The AFSPA Debate

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TOPIC:

General studies 2

• Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections

General studies 3

• Security challenges and their management in border areas; linkages of organized crime with terrorism
• Various Security forces and agencies and their mandate

In News: The Armed Forces Special Powers Act commonly known as AFSPA came in to force decades ago in the context of increasing violence in the North Eastern states. Passed in 1958 for North East and in 1990 for Jammu and Kashmir, the law gives armed forces necessary powers to control disturbed areas which are designated by the govt.

Under the provisions of the AFSPA armed forces are empowered with immunity from being prosecuted to open fire, enter and search without warrant and arrest any person who has committed a cognizable offence. As of now this act is in force in Jammu and Kashmir, Assam, Nagaland and parts of Arunachal Pradesh and Manipur.

What does the AFSPA mean?

In simple terms, 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 premise 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.

What’s the origin of AFSPA?

The Act came into force in the context of increasing violence in the North-eastern States decades ago, which the State governments found difficult to control. 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.

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. As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.

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.

Which States are, or had come under this Act?

It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh. The Centre revoked it in Meghalaya on April 1, 2018. Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border. In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations and in Tirap, Longding and Changlang districts bordering Assam.

Tripura withdrew the AFSPA in 2015. Jammu and Kashmir too have a similar Act.

How has this Act been received by the people?

It has been a controversial one, with human rights groups opposing it as being aggressive. Manipur’s Irom Sharmila has been one if its staunchest opponents, going on a hunger strike in November 2000 and continuing her vigil till August 2016.

The validity of the AFSPA has periodically come under scrutiny –

• A constitutional bench had upheld the act in the Naga People’s Movement of Human Rights, the Justice B.P. Jeevan Reddy committee advised the government to repeal it.
• Now the recent order of the Supreme Court is a landmark in the rights discourse in the country, where one may say that the court adopts an approach consistent with constitutional guarantees of life and liberty and dismantles the incessant and unreflective argument based on extreme notions of security and order.

Jeevan Reddy committee: 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.

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.

Supreme Court’s order outlines three crucial principles:

1. One, the “order situation in Manipur is, at best, an internal disturbance. There is no threat to the security of the country or a part thereof either by war or an external aggression or an armed rebellion”.
2. Two, “for tackling the internal disturbance, the armed forces of the Union can be deployed in aid of the civil power. The armed forces do not supplant the civil administration but only supplement it”.
3. Three, “the deployment of the armed forces is intended to restore normalcy and it would be extremely odd if normalcy were not restored within some reasonable period, certainly not an indefinite period or an indeterminate period”.

Connecting the Dots:

1. The Armed Forces (Special Powers) Act (AFSPA) has always had active government support, but also vehement opposition. What is your view in this regard? Discuss.
2. What was the genesis of the Armed Forces Special Powers Act (AFSPA)? Is it high time that we revisit the need of this act keeping in mind the recent unrest and discontent it has brought in certain parts of the country? Critically analyse.
3. Whether or not the Armed Forces Special Powers Act (AFSPA) should continue in the areas declared as ‘disturbed’ is a political question which requires consultations at the ground of its operation. Unfortunately, the lack of political will in this regard has further alienated the people in these areas. What is your assessment of this argument? Critically examine.