Why in news:
The Union Home Ministry (MHA) on Thursday extended the Armed Forces (Special Powers) Act (AFSPA) in Nagaland and parts of Arunachal Pradesh for another six months.
According to the notification, AFSPA has been extended to 21 police stations across eight districts of Nagaland and five other districts. In Arunachal Pradesh, it has been extended to areas under the jurisdiction of three districts and three police stations of Namsai district.
Armed Forces (Special Powers) Act (AFSPA)
Armed Forces (Special Powers) Act (AFSPA), enacted in 1958, is a law passed by the Parliament of India that provides special powers to the Indian Armed Forces in regions designated as “disturbed areas.” This act was initially applied to the Naga Hills, part of Assam at the time, on September 11, 1958, marking the beginning of its implementation. Over the years, AFSPA’s jurisdiction expanded to encompass the other states in India’s Northeast, known collectively as the Seven Sister States.
Similar acts were also enacted in other parts of India. In 1983, AFSPA was extended to Punjab and Chandigarh but was later withdrawn in 1997, about 14 years after its implementation. Another version of the act was introduced in Jammu and Kashmir in 1990 and remains in effect.
History
Origin: Armed Forces Special Powers Ordinance of 1942
Context: This ordinance, introduced by the British colonial government on 15 August 1942 to suppress the Quit India Movement, was the precursor to AFSPA. Its objective was to reduce the pace of the movement by providing special powers to the armed forces.
Post-independence adaptation: Following the partition of India in 1947, the Government of India adopted and promulgated four ordinances to manage the resulting internal security situation in various areas, including Bengal, Assam, East Bengal and the United Provinces. These ordinances laid the groundwork for the subsequent AFSPA law.
Armed Forces Special Powers (Assam and Manipur) Act, 1958
The Naga National Council’s declaration of independence in 1951 and the subsequent boycotts and rebellions required a strong response from the Assam government, leading to the deployment of the Assam Rifles and the enactment of the Assam Disturbed Areas Act in 1955.
Act: Facing intense insurgency, the Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated by President Dr. Rajendra Prasad on May 22, 1958 and later on September 11, 1958, the Armed Forces (Assam and Manipur) Special Was replaced by the Powers Act.
Provisions and Scope: The Act authorized state governors and administrators of union territories to declare areas as ‘disturbed’ to facilitate the deployment of armed forces. It was expanded to cover all seven states of the North-East, emphasizing the role of the central government under Article 355 of the Constitution to maintain order.
Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
This Act was introduced on October 6, 1983 specifically for the State of Punjab and the Union Territory of Chandigarh, providing additional powers to the armed forces, including the power to stop, search and seize vehicles and if necessary So the right to break open locks was included. ,
Repeal and consequences: Withdrawn in 1997, the Act remained in force for 14 years. However, the Disturbed Areas Act remained in effect in Chandigarh until it was struck down by the High Court in 2012.
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
Enacted in September 1990, this version of the AFSPA was tailored for the Union Territory of Jammu and Kashmir, allowing it to be implemented if the Governor or the Central Government considered any part of the territory to be in a disturbed and dangerous situation.
What are the ground rules of the act?
Use of force with warning: The Act authorizes security forces to use force, including firing, but says such force can be used only after giving prior warning to the suspect. The purpose of this provision is to ensure that the use of deadly force is a measure of last resort.
Detention and handover procedure: Suspects detained by the armed forces under the provisions of AFSPA are required to be handed over to the nearest police station within 24 hours. This rule is designed to ensure that civilian law enforcement agencies can take appropriate legal action against detained persons.
Cooperation with civil administration: The Act provides that the armed forces should work closely with the district administration. This ensures that military actions are coordinated with civilian governance structures and that no unilateral military actions take place without oversight from civilian authorities.
Declaration of Disturbed Areas: The Governor of a State or the Central Government has the authority to declare any area within the State as a “disturbed area”. Such declarations may be made if deemed necessary to prevent terrorist activities or any other activities which threaten the sovereignty and national integrity of India, or insult the national flag, anthem or Constitution.
Notification and Period: According to Section 3 of AFSPA, if the Governor of a State issues an official notification in the Gazette of India, it signifies the authorization of the Central Government to deploy armed forces to assist the civil authorities. Once an area is declared “disturbed”, the designation must be maintained for a minimum period of three months, as mandated by the Disturbed Areas (Special Courts) Act of 1976.
Opposition to AFSPA
Sweeping powers to the armed forces: Critics argue that the AFSPA provides overly broad powers to the armed forces, including the power to use lethal force, arrest without warrant based on “reasonable suspicion”, and conduct searches without warrant. Due to this, the Act has been described as harsh by various human rights organizations, activists and sections of the public.
