WORKING OF ARMED FORCES SPECIAL POWER ACT (AFSPA)

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Context:

The Supreme Court recently closed the criminal proceedings against 30 Army personnel accused of killing 13 civilians (tribals) in a 2021 botched-up military operation to ambush militants in Nagaland’s Mon district.

What is AFSPA?

Meaning

• AFSPA gives armed forces the power to maintain public order in “disturbed areas”.
• They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law.
• If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search a premises without a warrant; and ban the possession of firearms.
• Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

Origin of AFSPA

• The Act in its original form was promulgated by the British in response to the Quit India movement in 1942.
• The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958.
• It became known as the Armed Forces Special Powers Act, 1958.
• After Independence, the Act came into force, was meant only for Assam and Manipur, where there was insurgency by Naga militants.
• But after the northeastern states were reorganized in 1971, the creation of new states (some of them union territories originally) like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA Act to be amended, so that it could be applied to each of them.

What is a “disturbed area” and who has the power to declare it?

• A disturbed area is one which is declared by notification under Section 3 of the AFSPA.
• An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.
• The Central Government, or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area. A suitable notification would have to be made in the Official Gazette.
• The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments.

Provisions

• As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
• Under section 4 of this act any commissioned officer may after giving due warning, fire upon or otherwise use force, even to the causing of death, against any person, destroy any arms dump, arrest without warrant, enter and search without warrant any premises.
• The Act further says that after any suspects apprehended by security forces should be handed over to the local police station within 24 hours.
• It says armed forces must act in cooperation with the district administration and not as an independent body.
• The Act further provides blanket impunity to security personnel involved in such operations: There can be no prosecution or legal proceedings against them without the prior approval of the Centre.

Instances of imposition and repeal

• AFSPA has been imposed on the Northeast states, Jammu & Kashmir, and Punjab during the militancy years.
• Punjab was the first state from where it was repealed, followed by Tripura and Meghalaya.
• It remains in force in Nagaland, Manipur, Assam, J&K, and parts of Arunachal Pradesh.

The need for AFSPA

• The Indian Army is of the view that AFSPA is crucial to combat insurgency in the country and protect the borders.
• The security forces cannot operate without the cover of AFSPA in a virulent insurgency as there would be hesitation son their actions leading to the advantage of insurgents.
• Army officials also cite the need to protect the morale and integrity of the army as a reason not to scrutinize allegations against army personnel.

Controversies surrounding AFSPA

• Fake Encounters: There have been multiple allegations of “fake encounters” and other human rights violations by the security forces in ‘disturbed’ areas.
• A public interest litigation (PIL) filed in the Supreme Court claimed that at least 1,528 extra-judicial killings took place in Manipur between 2000 and 2012.
• Custodial Death: The petition alleged that a majority of these killings were carried out in cold blood while the victims were in custody and were allegedly tortured.

What attempts have been made to repeal AFSPA in the past?

• Manipur Protest: In 2000, Manipur activists a hunger-strike, which would continue for 16 years, against AFSPA.
• Reddy Commission: In 2004, the UPA government set up a five-member committee under a former Supreme Court Judge. The Justice Jeevan Reddy Commission submitted its report in 2005, saying AFSPA had become a symbol of oppression and recommending its repeal.
• 2^nd ARC: The Second Administrative Reforms Commission, headed by Veerapa Moily, endorsed these recommendations.
• UPA Government: The UPA set up a cabinet sub-committee to continue looking into the matter.
• NDA Government: The NDA government subsequently dropped the sub-committee and also rejected the findings of the Reddy Commission.

How often have state governments opposed it?

• While the Act empowers the Centre to unilaterally take a decision to impose AFSPA, this is usually done informally in consonance with the state government.
• The Centre can take a decision to repeal AFSPA after getting a recommendation from the state government.
• However, Nagaland, which has freshly recommended a repeal, had raised the demand earlier too, without success.
• The Centre had also imposed AFSPA in Tripura in 1972 despite opposition from the then state government.

Way forward

• Proper implementation of bottom up governance to empower grassroot communities.
• Armed forces must adhere to human rights and principles for further strengthen their capabilities in counter insurgency.
• Proper implementation of tribal holistic development programs like Pradhan Mantri Janjatiya Unnat Gram Abhiyan, as Enhance connectivity and infrastructure development will directly impact the security scenario of this region in long run.
• Reconsideration of Jeevan Reddy commission recommendation which highlighted the Act as a symbol of hate and instrument of discrimination.
• While declaring a region “disturb area” state government and local administration opinion must consider and periodic review of the situation.
• Prioritizing the peace accords for rehabilitation.

Must read articles

AFSPA in Assam: https://www.iasgyan.in/daily-current-affairs/afspa-in-assam#:~:text=AFSPA%20is%20a%20law%20that,a%20violation%20of%20human%20rights.

AFSPA: https://www.iasgyan.in/daily-current-affairs/afspa-47

Sources:

https://www.livemint.com/Politics/ZppBTWeVoJCVAKRIjyhCVI/AFSPA-explained-How-does-it-work-exactly.html

https://getlegalindia.com/afspa/#google_vignette

https://www.indiacode.nic.in/handle/123456789/1527?view_type=browse

https://hubnetwork.in/is-afspa-the-need-of-the-hour-or-a-social-evil/ 

PRACTICE QUESTION Q.The continuation of the Armed Forces Special Powers Act as an instrument protecting Indian territorial interests cannot be disregarded, notwithstanding considerable opposition. 150 words