AFSPA's influence increased in Northeast

AFSPA's influence increased in Northeast

GS-3: Internal Security

(IAS/UPPCS)

Relevant for Prelims:

Armed Forces (Special Powers) Act, 1958 (AFSPA), Union Ministry of Home Affairs (MHA).

Relevant for Mains:

About AFSPA-key provisions, arguments for and against AFSPA, Supreme Court guidelines related to AFSPA, Way forward.

08/04/2024

Source: The Hindu

Why in news:

Recently, the Union Ministry of Home Affairs (MHA) has extended the effect of the Armed Forces (Special Powers) Act, 1958 (AFSPA) for another six months in parts of Nagaland and Arunachal Pradesh.

About AFSPA:

  • AFSPA is a law which is implemented in 'disturbed areas'. This Act, approved by the President on September 11, 1958, is known as the Armed Forces Special Powers Act (AFSPA), 1958. It was first implemented in the North-Eastern states.

Provision:

  • AFSPA provides uncontrolled powers to the armed forces and the Central Armed Police Forces deployed in “disturbed areas” to kill, arrest and search any premises without warrant for any person violating the law.
  • It ensures protection from prosecution and legal suits without the approval of the Central Government.
  • State and central governments can issue notifications regarding AFSPA. "Disturbed Area" notifications are issued from time to time by the Ministry of Home Affairs for the states of Arunachal Pradesh and Nagaland.

What is disturbed area:

  • Under Section 3 of AFSPA, an area where the use of armed forces is necessary to assist civil power is declared a disturbed area.
  • The Act was amended in 1972 and powers to declare an area as “disturbed” have been conferred on the States as well as the Central Government.
  • An area may become disturbed due to differences or disputes between members of different religious, racial, linguistic or regional groups or castes or communities.
  • The Central Government, or the Governor of a State or the Administrator of a Union Territory can declare the entire State or Union Territory as a disturbed area.
  • According to the Disturbed Areas (Special Courts) Act, 1976, once declared 'disturbed', the area is maintained as disturbed for a continuous period of three months. The state government can suggest whether this Act is needed in the state or not.
  • Currently the Union Home Ministry issues "Disturbed Area" notifications from time to time to extend AFSPA only to Nagaland and Arunachal Pradesh.

Historic Background:

  • The Armed Forces Special Powers Ordinance was first promulgated by the British Government on August 15, 1942 to control the Quit India Movement.
  • This Ordinance was promulgated in the year 1947 in “Assam Disturbed Areas” to deal with Partition-induced internal security challenges.
  • After wide application this ordinance was replaced by AFSPA in the year 1958. This Act was enacted in the year 1990 to quell terrorist activities in Jammu and Kashmir.

Arguments for and against AFSPA:

Arguments in favor:

Addressing Security Challenges:

  • AFSPA is considered necessary to deal with persistent security threats in the areas where it is enforced.
  • The presence of armed groups and insurgent activities remains a persistent threat to public security and stability.
  • Without the legal framework provided by AFSPA, it may be difficult for security forces to effectively counter these threats.

Empowering security forces:

  • AFSPA provides necessary legal powers to the security forces to effectively deal with extremism and terrorism.
  • It provides them with the necessary powers to conduct operations in disturbed areas, make arrests and maintain public order.
  • This empowerment is important to enable the security forces to efficiently deal with complex security challenges.

Legal protection for workers:

  • AFSPA provides legal protection to security personnel working in disturbed areas.
  • These protections protect them from legal liability when they perform their duties in challenging and often dangerous circumstances.
  • Such legal safeguards are necessary to ensure that security personnel can perform their functions without fear of undue legal consequences.

Boosting morale:

  • The legal protection provided by AFSPA helps in boosting the morale of the armed forces personnel.
  • Knowing that they are legally protected when carrying out their responsibilities can increase their confidence and motivation to perform effectively in challenging environments.
  • Boosting morale is important to maintain the effectiveness and efficiency of security operations in disturbed areas.

Arguments against:

Violation of State Autonomy:

  • Section 3 of AFSPA empowers the Central Government to designate any area as a disturbed area without the consent of the state concerned.
  • This weakens the autonomy of the states and may lead to misuse of power by the central government.

Excessive use of force:

  • Section 4 of the AFSPA provides specific powers to authorized officers, including the use of firearms against persons potentially resulting in death.
  • This provision raises concerns about excessive and disproportionate use of force by security forces.

Violation of civil liberties:

  • Section 4 also empowers officers to arrest without warrant and to seize and search premises without any warrant.
  • It may violate individuals' civil liberties, as it bypasses standard legal procedures and safeguards against arbitrary detention and search.

Lack of Accountability:

  • Under Section 7 of the AFSPA, prior executive approval from the central or state authorities is required to prosecute a member of the security forces.
  • This provision creates a lack of accountability and transparency in cases of alleged human rights violations by security forces, as it allows them to act with impunity.

Evidence of Abuse:

  • The Hegde Commission appointed by the Supreme Court in 2013 found that all seven deaths in the six cases it investigated were extrajudicial executions.
  • Additionally, it exposed the widespread misuse of AFSPA by security forces in Manipur.

Supreme Court guidelines related to AFSPA:

  • The Supreme Court had confirmed the constitutionality of AFSPA in its judgment in the year 1998 in the case Naga People's Movement of Human Rights vs Union of India.
  • In this landmark judgment, the Supreme Court has given the following guidelines:
  • The Central Government has the right to make suo-motto declaration, yet it is better for the Central Government to consult the State Government before issuing such a declaration.
  • AFSPA does not give unrestricted right to designate any area as 'disturbed area'.
  • The announcement should have a definite time limit and its status should be regularly assessed. The declaration is required to be reviewed after six months have passed.
  • “While implementing the powers conferred by AFSPA, the authorized officer should use minimum force necessary for successful operation, and also strictly follow the guidelines mentioned in the Army “Dos and Don'ts”.
  • The Supreme Court determined that the Act did not violate the Constitution, and that the powers granted under Sections 4 and 5 were neither arbitrary nor unreasonable.

Way forward:

  • The recommendations of the Justice B P Jeevan Reddy Committee constituted in November 2004 to review the provisions of AFSPA in the North-Eastern States should be implemented.
  • This committee had recommended that AFSPA should be repealed and appropriate provisions should be included in the Unlawful Activities (Prevention) Act, 1967.
  • The Unlawful Activities Act should be amended to clearly specify the powers of the armed forces and paramilitary forces and also establish complaint cells in each district where the armed forces are deployed.
  • The recommendation of repeal of AFSPA in the 5th Report of the Second Administrative Reforms Commission (ARC) on Public Order should be implemented.
  • AFSPA should be reviewed every six months with the aim of making the security forces more accountable. As recommended by the Santosh Hegde Commission.
  • This Commission suggested that instead of relying only on AFSPA, appropriate amendments could be made in the Unlawful Activities (Prevention) Act to deal with terrorism.
  • It also recommended that the armed forces should not be exempted from scrutiny on the basis of excesses committed in the discharge of their duties even in "disturbed areas".

------------------------------------------------

Mains Question:

Discuss the arguments for and against the continuation of AFSPA in the context of its impact on human rights and governance.