Armed Forces Special Powers Act (AFSPA) – Explained, pointwise

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Introduction

Recently, the army operation resulted in the tragic death of 14 civilians in Nagaland, due to mistaken identity as insurgents. According to a report from Kohima, the government agreed to compensate the victims, but the incident led to the protest against the Armed Forces Special Powers Act (AFSPA) once again in the region.

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Read more: Nagaland killings should prompt a broad rethink

Nagaland Chief Minister also criticised the Union Government for extending the “disturbed area” tag for Nagaland every year.

Note: In June 2021, the Ministry of Home Affairs had declared the entire State of Nagaland as a “disturbed area” for six more months under the AFSPA.
About the AFSPA

AFSPA was first promulgated in 1942, by Linlithgow,  in response to the Quit India movement in 1942. Its aim was “to confer special powers upon certain officers of the armed forces.

After Independence, the Act was retained by the ordinance enacted in 1958, to control increasing violence in the North-eastern States, which the State governments found difficult to control. In simple terms, AFSPA gives armed forces the power to maintain public order in “disturbed areas”.

What is a “disturbed area” under AFSPA?

According to Section 3 of the AFSPA, an area can be declared 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.

Powers given to armed forces under AFSPA

The armed forces have the following powers in the disturbed area,

-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 armed forces feel a person is in contravention of the law.

-Can arrest a person without a warrant, enter or search premises without a warrant, and ban the possession of firearms.

Read more: All about AFSPA
What is the need for AFSPA?

Provide legal powers to Army: The Armed forces have no constitutional authority or legal powers to use force or firearms against anyone except in 1. War, 2. When guarding the international border, 3. They were in “aid to civil authority”, But a magistrate must be present at each spot to authorise the use of force in writing on a particular form.

A magistrate’s presence cannot be ensured with the current modus operandi of terrorists, insurgents and militants. So, separate legislation is necessary.

Better counterinsurgency in border areas: Northeast India is an area of immense geostrategic importance, which shares boundaries with five countries, including Myanmar and China. It is important that the insurgency situation is brought under control. So, the Act gives security forces sweeping powers of arrest and to continue counterinsurgency operations without getting any hesitation.

Further, Security forces are not charged for their actions because to protect the morale and integrity of the army.

So, the Army is of the opinion that the Act helps to control insurgency operations and protect the borders.

Reduce the cost of court hearings for Armed forces: The only legal right a soldier has, apart from AFSPA, is the right of “private defence” (of life or property), which must be proved post-facto in a court of law, and this takes many years of court hearings.

Defending such cases, in courts, would, obviously, leave no time or resources for any other military responsibilities, for years. Under AFSPA, only the person given the order to fire is responsible.

What are the criticisms against AFSPA?

India is the only country in the world where there is no war, and yet an emergency martial law was in force. The Act provides the security personnel with absolute powers without accountability. This leads to various issues.

In 2013, the Supreme Court appointed Hegde Commission. The commission found that all seven deaths in the six cases it investigated were extrajudicial executions. The commission also said that the AFSPA was widely abused by security forces in Manipur. This commission report applies to other areas where the AFSPA is in force.

Human rights violations: In over 20 years, the Centre has denied prosecution sanctions under AFSPA in all cases recommended by the J&K government against army men.

Till today, no security personnel involved in serious criminal offences in the Northeast has been charged or put behind bars. This is a violation of Human Rights under the Universal Declaration of Human Rights and the UN Declaration on the Rights of Indigenous Peoples.

Note: United Nations Declaration on the Rights of Indigenous Peoples provides a universal framework of minimum standards for the survival, dignity, and well-being of indigenous people.
What should be done?
Respect the recommendation of various committees

Justice BP Jeevan Reddy committee: In 2004, the Central government appointed a five-member committee headed by Justice BP Jeevan Reddy to review the provisions of the AFSPA in the northeastern states.

The committee recommended a). Repeal of AFSPA and inserting the appropriate provisions in the Unlawful Activities (Prevention) Act (UAPA), 1967. b). UAPA should clearly specify the powers of the armed forces and paramilitary forces, c). Grievance cells should be set up in each district where the armed forces are deployed.

The 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA.

The reports of the Justice Verma Committee (2013) and the Justice Hegde Commission (2013) supported the need to address the abuses committed under the AFSPA and end the effective impunity enjoyed by security forces.

So, the government should either repeal the Act or ensure accountability of the Armed forces.

Other necessary reforms

Human Rights violations of the Army are the biggest threat to its credibility. So, the Army should put details of all court-martials held with respect to human rights violations under AFSPA in the public domain.

Further, the Government should try to resolve the long-running insurgency in North-Eastern states through dialogue with insurgent groups. Further, the state should focus on socio-political or governance-related issues that compelled the centre to impose AFSPA in the first place.

In conclusion, the task of the armed forces is to protect the boundaries of a nation from external aggression, and not to kill unarmed citizens nor operate in civilian areas. So, the removal of the Act will demonstrate we are equal citizens of an equal country, hence the government should think of repealing the AFSPA.

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