ARMED FORCES SPECIAL POWER ACT (AFSPA)

Security Issues Internal Security

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Current status

· It is in force in Assam, Jammu and Kashmir, Nagaland, and 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.

AFSPA: Key Facts

Requirement

· The government (either the state or centre) considers those areas to be ‘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 Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the centre has the authority to send in armed forces for civilian aid. It is still unclear whether the governor has to prompt the centre to send in the army or whether the centre on its own sends in troops.

· 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, as in Tripura’s case, can suggest whether the Act is required to be enforced or not. But under Section (3) of the Act, their opinion can still be overruled by the governor or the centre.

· Originally, it came into being as an ordinance in 1958 and within months was repealed and passed as an Act. But, this was meant only for Assam and Manipur, where there was insurgency by Naga militants. But after the northeastern states were reorganized in 1971, the creation of new states (some of them union territories originally) like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA Act to be amended, so that it could be applied to each of them. They may contain different sections as applicable to the situation in each state.

· Jammu and Kashmir (as with a lot of things) has a separate legislation for this—its own Disturbed Areas Act (DAA) which came into existence in 1992. So, as this Indian Express article points out, even if the DAA for J&K lapsed in 1998, the government reasoned that the state can still be declared disturbed under Section(3) of AFSPA.

· It was applied in Punjab and Chandigarh in 1983 due to secessionist movements and lasted for 14 years until there 1997. What is interesting was that while the Punjab government withdrew its DAA in 2008, it continued in Chandigarh till September 2012 when the Punjab and Haryana high court struck it down following a petition filed by a local member of the Janata Dal (United).

Issues

· It has been dubbed as a license to kill. The main criticism of the Act is directed against the provisions of Section 4, which gives the armed forces the power to open fire and even cause death, if prohibitory orders are violated.

· Human rights activists object on the grounds that these provisions give the security forces unbridled powers to arrest, search, seize and even shoot to kill.

· Activists accuse the security forces of having destroyed homes and entire villages merely on the suspicion that insurgents were hiding there. They point out that Section 4 empowers the armed forces to arrest citizens without warrant and keep them in custody for several days.

· They also object to Section 6, which protects security forces personnel from prosecution except with the prior sanction of the central government. Critics say this provision has on many occasions led to even non-commissioned officer’s brazenly opening fire on crowds without having to justify their action.

· Critics say the 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. 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.

Views of authorities

Views of Reddy committee

· A committee headed by Justice Jeevan Reddy was appointed in 2004 to review AFSPA. Though the committee found that the powers conferred under the Act are not absolute, it nevertheless concluded that the Act should be repealed. However, it recommended that essential provisions of the Act be inserted into the Unlawful Activities (Prevention) Act of 1967.

Views of ARC

· The Second Administrative Reforms Commission headed by then Union law minister M Veerappa Moily also recommended that AFSPA should be repealed and its essential provisions should be incorporated in the UAPA. If this course of action is adopted, it would be a retrograde step that will substantially harm the national cause.

Views of Army

· The Army clearly sees AFSPA as a capstone enabling Act that gives 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 demoralizing 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.

Views of Supreme Court

· The Supreme Court of India recently ruled that the armed forces cannot escape investigation for excesses in the course of the discharge of their duty even in “disturbed areas”.

· The central government should sanction prosecution where prima facie cases existed. The army must make it mandatory for its battalions to take police personnel and village elders along for operations which involve the search of civilian homes and the seizure of private property.

· The practical problems encountered in ensuring transparency in counter-insurgency operations must be overcome by innovative measures.