ARMED
FORCES SPECIAL POWERS ACT (AFSPA) - POLITY
News:
AFSPA will go once permanent peace returns to Jammu & Kashmir, says Rajnath
Singh
What's in the news?
● Defence
Minister Rajnath Singh said that the Armed Forces Special Powers Act (AFSPA)
will be removed from Jammu and Kashmir when there is permanent peace in the
Union territory.
Key takeaways:
● AFSPA
has been removed from large parts of the northeast as we have successfully
controlled the problem of insurgency in Northeast India.
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
law first came into effect in 1958 to deal with the uprising in the Naga Hills,
followed by the insurgency in Assam.
Powers provided in AFSPA:
● 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.
● It
also gives them powers to arrest individuals without warrants, on the basis of
“reasonable suspicion”, and search
premises without warrants.
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.
States under AFSPA:
● The
Act is effective in the whole/parts of Nagaland,
Assam, Manipur and Arunachal Pradesh.
○ Tripura,
Meghalaya and Mizoram are free from this Act.
● Currently,
the Union Home Ministry issues
periodic "disturbed area" notification to extend the AFSPA only for
Nagaland and Arunachal Pradesh.
● The
notification for Manipur and Assam is issued by the State governments.
● Jammu
and Kashmir has a separate J&K Armed Forces (Special Powers) Act, 1990.
● The
entire Union Territory of Jammu and Kashmir (excluding Ladakh) is a
"disturbed area."
● The
power to notify the "disturbed areas rested with the state government. Now
with UT replacing the state, these powers automatically get transferred to the
Centre".
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 and 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.