, 2024.

Armed Forces Special Powers Act (AFSPA)

In August 1942, the British colonial government enacted the Armed Forces Special Powers Ordinance to put down the Quit India Movement.

After independence, the Indian government used the Ordinance to address internal security issues resulting from India's partition.

Article 355 of the Constitution authorizes the Central Government to protect every state from internal conflicts.

India's Parliament passed the Armed Forces Special Powers Act (AFSPA) in 1958 to empower the Armed Forces to maintain public order in "disturbed areas."

When a state or part of it is designated as a "disturbed area" AFSPA can be declared, once declared disturbed, an area must remain so for at least six months.

Special Powers under AFSPA

An officer in the armed forces has the authority to arrest anyone without a warrant and may use force if necessary in a "disturbed area."

If a person violates the law or order in a disturbed area, army personnel may fire after warning or use other forms of force, even if it results in death.

Army personnel have the authority to enter and search any area or shelter to make arrests, and to destroy it if required.

Anyone arrested and taken into custody under AFSPA must be turned over to the officer in charge of the nearest police station.

Army officers have legal immunity for their actions, which means that no one can be prosecuted or sued for acting in accordance with the law.

The government's authority to declare an area as a 'disturbed area' is not subject to judicial review under AFSPA.

Why is AFSPA considered necessary for the armed forces?

AFSPA is considered necessary because it legitimizes the presence and actions of the military in extraordinary circumstances.

Repealing AFSPA would encourage insurgency and militancy, compromising the peace and stability of India.

The army requires extraordinary powers because they are only deployed when national security is seriously compromised and "extraordinary circumstances demand extraordinary measures."

Concerns

AFSPA has been criticized for human rights violations in the areas where it is implemented. It shields individuals from human rights violations and maintains cycles of violence.

Justice B P Jeevan Reddy Committee

The Justice B P Jeevan Reddy Committee recommended that AFSPA be repealed and appropriate provisions be inserted into the Unlawful Activities (Prevention) Act 1967. It also recommended that grievance cells be established in every district where armed forces are stationed.

Supreme Court on AFSPA

The Supreme Court ruled that the Central government can make a suo motu declaration, but the state government should be consulted before doing so. Also, the declaration must be for a limited time period, with a review every six months.

The Court stated that when exercising AFSPA powers, the authorized officer should use the least amount of force necessary to act. Any encounter carried out by the armed forces under AFSPA must be thoroughly investigated.

The Court stated that the law applies equally to both the victim and the aggressor, regardless of whether the victim is a common person, a militant, or a terrorist, and whether the aggressor is a common person or the government.

The Supreme Court’s committee under Santosh Hegde (2013) recommended making AFSPA more humane and ensuring greater accountability of security forces.

Way Forward

The government should consider imposing and lifting AFSPA on a case-by-case basis, limiting it to a few troubled districts rather than entire states. The government and security forces should follow the guidelines established by the Supreme Court, the Jeevan Reddy Commission, and the National Human Rights Commission (NHRC).

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Source:

THE HINDU