AFSPA- Armed Forces Special Powers Act

Context:

The Konyak Civil Society Organizations, the guardian umbrella of organizations of the Konyaks, has slammed the extension of the Armed Forces Special Powers Act of 1958 (AFSPA).

• The Armed Forces (Special Powers) Act of 1958 has been extended in Nagaland for six months from 30^th December 2021.

The Armed Forces Special Powers Act:

• Armed Forces Special Powers Act (AFSPA), 1958 is an act of the Parliament of India that grants special powers to the Indian Armed Forces to maintain public order in “disturbed areas”.
• According to the Disturbed Areas (Special Courts) Act, 1976 once declared ‘disturbed’, the area has to maintain status quo for a minimum of 6 months.
• One such act passed on 11 September 1958 was applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one, to the other Seven Sister States in India’s northeast (at present, it is in force in the States of Assam, Nagaland, Manipur {excluding Imphal Municipal Council Area}, Changlang, Longding and Tirap districts of Arunachal Pradesh, and areas falling within the jurisdiction of the eight police stations of districts in Arunachal Pradesh bordering the State of Assam^[2]).
• Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force.
• An act passed in 1990 was applied to Jammu and Kashmir and has been in force since.
• The acts have received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened.

History of AFSPA

• The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British colonial government on 15 August 1942 to suppress the Quit India Movement.Modeled on these lines, four ordinances—
  • the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance;
  • the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance;
  • the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance;
  • the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance
• These ordinances were invoked by the Indian government to deal with the internal security situation in the country in 1947 which emerged due to the Partition of India.
• Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance.

Declaring AFSPA Act

The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:

• Failure of the administration and the local police to tackle local issues
• Return of (central) security forces leads to return of miscreants/erosion of the “peace dividend”
• The scale of unrest or instability in the state is too large for local forces to handle

In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a ‘disturbed area’. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.

By Act 7 of 1972, the power to declare areas as being disturbed was extended to the central government.

In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear – to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like.

What is disturbed area?

According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as “disturbed”, an officer of the armed forces has powers to

• After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order,
• Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.
• To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.
• To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.
• Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.
• Any person arrested and taken into custody under this act shall be made present over to the officer in charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.
• Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government’s judgment on why an area is found to be disturbed subject to judicial review.
• Protection of persons acting in good faith under this act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this act.

Key Provisions of the AFSPA Act

The salient features of the AFSPA act are:

• 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 AFSPA gives special powers to army officers in disturbed areas to shoot (even if it kills) any individual who violates law / or is suspected to violate law (this includes assembly of five or more people, carrying of weapons) etc. The only condition is that the officer has to give a warning before opening fire.
• Security forces can arrest anybody even without a warrant, and carry out searches without consent.
• Once a person is taken into custody, he/she has to be handed over to the nearest police station as soon as possible.
• Prosecution of the officer on duty for alleged violation of human rights requires the prior permission of the Central Government.

CRITICISM of AFSPA

• The act fails to protect and uphold human rights; this can be witnessed in the case of alleged custodial rape and killings of the Thangjam Manorama by the Assam rifles in 2004. The act reinforces a militarized approach to security which has proved to be not only inefficient but, also counterproductive in tackling security challenges.
• The absolute authority vested in the armed forces to shoot on sight based on mere suspicion and for an offence as basic as violating an order. The power to shoot on sight violates the fundamental right to life, making the soldier on the ground the judge of the value of different lives and people the mere subjects of an officer’s discretion.
• The power of arbitrary arrest and detention given to the armed forces goes against the fundamental right vested in Article 22, which provides safeguards on the preventive and punitive detentions. The Supreme Court has clearly stated that the person arrested has to be submitted to the court within 24hrs of the FIR. But, these conditions have clearly been ignored.
• The greatest outrage against AFSPA is due to the immunity given to the armed forces. No prosecution, suit or another legal proceeding shall be instituted except with the previous sanction of the central government. This immunity which protects guards and also facilitates the armed forces to take unwarranted decisions at times is clearly questionable.
• Even during the state of emergency the right to life and liberty- Article 21 and certain rights under article 20 cannot be suspended. But the absolute power given to armed forces dissolves the inherent rights given under the fundamental rights and all the powers are vested in the officers.
• The CBI’s past interventions in encounter killings have led nowhere. Take the Pathribal killings for example. Five days later, soldiers of the Indian Army claimed they had neutralised five “foreign militants” who were responsible for the massacre in Pathribal. After investigation, those killed turned out to be local men who had no role in the Pathribal killings. The ensuing case wound through courts and the CBI. The CBI’s charge sheet provided evidence that five soldiers were guilty of “cold-blooded murder”. But then the SC in its 2012 judgement said that the Army could choose whether these men were to be prosecuted in a civilian court or in a military tribunal. The Army opted for the latter and closed the case in 2014 citing lack of evidence.

