Armed Forces Special Power Act (afspa)
Introduction
Armed forces are given the authority to uphold public order in "disturbed areas" under the Armed Forces (Special Powers) Act (AFSPA) of 1958, a parliamentary statute. Currently, AFSPA is only in force in 12 districts across four Northeastern states, including as Jammu & Kashmir, Nagaland, Assam, Arunachal Pradesh, and Manipur, and in 31 districts across four Northeastern states. Additionally, without a warrant, the army has the authority to make an arrest, search a person's residence, and ban the possession of firearms if there is reasonable suspicion.
The Armed Forces Special Powers Act Of 1958:
• The Act gives the army, state, and police forces the right to kill while shooting, search residences, and destroy any property that is "likely" to be used by insurgents in areas that the home ministry has identified as "disturbed."
• The AFSPA is triggered if there is a threat to India's territorial integrity due to militancy or insurgency.
• Security personnel have the right to "arrest a person without warrant" if they have committed or are going to commit a "cognizable offence," even if there is "reasonable suspicion."
• Additionally, it offers security forces legal defense for actions committed in tense locations.
• While the military and administration argue that the act is necessary to quell militancy and insurgency, some have highlighted instances where it may have resulted in abuses of human rights.
• Normally, the Ministry of Home Affairs would put this Act into effect if necessary, but there have been cases where the Centre chose to cede control and let the state governments make the decision.
Disturbed Area
• A disturbed area is one that has been declared by notification in accordance with Section 3 of the AFSPA.
• Disputes or disagreements between members of different religious, ethnic, linguistic, or regional groups, castes, or communities can cause havoc in an area.
• The Central Government, the Governor of the State, or the Administrator of the Union Territory may proclaim the whole State or Union Territory to be a disturbed region.
Provisions Of The Armed Forces Special Powers Act (AFSPA)
• Any section of a state, or the entire state, may be declared disturbed by the governor of that state and the federal government.
• The Central Government, the Union Territory Administrator, or the Governor of the State may declare a territory to be a "disturbed area."
• The entire land or a specific area of it can be considered disturbed by filing a notice in the official gazette.
• The Act's enforcement might be supported or opposed by state governments. Under Section 3 of the law, the governor or the Centre may, however, override their choice.
• If they think it's important to stop terrorist activities or any other conduct that would endanger India's sovereignty or belittle the national flag, anthem, or Constitution.
• In accordance with Section 3 of the AFSPA, the Central government may send military personnel to assist civilian authorities if the governor of a state makes a formal notification in the Indian Gazette.
• The Disturbed Areas Act of 1976 mandates that after an area is designated as "disturbed," it must preserve the status quo for at least three months.
• According to Section (4) of the AFSPA, army personnel in unrest zones have the extraordinary right to shoot anyone who violates the law or is accused of doing so (this includes gatherings of five people or more, carrying weapons, and other similar offences). The cop only needs to warn someone before shooting.
• Anyone can be detained without a warrant, and security forces are allowed to search without authorization.
• When someone is apprehended, they need to be taken as soon as possible to the closest police station.
• The Central Government must first approve any prosecution of the on-duty official for alleged human rights abuses.
States Under AFSPA Act
States |
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Description |
Assam |
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Jammu & kashmir |
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Tripura |
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Manipur |
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Arunachal Pradesh |
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Meghalaya |
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Mizoram |
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Nagaland |
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Need For AFSPA Act
• The AFSPA, in the Army's opinion, is absolutely required to quell insurgency and protect the nation's borders.
• Without the AFSPA's protection, security forces cannot function in the face of a deadly insurgency. Without it, people would be worried, and the militants would gain.
• Army authorities also cite the necessity to protect the army's morale and integrity as a justification for not looking into claims involving army troops.
• Criticism
• Absolute power: Without making them answer for anything, the act provides security personnel total authority. As a result, security agencies engage in a variety of criminal activity and human rights violations.
• Human rights abuses: The AFSPA (of which India is a signatory but has not ratified) violates the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture.
• Violations of fundamental rights include: Article 22 of the Constitution, which protects preventive and punitive detentions, is violated by the military forces' right to arbitrarily arrest and imprison anyone.
• Unambiguously, the seized person must be produced before the court within 24 hours of the FIR being lodged, according to the Supreme Court.
• The rights to life and liberty (Article 21) and a few other rights (Article 20) cannot be suspended, not even in an emergency.
• However, the inherent rights guaranteed under the basic rights are nullified by the ultimate authority conferred to the armed forces, and all authority is placed in the commanders.
• Protection from Punishment: The armed forces' immunity is the biggest violation of the AFSPA. No criminal investigation, civil lawsuit, or other legal action may be initiated without the central government's prior consent. This protection, which safeguards security personnel while occasionally enabling the armed forces to act rashly, is doubtful.
Way Forward
• The AFSPA should be modified to be more thorough, with specific rules guiding how alleged human rights abuses are examined, to reduce the risk of abuse.
• The biggest threat to the Army's credibility and 62-year track record of fighting insurgencies should be considered human rights violations. It must reestablish the integrity of its judicial system in order to handle the crisis.
• The Army should make all court-martials related to violations of human rights public. It must thoroughly investigate all alleged violations of human rights, both domestically and internationally.
• The administration should make an effort to put an end to the protracted insurgency in the North-eastern states through negotiations with rebel groups.
• The North-east region, which is considered to be a major contributor to insurgency, requires quick industrialization and infrastructure development if the government is to open up new growth opportunities.
Governmental Initiative
Jeevan Reddy Committee
• In order to evaluate the application of the act's provisions in the northeastern states, the Central Government established a five-person committee in November 2004 under the direction of Justice B P Jeevan Reddy.
• The committee recommended that the AFSPA be repealed and that the Unlawful Activities (Prevention) Act of 1967 be amended to include the necessary provisions.
• The powers of the armed forces and paramilitary forces should be expressly defined in the Unlawful Activities Act, and grievance cells should be set up in every location where the armed forces are stationed.
Santhosh Hegde Committee
• In 2013 a commission headed by Supreme Court Judge Santosh Hegde was established to look into the 1528 encounter deaths that had occurred in Manipur since 1979.
• The Santosh Hegde committee found that "disproportionate force" was used against people who had "no known criminal history," five of the six encounters were "not real," and the AFSPA gave men in uniform "sweeping powers" without protecting people from being exploited.
• Furthermore, the committee thought that giving more authority would lead to stronger control and a better structure to prevent exploitation or abuse, but in the instance of Manipur, this alternative was not available.
ARC's second report
• The Fifth Report of the Second Administrative Reforms Commission (ARC) on Public Order likewise advocated for the abolition of the AFSPA.
• But none of these ideas have been implemented.
Conclusion
It is past time for the four parties’ civil society, the armed forces, the states, and the government of India to make continuous and focused efforts to find a lasting and peaceful solution to the gnawing issue. It is never too late to restore harmony and peace to society. The recent Supreme Court ruling is anticipated to have broad repercussions in areas where security forces have enjoyed immunity from prosecution under the AFSPA while carrying out counter-insurgency operations.