Armed Forces (Special) Powers Act (AFSPA)

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• The Union government has extended the Armed Forces (Special) Powers Act (AFSPA) in Arunachal Pradesh and Nagaland. At the same time, the AFSPA has been removed from several areas in Northeast India.

About

• In Jammu and Kashmir (J&K) and Northeast India, the AFSPA is a contentious and unpopular law as it allows security services to operate without the risk of prosecution or requirement of a warrant. There have been repeated calls to repeal the law over the years.
• It has long been alleged that human rights violations and extrajudicial arrests and killings take place under the garb of AFSPA. A string of incidents in recent years have highlighted these concerns, ranging from the Mon killings to the fake encounter in Shopian in J&K.
  • In December 2021, a total of 14 civilians were killed in and after a botched Indian Army operation, according to MHA. 

What is Armed Forces (Special) Powers Act (AFSPA)?

• Origin of AFSPA:
  • The Act in its original form was promulgated by the British in response to the Quit India movement in 1942. 
  • After Independence, Prime Minister Jawaharlal Nehru decided to retain the Act, which was first brought in as an ordnance and then notified as an Act in 1958.
  • The Armed Forces (Special Powers) Act, enacted in the year 1958, grants extraordinary powers and immunity to the armed forces to bring back order in the “disturbed areas”.
  • The Act came into force in the context of increasing violence in the Northeastern States decades ago, which the State governments found difficult to control. 
• Meaning:
  • Armed forces 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 premises 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.
• Provisions:
  • Under Section 3, 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. 
    • An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities. 
  • Section 4 gives the Army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ammunition dumps, fortifications/shelters/hideouts and to stop, search and seize any vehicle.
  • Section 6 stipulates that arrested persons and the seized property are to be made over to the police with the least possible delay.
  • Section 7 offers protection of persons acting in good faith in their official capacity. 
  • The prosecution is permitted only after the sanction of the Central Government.

Rationale behind imposition of AFSPA

• Effective functioning of Security Forces: Armed Forces are deployed in counter-insurgency / terrorist operations when all other forces available to the State have failed to bring the situation under control.
  • Armed forces operating in such an environment require certain special powers and protection in the form of an enabling law.
• National Security:  The Act plays a crucial role in maintaining law and order in
• disturbed areas. Thus, protecting sovereignty and security of the nation.
• Boosting morale of Forces: AFSPA boosts the morale (mental well-being) of the armed forces for ensuring the public order in the disturbed areas as removal of the Act would lead to militants motivating locals to file lawsuits against the army.

Arguments against AFSPA

• Violation of the Human Rights: The exercise of these extraordinary powers by armed forces has often led to allegations of fake encounters and other human rights violations by security forces in disturbed areas while questioning the indefinite imposition of AFSPA in certain states.
  • Human rights violations in AFSPA areas are not inquired into and followed by adequate action. Thus, it is against the principle of natural justice.
• Violation of the right to remedy:  Section 6 of the Act “immediately takes away, abrogates, frustrates the right to constitutional remedy which has been given in article 32(1) of the Constitution.
  • AFSPA was outside the powers granted in the Constitution since it was declaring a state of emergency without following the Constitutional provisions for such a declaration.
• Ineffectiveness of the Act: Critics argue that this act has failed in its objective of restoring normalcy in disturbed areas although being in existence for about 50 years.

Way Ahead

• Compliance to Human Rights: It needs to be emphasised that human rights compliance and operational effectiveness are not contrarian requirements. In fact, adherence to human rights norms and principles strengthens the counter insurgency capability of a force. 
  • The Indian army has been recognised as an apolitical, secular and professional force by the country. The armed forces need to restructure their approach to operations in states where people are increasingly and rightly developing zero tolerance to human rights violations.
• Justice Jeevan Reddy Committee Recommendation: In 2005, this committee recommended that AFSPA be repealed, highlighting that the Act has become “a symbol of hate and an instrument of discrimination and high handedness”.
• Removing Ambiguity in Law: The terms like “disturbed”, “dangerous” and “land forces” need to be clearly defined to ensure greater clarity. 
• Development of Disturbed areas: AFSPA is required to counter insurgencies and lack of development in the Northeast region is also a major reason for the insurgency therefore the Government should take urgent steps to create new opportunities for growth and development.
• SC ruling on AFSPA: The constitutionality of AFSPA was challenged in the Supreme Court in 1997. A five-judge Constitution Bench unanimously upheld the law. Although the court agreed that the Constitution did provide for deployment of armed forces in aid of civil power, it held that such deployment can be permitted for a “temporary period” and “until a situation of normalcy was restored”.
  • The court said that while declaring a region as “disturbed area”, the opinion of the state government must be taken and there must be a periodic review of the situation.
  • A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into 

Source: TOI