AFSPA

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What is AFSPA?

AFSPA was enacted in 1958 amid the nascent Naga insurgency. It gives powers to the army and state and central police forces to shoot to kill, search houses and destroy any property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry.

Security forces can “arrest without warrant” a person, who has committed or even “about to commit a cognizable offence” even on “reasonable suspicion”. It also protects them from legal processes for actions taken under the act.

Which states are under AFSPA?

It is in force in Assam, Jammu and Kashmir, Nagaland, Manipur (except the Imphal municipal area). In Arunachal Pradesh, only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam come under its purview. And in Meghalaya AFSPA is confined to a 20-km area bordering Assam.

How is a region declared ‘disturbed’?

Section (3) of the AFSPA empowers the

governor of the state or Union territory to issue an official notification in The Gazette of India, following which the Centre has the authority to send in armed forces for civilian aid.

Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.

What is state government’s role?

The state governments can suggest whether the act is required to be enforced or not. But under Section (3) of the act, their opinion can be overruled by the governor or the Centre.

Is the act uniform in nature?

Initially, it was meant only for Assam and Manipur, where there was an insurgency by Naga militants. After the reorganisation of the northeast in 1971, the creation of new states like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA to be amended, so that it could be applied to each of them. The amendments contain different sections as applicable to the situation in each state.

What are the criticism of AFSPA?

Criticism of AFSPA:

1. Violating fundamental rights as can be seen1. 1. Sec 4(a) in which army canshoot to kill violates article 21 which gives right to life.2. Section 4(b) search without warrants violates right to liberty and article 22.3. Dispersion of civil assembly by armed forces under section 121 violates right to assembly4. No judicial magistrate permission required while arresting –violate article 225. Stop and search any vehicle2. Overrides CrPC.3. Violation of human rights4. Abuses by army, and are rarely punished for crimes.5. It alienates the people from army and then from the rest of the India. A feeling of other worldly is generated in their mind.

Why Army favors AFSPA?

It the powers necessary to conduct counter-insurgency operations efficiently.

If AFSPA is repealed or diluted, it is the army leadership’s considered view that the performance of battalions in counter-insurgency operations will be adversely affected and the terrorists or insurgents will seize the initiative.

Many argue that removal of the act will lead to demoralising the armed forces and see militants motivating locals to file lawsuits against the army.

Also, the forces are aware that they cannot afford to fail when called upon to safeguard the country’s integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilization of combat capability. This includes safeguards from legal harassment and empowerment of its officers to decide on employment of the minimum force that they consider essential.

The absence of such a legal statute would adversely affect organizational flexibility and the utilization of the security capacity of the state. This would render the security forces incapable of fulfilling their assigned role.

AFSPA is necessary to maintain law and order in disturbed areas, otherwise things will go haywire. The law also dissuades advancement of terrorist activities in these areas.

Also, extraordinary situations require special handling. As the army does not have any police powers under the Constitution, it is in the national interest to give it special powers for operational purposes when it is called upon to undertake counter-insurgency operations in disturbed areas.

What are the safeguards provided under AFSPA?

Section 5 of the Act already mandates that arrested civilians must be handed over to the nearest police station ‘with the least possible delay’ along with a report of ‘circumstances occasioning the arrest.’

Army HQ has also laid down that all suspects who are arrested will be handed over to civilian authorities within 24 hours.

Regarding firing on civilians, the army’s instructions are that fire may be opened in towns and villages only in self defence and that too when the source of terrorist or militant fire can be clearly identified.

What should be done?

1. Jeevan Reddy Committee recommended AFSPA be repealed and some of its provisions incorporated in other laws such as CrPC, unlawful activities which give protection to forces.2. Create committees at district level with representatives of army, administrators and public which will report, assess and track complains in that area.3. All investigations should be time bound reasons for the delay must be communicated with the aggrieved.4. All cases of human rights violation should be fast tracked.5. Amendments In Laws :The lacunae in the Act, as a result of definitional voids with respect to terms like “disturbed”, “dangerous” and “land forces” need to be amplified to ensure greater clarity6. The onus of proving the alleged person as terrorists should lie with the forces. Sec 7 should be suitable amended to this effect.

What is the SC ruling in this regard?

Army and paramilitary forces cannot use excessive and retaliatory force during counter-insurgency operations in disturbed areas declared disturbed under the AFSPA

Criminal courts have the jurisdiction over cases of alleged excesses by security forces which earlier were under blanket of immunity provided by AFSPA

Court said it does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both

The provisions of the Armed Forces (Special Powers) Act and the purported immunity it offers to the use of force “even to the extent of causing death” are not invincible.

Such legal protection has to yield to larger principles of human rights, and no allegation of the use of excessive or retaliatory force can be ignored without a thorough inquiry. This is a requirement both of democracy and for the preservation of the rule of law.