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Recent ruling of Supreme court on AFSPA that armed forces cannot escape investigation for excesses in the course of the discharge of their duty even in “disturbed areas” ignited the debate on relevance of AFSPA and ramification of court ruling on armed forces . This judgment explicitly makes it clear that terrorists are not necessarily enemies of the state. What is AFSPA AFSPA, enacted in 1958, 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. 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. ‘Disturbed’ areas The state or central government considers those areas as ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.” 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. 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. Need Of AFSPA In the event of insurgencies and an increase in secessionist activities of militants, it becomes difficult for state governments to maintain the law and order of these ‘disturbed’ areas. In such a situation, the daily routine of ordinary civilians is disrupted. The main purpose of this act is for the armed forces to assist state governments in maintaining the law and order and ensure that civilian life goes on without interruptions. Removal of the act will lead to demoralizing the armed forces and see militants motivating locals to file lawsuits against the army. 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. No need of AFSPA: 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. There are adequate laws to deal with insurgency situations and the non-State actors. While India did not have specific laws in 1958 to deal with armed opposition groups, it has subsequently adopted numerous draconian laws such as the Terrorist and Disruptive Activities Prevention Act, 1985 and the Prevention of Terrorism Act (POTA), 2002. After the lapse of these laws, the government of India amended the Unlawful Activities (Prevention) Act of 1967 in December 2004 to incorporate the provisions of the POTA 2002. The Unlawful Activities (Prevention) Act of 1967 as amended in 2004 is adequate to deal with all insurgent groups and their unlawful activities. the strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences against the innocents and punishment for breaches of such provisions while exercising executive powers; and not in providing the arbitrary powers to the law enforcement personnel to be law unto themselves This act has failed to contain terrorism and restore normalcy in disturbed areas, as the number of armed groups has gone up after the act was established. Many even hold it responsible for the spiraling violence in areas it is in force. Common people see it as ‘Right to Kill’ Act. Since its inception many Human Rights organizations and civil societies have been opposing it. The decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. Hence, several cases of human rights violations go unnoticed. It is inhumane to make people live in curfew like conditions for their entire lives. The justice Jeevan Reddy Committee was set up in 2005 to review AFSPA and make recommendations. It recommended that AFSPA should be repealed and the Unlawful Activities Protection Act strengthened to fight militancy. This law is in contravention of India’s international law obligations contained in treaties such as the International Covenant on Civil and Political Rights (ICCPR) to which India is a state party. Conclusion: It is high time that concerted and sincere efforts should be made by the main four stakeholders — civil society, the insurgents, the State government and the Government of India to find a lasting and peaceful solution to the festering problem, with a little consideration from all quarters. It is never too late to bring peace and harmony in society.
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