Recently, the Nagaland Cabinet recommended that the Armed Forces Special Powers Act (AFSPA), 1958 be repealed from the state after the incident in Mon district in which security forces gunned down 13 civilians.
Back to Basics
What is AFSPA?
- The Act in its original form was promulgated by the British in response to the Quit India movement in 1942.
- After Independence, Prime Minister Jawaharlal Nehru decided to retain the Act, which was first brought in as an ordnance and then notified as an Act in 1958.
- 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 Punjab was the first state from where it was repealed, followed by Tripura and Meghalaya.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 Mizoram, Nagaland, Manipur, Assam, J&K, and parts of Arunachal Pradesh.
- AFSPA provides for special powers for the armed forces that can be imposed by the Centre or the Governor of a state, on the state or parts of it, after it is declared “disturbed’’ under Section 3.
- The Act defines these as areas that are “disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary’’.
- AFSPA has been used in areas where militancy has been prevalent.
- The Act, which has been called draconian, gives sweeping powers to the armed forces.
- It allows them to open fire’, even causing death, against any person in contravention to the law or carrying arms and ammunition.
- It gives them powers to arrest individuals without warrants, on the basis of “reasonable suspicion”, and also search premises without warrants.
- 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.
What is a disturbed area and who has the power to declare it?
- A disturbed area is declared by means of a notification under Section (3) of the AFSPA.
- An area can be considered disturbed if there are differences or disputes between different religious, racial, language, regional or caste groups.
- A whole or part of the state or union territory can be declared as a disturbed area by the Central Government, the Governor of the State or the Administrator of the Union Territory.
- As per Section (3) of the AFSPA, it is mandatory to seek the opinion of the state government that whether an area is disturbed or not. However, the state government’s opinion can be overruled by the governor or the centre.
- If an area is declared as the disturbed area, then it will be under the control of the armed forces for at least 3 months.
Are there safety nets?
- While the Act gives powers to security forces to open fire, this cannot be done without prior warning given to the suspect.
- 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. In the Mon operation, local law-enforcement agencies have said they were unaware of the operation.
What attempts have been made to repeal AFSPA in the past?
- In 2000, Manipur activist Irom Sharmila began a hunger-strike, which would continue for 16 years, against AFSPA.
- 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. The Centre appointed a five-member committee headed by Justice B.P. Jeevan Reddy in November 2004 to review the AFSPA. The committee recommended repealing of the AFSPA. It recommended that the Unlawful Activities (Prevention) Act, 1967, should be modified to specify the powers of the armed forces and the Central forces.
- The Second Administrative Reforms Commission, headed by Veeerapa Moily, endorsed these recommendations.
- Justice Verma report mentioned the Act as a part of a section on offences against women in conflict areas. “Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law,” the report said, adding that “there is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.” This resonates with the ruling by the Supreme Court in July that the Army and police are not free to use excess force even under the AFSPA. However, none of these have made any real difference to the status of the AFSPA.
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.
- In 2012 Manipur’ former Chief Minister was opposed to the repeal of AFSPA in light of the dangerous law and order situation.
What has been the social fallout?
- Nagaland and Mizoram faced the brunt of AFSPA in the 1950s, including air raids and bombings by the Indian military. Allegations have been made against security forces of mass killings and rape.
- It is in Manipur that the fallout has been perhaps best documented. The Malom massacre in 2000, and the killing and alleged rape of Thangjam Manorama led to the subsequent repeal of AFSPA from the Imphal municipal area.
- Human rights activists have said the Act has often been used to settle private scores, such as property disputes, with false tip-offs provided by local informants to security forces.
Have these excesses been probed?
- In 2012, the Extrajudicial Execution Victim Families Association of Manipur filed a case in the Supreme Court alleging 1,528 fake encounters between 1979 and 2012. Activists said these peaked in 2008-09.
- The Supreme Court set up a three-member committee investigated six cases of alleged fake encounters, including the 2009 killing of 12-year-old Azad Khan, and submitted a report with the finding that all six were fake encounters.
- The Court set up a special investigation team that included five CBI officials and one National Human Rights Commission member.
- AFSPA creates an atmosphere of impunity among even state agencies such as the Manipur Police and their Manipur Commandos, believed to be responsible for most encounters in the state, some of them jointly with Assam Rifles.
No prosecution in over 50 years
- Passed in 1958 when the Naga movement for independence had just taken off, AFSPA is a bare law with just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act.
- In 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram).
Arguments in Favour of AFSPA
- AFSPA boosts the morale (mental well-being) of the armed forces for ensuring the public order in the disturbed areas as removal of the Act would lead to militants motivating locals to file lawsuits against the army.
- Absence of such a legal statute would adversely affect organisational flexibility and the utilisation of the security capacity of the state armed forces cannot fulfill their assigned role.
- A strict law is needed to tackle the insurgent elements inside the country particularly in the Kashmir and northeastern region.
- With the powers given by AFSPA, the armed forces have been able to protect the borders of the country for decades.
Arguments against AFSPA
- Sometime imposition of AFSPA has been criticized as the federal government had not consulted the state government before declaring it a “disturbed area.” It drew attention to the lack of clarity as to what constitutes a “disturbed area” and the rather arbitrary manner in which AFSPA is being imposed in the country.
- If the aim of AFSPA was to restore normalcy in disturbed areas, it has failed
- Despite the extraordinary powers vested in their hands by AFSPA, the armed forces have not been able to quell India’s insurgencies
- Critics assert that there is no need to run the nation on the basis of the bullet while the issue could be addressed on the basis of the ballet (election).
Quote: “Accountability is a facet of the rule of law.”
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