Armed Forces (Special Powers) Act (AFSPA), 1958

• The statement made by the Prime Minister this year, to the people of the North-east to the effect that the Government intends withdrawing the much-dreaded Armed Forces (Special Powers) Act 1958, or AFSPA, completely from the region
• This follows its partial withdrawal from parts of Assam, Nagaland, Arunachal Pradesh, and Manipur in March this year could spell tidings for the denizens of these States.

What is AFSPA?

• A colonial era legislation that was enacted to quell the protests during the Quit India movement, the AFSPA was issued by way of four ordinances in 1947.
• The ordinances were replaced by an Act in 1948 and the present law effective in the Northeast was introduced in Parliament in 1958
• The ASFPA gives unfettered powers to the armed forces and the Central armed police forces deployed in “disturbed areas”
• It allows them to open fire, even causing death, against any person in contravention to the law or carrying arms and ammunition.
• Also, it gives them powers to arrest individuals without warrants, on the basis of “reasonable suspicion”, and search premises without warrants.
• The law first came into effect in 1958 to deal with the uprising in the Naga Hills, followed by the insurgency in Assam.

Disturbed Areas:

• The Act was amended in 1972 and the powers to declare an area as “disturbed” were conferred concurrently upon the Central government along with the States.

Controversy around the Act

Human Rights Violations:

• The exercise of these extraordinary powers has often led to fake encounters and other human rights violations by security forces
• Example: Custodial rape and killing of the Thangjam Manorama by the Assam rifles in 2004

Misuse of Absolute Power:

• The power to shoot on sight violates the fundamental right to life, making the soldier on the ground the judge of the value of different lives and people the mere subjects of an officer’s discretion.

Violates Fundamental Rights:

• The power of arbitrary arrest and detention given to the armed forces goes against the fundamental right vested in Article 22

Immunity against any Punitive Action

• The act provides immunity to the armed forces against prosecution, suit or another legal proceeding, which shall be instituted only with the previous sanction of the central government.

Supreme Court Views on the Act

• The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgment (Naga People’s Movement of Human Rights v. Union of India).

Supreme Court Orders – 2016

The Supreme Court judgement said:

• Every death in the ‘disturbed areas’, be it of a common person or insurgent, should be thoroughly enquired by the CID at the instance of the NHRC
• Not every armed person violating the prohibitory order in a disturbed area is an enemy. Even though he is considered an enemy a thorough investigation has to be conducted, since every citizen of India is entitled to all the fundamental rights including Article 21 of the constitution.
• Even if the enquiry finds the victim to be an enemy, a probe should look into whether excessive or retaliatory force was used.
• There is no concept of absolute immunity for army personnel who commit a crime.

Recommendations of Jeevan Reddy Committee:

• In November 2004, the Central government appointed a five-member committee headed by Justice B P Jeevan Reddy to review the provisions of the act in the northeastern states.

The committee recommended that:

• AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967
• The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and Grievance cells should be set up in each district where the armed forces are deployed.

Current Status: There is gradual reduction in areas under the Act

Reasons

• Improvement in the security situation
• An increase in development activity in the region
• On the political side much headway has been made in moving towards a political solution like peace accords, ceasefire and creation of sub-regional administrative arrangements.

Way forward

• The AFSPA has become a symbol of oppression in the areas it has been enacted. Hence the government needs to address the affected people and reassure them of favourable action.
• The armed forces must build the necessary trust amongst the locals to ensure their support in countering insurgency.
• The state bureaucracy, army, and the grass-root civil society organization should come together in the developmental activities of the state.

Source: The Hindu