SUPREME COURT GUIDELINES 1998

In the case of Naga People’s Movement of Human Rights vs. Union of India, the validity of AFSPA was challenged before the Supreme Court and the five-judge bench concluded that the act cannot be considered as violative of the Constitution and the powers conferred under the section 4 and 5 of the Act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.

Further, the guidelines stated that

• The army personnel are required to strictly follow minimum force under Section 4 against suspected of violating prohibitive orders.
• A person arrested and taken to custody under section 4 has to be handed over to the nearest police station within 24hours of such arrest.
• The act has to be reviewed every six months by the state.

B P JEEVAN REDDY COMMITTEE

• In 2005 the killing of Thangjam Manorama by the Assam Rifles in Manipur triggered widespread protests and outrage against the enforcement of AFSPA and as a follow up the government set up the Jeevan Reddy Commission to review AFSPA.
• After a thorough research and various visits and hearings held within and outside the North-Eastern States, the committee was firm that the Armed Forces (Special Powers) Act, 1958, should be repealed.
• The committee was also of the view that the act is too sketchy and inadequate in several particulars. The committee also said that “Due to the number of reports of sexual offences committed by the armed forces in India’s conflict areas such as Kashmir and the North East, the Armed Forces Special Powers Act (AFSPA) – a controversial law that gives sweeping powers to and often confers immunity on security forces – must be reviewed. Security forces must be brought under the purview of ordinary criminal law rather than under army law.”
• It also noted that AFSPA had become “an object of hate and an instrument of discrimination and highhandedness’’.

SANTOSH HEGDE COMMIITTEE

• In 2013, a committee headed by Supreme Court Judge Santosh Hegde was appointed to review the encounter killing of 1528 people in Manipur since 1979.
• The Supreme Court was prompted to set up the Santosh Hegde committee following the petition filed by the Extra Judicial Execution Victim Families Association of Manipur asking it to look into six charges of unlawful encounter killings in Manipur.
• The Santosh Hegde committee submitted its report in 2013, saying five of the six encounters were “not genuine”, that “disproportionate force” had been used against persons with “no known criminal antecedents”, and that AFSPA gave “sweeping powers” to men in uniform without granting citizens protection against its misuse.
• Further, the committee was of the view that if greater power was given then greater would be the restraint and stricter would be the mechanism to prevent its misuse or abuse, but this possibility was absent in the case of Manipur.

SUPREME COURT ORDERS – 2016 to 2017

The 2016 judgement: Supreme Court’s ruling against the alleged encounter killings carried out under AFSPA came due to the plea submitted by the victim’s family of 1528 encounter killings carried out since 1979 in Manipur. The bench 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… This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties”.

The Supreme Court judgement said:

• Every death in the ‘disturbed areas’, be it of a common person or insurgent, should be thoroughly enquired by the CID at the instance of the NHRC.
• Not every armed person violating the prohibitory order in a disturbed area is an enemy. Even though he is considered as an enemy a thorough investigation has to be conducted, since every citizen of India is entitled to all the fundamental rights including Article 21 of the constitution.
• Even if the enquiry finds the victim to be an enemy, a probe should look into whether excessive or retaliatory force was used.
• There is no concept of absolute immunity for army personnel who commit a crime.