Potential for abuses and human rights violations: The provision that allows security forces to open fire under certain conditions, potentially resulting in death, has been particularly controversial. There are numerous reports and allegations that this power is being misused in the form of extrajudicial killings, also known as “fake encounters”, and ill-treatment of civilians.
Legal immunity for security personnel: AFSPA provides a significant level of immunity to security personnel, stipulating that no prosecution, suit or any legal proceedings can be initiated against them without the prior permission of the Central Government. Critics argue that this broad immunity has led to a lack of accountability for human rights abuses committed under the cover of the Act.
Arguments in favor of AFSPA
Necessity in insurgency-affected areas: Proponents of the AFSPA argue that the Act is necessary in areas where normal laws are inadequate to deal with extremism and terrorism. It is seen as an important tool for the armed forces in areas that often face acts of terror and violence perpetrated by insurgents with the support of external entities.
Protection against proxy wars: Insurgency movements in some parts of India are viewed as proxy wars waged by external forces. AFSPA provides the necessary legal framework and protection to the armed forces to effectively counter such threats and protect national sovereignty.
Operational efficiency of the armed forces: The Army has consistently maintained that AFSPA is critical to its operations in disturbed areas, arguing that the special powers granted by the Act are essential to effectively deal with domestic terrorists and external threats.
The controversy surrounding AFSPA is rooted in the tension between national security interests and the protection of human rights. While the government and security forces argue that the Act is essential for combating insurgency and terrorism, human rights advocates call for its repeal or amendment, citing concerns over abuse, lack of accountability, and the overarching impact on the civilian populations of disturbed areas.
Supreme Court’s stance on AFSPA
In the landmark judgment Naga People’s Movement of Human Rights v. Union of India (1998), the Supreme Court of India upheld the constitutionality of AFSPA. The Court recognized the necessity of the Act in certain circumstances but stressed the importance of its responsible application. Key points of the decision include:
- The Central Government can declare areas as ‘disturbed’ but it is advisable to consult the State Government.
- Declarations under AFSPA should be of limited duration and subject to periodic review every six months.
- The armed forces are mandated to use the minimum force necessary to achieve their objectives.
- The decision highlighted the need for a balance between ensuring national security and protecting human rights.
Recommendations for AFSPA repeal and reform
Jeevan Reddy Committee
In November 2004, the Central government appointed a committee headed by Justice B.P. Jeevan Reddy to review AFSPA’s provisions, especially in the northeastern states. The committee’s findings were stark, labeling AFSPA as a “symbol of hate, oppression, and instrument of high-handedness”. Recommendations included:
- Repeal of AFSPA and incorporate necessary provisions in the Unlawful Activities (Prevention) Act, 1967 to ensure clarity on the powers of the armed forces.
- To amend the Unlawful Activities (Prevention) Act to specify the powers of the armed forces and paramilitary forces.
- Establishing complaint cells in every district where armed forces are deployed.
Second Administrative Reforms Commission (ARC)
The 5th Report on Public Order by the 2nd ARC stressed the need to repeal the AFSPA, highlighting the controversial nature of the Act and the imperative of reforms that better balance security and human rights.
Supreme Court decision on accountability (2016)
In a significant 2016 judgment, the Supreme Court declared that the armed forces cannot claim immunity from investigation of alleged excesses in ‘disturbed areas’, making it clear that the legal protection under AFSPA is not absolute. The judgment underlines the judiciary’s stance on accountability and the importance of protecting human rights even in conflict zones.
Way forward
Addressing Human Rights Concerns: Documented data shows a pattern of human rights violations (extrajudicial killings, arbitrary arrests) under AFSPA.
Urges government engagement with affected communities for reforms and accountability.
Getting local support: Conflict resolution data suggest military operations with local support achieve greater success.
Emphasizes the need for transparency, accountability, and community development for trust-building.
Collaborative Development Efforts: Data indicates that development projects involving state bureaucracy, armed forces, and civil society lead to better social and economic outcomes.
Proposes using AFSPA as part of a broader peace and development strategy.
Case-by-Case Application of AFSPA: Supports a targeted application of AFSPA, informed by detailed security analyses of specific districts.
Aims to reduce unnecessary impact on civilian life by focusing on high-intensity conflict zones.
Compliance to legal and ethical guidelines: Stresses compliance with Supreme Court guidelines, Jeevan Reddy Commission recommendations, and NHRC directives.
Calls for legal and ethical safeguards against abuse, ensuring accountability and review.
Conclusion
A data-driven approach to reforming the AFSPA includes addressing human rights concerns through engagement with affected communities, building local support for counter-insurgency efforts, promoting collaborative development projects, implementing the Act on a more targeted basis and strictly following established legal and ethical guidelines. Such an approach aims to balance national security imperatives with the need to protect and promote human rights, thereby leading to a more durable and just resolution of conflicts in AFSPA-designated areas.