AFSPA
- DEFENCE & SECURITY
News: Centre extends AFSPA in parts of
Nagaland, Arunachal Pradesh for another six months
What's
in the news?
●
The Ministry of Home Affairs (MHA)
extended the Armed Forces (Special Powers) Act (AFSPA) in parts of Nagaland and
Arunachal Pradesh for another six months, beginning October 1.
Key
takeaways:
●
The Act gives unbridled power to the armed
forces and the Central Armed Police Forces deployed in “disturbed areas” to
kill anyone acting in contravention of law, arrest and search any premises
without a warrant and protection from prosecution and legal suits without the
Central government’s sanction.
What
is AFSPA?
●
A colonial
era legislation that was enacted to quell the protests during the Quit
India movement, the AFSPA was issued by way of four ordinances in 1947.
●
The ordinances were replaced by an Act in
1948 and the present law effective in the Northeast was introduced in
Parliament in 1958.
●
The AFSPA gives unfettered powers to the
armed forces and the Central armed police forces deployed in “disturbed areas”
●
It allows them to open fire, even causing
death, against any person in contravention to the law or carrying arms and
ammunition.
●
Also, it gives them powers to arrest
individuals without warrants, on the basis of “reasonable suspicion”, and search premises without warrants.
●
The law first came into effect in 1958 to
deal with the uprising in the Naga Hills, followed by the insurgency in Assam.
Disturbed
Areas:
●
The Act was amended in 1972 and the powers
to declare an area as “disturbed” were conferred concurrently upon the Central
government along with the States.
Controversy
around the Act:
1.
Human Rights Violations:
●
The exercise of these extraordinary powers
has often led to fake encounters and other human rights violations by security
forces.
●
Example: Custodial rape and killing of the
Thangjam Manorama by the Assam rifles in 2004.
2.
Misuse of Absolute Power:
●
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.
3.
Violates Fundamental Rights:
●
The power of arbitrary arrest and detention
given to the armed forces goes against the fundamental right vested in Article
22.
4.
Immunity against any Punitive Action:
●
The act provides immunity to the armed
forces against prosecution, suit or another legal proceeding, which shall be
instituted only with the previous sanction of the central government.
5.
Supreme Court Views on the Act:
●
The Supreme Court has upheld the
constitutionality of AFSPA in a 1998 judgment (Naga People’s Movement of Human
Rights v. Union of India).
Supreme
Court Orders - 2016:
●
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
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.
Recommendations
of Jeevan Reddy Committee:
●
In November 2004, the Central government
appointed a five-member committee headed by Justice B P Jeevan Reddy to review
the provisions of the act in the northeastern states.
●
The committee recommended that:
a.
AFSPA should be repealed and appropriate
provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967.
b.
The Unlawful Activities Act should be
modified to clearly specify the powers of the armed forces and paramilitary
forces, Grievance cells should be set up in each district where the armed
forces are deployed.
Current
Status: There is gradual reduction in areas under the Act.
Reasons:
●
Improvement in the security situation.
●
An increase in development activity in the
region.
●
On the political side much headway has
been made in moving towards a political solution like peace accords, ceasefire
and creation of sub-regional administrative arrangements.
WAY
FORWARD:
●
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 favourable action.
●
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.