The July 2017 judgement:

 Supreme Court’s recent judgement on alleged unlawful encounter killings in Manipur has marked an important institutional step –

• It recognises the presence of state violence in conflict-ridden areas. It also notes that the victims of such violence have no access to justice, which is a basic human right recognised under the Constitution of India.
• The Supreme Court has overruled the objections of the Centre and the Army and ordered the Central Bureau of Investigation to set up a special investigation team to probe encounter deaths. The case has gone a long way in piercing the institutional blindness to violence by members of the security forces in conflict zones.
• Both the National Human Rights Commission and the Supreme Court in 2014 have laid down the guidelines to be followed by the state in case of encounter deaths. It states that first an FIR should be filed, investigation should be conducted by an independent agency and not by officers of the same police station and a magisterial enquiry needs to be held.
• These rules, however, have remained on paper in most states. In Manipur, the Supreme Court observed that not a single FIR was filed against any uniformed personnel or members of the state police forces. Instead, charges have been filed against the victims for alleged violations of law and order in a disturbed area.

Points of Discussion

Even though there is a high dose of criticism, there are certain genuine arguments which validate the retention of AFSPA. They are:

• The AFSPA is applied to an area only when the ordinary laws of the land are found to be inadequate to deal with the extraordinary situation perpetrated by insurgents spreading terror. It is applied when, in the terror-stricken area, the police force is found wanting and incapable of dealing with the terrorists and, thus, the induction of the army becomes imperative to battle the terrorists and maintain the territorial integrity of the country.
• Insurgent movements in India have more or less been proxy-wars being waged against India by external actors and this necessitates the deployment of armed forces in a counter-insurgency role with enhanced legal protection.
• The army has, repeatedly, made it clear that it cannot operate without the AFSPA. It needs special powers to tackle homegrown and as well as foreign terrorists. The arguments enumerated above, and many more, have frequently been put forward by the army to retain the AFSPA in the areas it operates in. The underlying point is that the army cannot operate in militancy-hit areas without the AFSPA and if AFSPA is repealed, as is being demanded, the army would have to be withdrawn from that state or area. That will create a huge gap in the security grid and will give terrorists, be it in Kashmir and Manipur, the upper hand.

RECOMMENDATIONS FOR THE BETTERMENT OF THE ACT

• There is a clear and present danger of AFSPA becoming a symbol of oppression and hostage to previous human rights violations if the demands of the regions affected by terrorism and insurgency are not heard and their grievances redressed. Therefore, the status quo is no longer an acceptable solution.
• A message must be sent out to the people of disturbed stated like the Manipur, J&K that the government is willing to address their injustice, by making necessary changes to the existing law.
• The army fights high-intensity conflicts and people are the centre of the gravity. Therefore there must be support from the people of the region to the armed forces to fight terrorism and insurgent activities. The armed forces must build the necessary trust factor amongst the local populace to ensure their support in countering insurgency.
• The existence of AFSPA in J&K is mainly to fight the proxy war being waged by external agencies and therefore such tough stringent laws are required to be given to the armed forces to act at when the need arises. But, there have to be enough measures to be taken to repeal some of the powers when the situation simmers down.
• Involvement of the state bureaucracy, army and the grass-root civil society organisation in the developmental activities of the state. This will make the army ‘pro-development than a mere ‘law and order’ agency.
• The security forces and the government should fast track existing cases and ensure speedy justice to victims by prosecuting the guilty. They should adopt a transparent process in place of the current opaqueness to deal with allegations of human right violations by the forces.
• The government should consider the imposition and lifting of AFSPA on a case by case basis and limit its application only to few disturbed districts instead of applying it for the whole state.
• The government and the security forces have to abide by the guidelines set out by – The Supreme Court, Jeevan Reddy Commission, Santosh Hegde Committee and the NHRC.

Conclusion

As the CBI now investigates the Manipur encounter killings, the Supreme Court must ensure that the probe reaches its logical conclusion and it should be insulated from political pressures. The judicial intervention has done a lot to push for accountability in conflict areas, to turn the conversation back to basic democratic and human rights. But progressive rulings by the judiciary can only go so far when they are constantly buffeted against attitudes in the government and the Army, which would preserve the status quo.

It is high time that sincere and concerted efforts are made continuously by the four stakeholders — civil society, the Armed Forces, the States 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. The recent SC verdict is likely to have far-reaching consequences in places where security forces have been insulated by AFSPA to carry out counter-insurgency operations.

Source: The Hindu

You can find many articles on SECURITY  (part of GS III) in our website. Go through these articles share with your friends and post your views in comment section.