THE AFSPA ACT
According to the Ministry of Home Affairs (MHA), AFSPA is being removed from 15 police station areas in seven districts of Nagaland, Manipur, 23 districts entirely and one district partially in Assam.
Historical background:
Pre-Independence: The AFSPA like many other controversial laws is of a colonial origin. The AFSPA was first enacted as an ordinance against the backdrop of the Quit India Movement launched by Mahatma Gandhi in 1942. A day after its launch on August 8, 1942, the movement became leaderless and turned violent in many places across the country. Leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel, and a host of others had been put behind the bars. Shaken by the massive scale of violence across the country, the then Viceroy Linlithgow promulgated the Armed Forces (Special Powers) Ordinance, of 1942. This Ordinance practically gave the Armed Forces a “license to kill” when faced with internal disturbances.
Post-Independence: The Indian Parliament has enacted three different acts under AFSPA for different regions:
1. Armed Forces Special Powers (Assam and Manipur) Act, 1958: AFSPA was first enacted to deal with the Naga insurgency in the Assam region.
2. The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983: The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act in 1983, To enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh which was battling the Khalistan movement in the 1980s.
3. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990: The AFSPA in Jammu & Kashmir was enacted in 1990 to tackle the unprecedented rise in militancy and insurgency in Jammu and Kashmir.
What is AFPSA?
The Governor of a State and the Central Government are empowered to declare any part or full of any state as a disturbed area if according to their opinion that it has become necessary to disrupt the terrorist activity or any such activity that might impinge on the sovereignty of India or cause insult to the national flag, anthem or India’s Constitution.
Section (3) of AFSPA provides that, if the governor of a state issues an official notification in The Gazette of India then the Central government has the authority to deploy armed forces for assisting the civilian authorities. Once a region is declared ‘disturbed’ then it has to maintain the status quo for a minimum of three months, as per, The Disturbed Areas Act of 1976.
Section (4) of the Act states that any commissioned officer, warrant officer, non-commissioned officer, or any other person of equivalent rank in the armed forces in a disturbed area may have the following powers- If he thinks that to maintain public order it is necessary to fire upon or use force, even to the extent of causing death, against any individual who is deemed to be acting in contravention of any law that is in force in a disturbed area. If he believes that it is necessary to destroy any arms dump, prepared or fortified position, or shelter from which armed attacks are made or are likely to be made or are attempted to be made. Even the structure was used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offense. Any individual who has committed a cognizable offense or against whom a reasonable suspicion exists that he/she has committed or is about to commit a cognizable offense can be arrested without a warrant and may use such force as necessary to carry out an arrest. An enter and search without a warrant is provided for any location to carry out such arrests or to apprehend any individual believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition, or explosives believed to be kept unlawfully in such premises and for this purpose reasonable amount of force can be used if necessary.
What is a disturbed area?
A disturbed area is declared by notification under Section 3 of the AFSPA. An area can be disturbed due to differences or disputes between members of different religious, racial, language, or regional groups or castes or communities. 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.
What has the Supreme Court said about AFSPA?
1. 1997 Supreme Court judgment on AFSPA: In Naga People's Movement for Human Rights vs Union of India 1997, a Constitution Bench ruled that the ability to use deadly force under Section 4(a) of the AFSPA should only be used in "certain circumstances." This judgment advocated “caution and use of minimum force against our own people” in AFSPA regions.
2. Extra-Judicial Execution Victim Families Association (EEVFAM) v Union of India 2017: The Supreme Court addressed extrajudicial executions in 2016, clarifying that Section 6 of the AFSPA does not offer officers "complete immunity" from any investigation into their alleged misconduct. The government received severe criticism from the Supreme Court in 2016 for the continuance of AFSPA.
The argument in Favour of AFSPA:
AFSPA is described as a law that takes a straightforward approach to control criminal activity in disturbed areas. Fascist techniques and all groups, private and public, that engage in violence and attempt to pressure the government by organized violence must be controlled. As a result, the AFSPA is vital.
Arguments Against AFSPA:
1. Symbol of Hatred: The BP Jeevan Reddy Committee, which was founded in 2004, criticized AFSPA as a symbol of hatred, persecution, and a tool of oppression.
2. Santosh Hegde Committee 2013: It said six out of the six encounters investigated were “not genuine”, and that “disproportionate force” had been used against persons with “no known criminal antecedents”. AFSPA gave “sweeping powers” to men in uniform without granting citizens protection against its misuse.
3. Immunity to Security Forces: AFSPA has been dubbed a "draconian Act" for the unrestricted authority it grants the military forces and the impunity that security officers have for their acts performed under the law. Under AFSPA, the "armed forces" have the authority to shoot kill, or demolish a structure based solely on suspicion.
4. Human Rights Issue: The AFSPA's activities have been criticized because people have died as a result of them. It's been a contentious issue, with human rights organizations condemning it as too forceful.
5. Prolonged continuation: Despite a nearly 25-year ceasefire accord, the Union Government has been chastised for renewing the "disturbed region" tag on Nagaland yearly to keep the AFSPA alive.
Laws that are being violated by AFPSA:
1. Violative of the Constitution – Article 21, Article 22
2. Violative of International Conventions:
I. Universal Declaration of Human rights (UDHR)
ii. International Covenant on Civil and Political Rights (ICCPR)
iii. Convention against Torture
iv. UN Code of Conduct for Law Enforcement Officials
v. The UN Body of Principles for Protection of All Persons Under Any Form of Detention
vi. The UN Principles on Effective Prevention and Investigation of Extra-Legal, Arbitrary, and Summary Executions. UN & UNHRC have called for its withdrawal.
The other side of the coin:
Counter-insurgency operations are full of uncertainties. Intelligence may be correct or completely false. Sometimes the armed forces walk into a trap. It is not easy for them to differentiate between a friend and a foe. To fire or not fire is always a difficult decision, a split second makes all the difference. In such situations mistakes, and even blunders happen.
Cautions given by the Supreme Court:
A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:
• Definite circumstances: The “power to cause death is relatable to the maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
• Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
• Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
• No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
• Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
• Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
• People friendliness: The court underscored how the Commandments insist that “operations must be peoplefriendly, using minimum force and avoiding collateral damage – restrain must be the key”.
• Good intelligence: It added that “good intelligence is the key to success”.
• Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
• Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”
My opinion:
The status quo of the act is no longer the acceptable solution due to numerous human rights violation incidents that have occurred over the years. 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 favorable action. The army fights high-intensity conflicts hence it is important to garner support from the people of the region to fight terrorism and insurgent activities. AFSPA should be made more comprehensive, with elaborate rules concerning the method of investigations of alleged human rights violations to reduce the possibility of misusing it. 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 and as the basic needs of a conflict-free valley are met, the next requirement is jobs, industry, and trade, If we succeed in doing this it will make the law a positive aspect for the society there.
