Armed Forces (Special Powers) Act (AFSPA)

Armed Forces (Special Powers) Act (AFSPA) 

Background:

At least 13 civilians including a soldier lost their lives during open firing by security troops between Oting and Tiru villages in Nagaland's Mon district on December 4, 2021.

The Special Forces in that area were reportedly tipped off by the intelligence agencies about the movement of some terrorists of the NSCN (KY) and ULFA.

 

History of Nagaland Insurgency:

The British annexed Assam in 1826, and in 1881, the Naga Hills too became part of British India.

In 1946 Naga National Council (NNC) was formed under the leadership of Angami Zapu Phizo. It declared Nagaland “an independent state” on August 14, 1947.

On March 22, 1952, Phizo formed the underground Naga Federal Government (NFG) and the Naga Federal Army (NFA).

The Government of India sent in the Army to deal with insurgency and, in 1958, Armed Forces (Special Powers) Act was enacted.

The Naga Hills, a district of Assam, was upgraded to a Nagaland state in 1963.

On November 11, 1975, the government got a section of NNC leaders to sign the Shillong Accord, under which this section of NNC agreed to give up arms.

A group of about 140 members led by Thuingaleng Muivah, who was at that time in China, refused to accept the Shillong Accord and formed the National Socialist Council of Nagaland (NSCN) in 1980.

In 1988, the NSCN split into NSCN (IM) and NSCN (K) after a violent crash. While the NNC began to fade away, the NSCN (IM) came to be seen as the “mother of all insurgencies” in the region.

NSCN (IM) seeks a “Greater Nagalim” comprising “all contiguous Naga-inhabited areas”, along with Nagaland. That included several districts of Assam, Arunachal and Manipur, as also a large tract of Myanmar.

 

What does the AFSPA mean?

AFSPA gives armed forces the power to maintain public order in “disturbed areas”. They have the 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 they feel a person is in contravention of the law. 

If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.

Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

 

What is a “disturbed area” and who has the power to declare it?

A disturbed area is one which is declared by notification under Section 3 of the AFSPA. An area can be 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. 

A suitable notification would have to be made in the Official Gazette. As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”. 

The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments.

 

What’s the origin of AFSPA?

The Act came into force in the context of increasing violence in the Northeastern States decades ago, which the State governments found difficult to control. 

The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958.

 

Which States are, or had come under this Act?

It is effective in the whole of Jammu & Kashmir, Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh. 

The Centre revoked it in Meghalaya on April 1, 2018. Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border.

 In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations and in Tirap, Longding and Changlang districts bordering Assam.

Tripura withdrew from the AFSPA in 2015. 

 

Should AFSPA be repealed?

Why AFSPA shouldn’t repealed?

In the event of insurgencies and an increase in secessionist activities of militants, it becomes difficult for state governments to maintain the law and order of these ‘disturbed’ areas.

In such a situation, the daily routine of ordinary civilians is disrupted. 

The main purpose of this act is for the armed forces to assist state governments in maintaining the law and order and ensure that civilian life goes on without interruptions.

The overwhelming presence of insurgents causes grave insecurity to the common people. It creates a situation where people have to live under constant fear and anxiety. 

Frequent declaration of curfews, extortion and violent crimes by militants compromise the safety of the civilians. 

The presence of armed forces in areas where these types of offences are recurrent ensures timely and consistent protection of the population.

The law dissuades the advancement of terrorist activities in these areas. AFSPA is needed to curb the growth of terrorism. 

The battle against terrorism cannot be equated with normal law and order problem. 

Militants in the area pose a great threat to security especially because they often tend to incite violence and attempt to recruit civilians into militancy.

Santosh Hegde committee, 2013 reported that AFSPA is mandatory to achieve peace in disturbed areas, but the act should be reviewed fro every 6 months to check whether the Act is still necessary.

Without AFSPA, local police may not be able to handle the overwhelming presence of insurgents in the areas, where AFSPA is in force currently.

Separatists & violent groups will be at the benefit as the state will be in the hands of local police only.

Neighbouring countries may take advantage of the situation if there is no AFSPA.

Tripura was successful in dealing with the insurgent problem with an honest & transparent Government, even though it is covered by our neighbouring country, Bangladesh on 3 sides. The remaining states, which are under AFSPA can follow Tripura’s strategy.

 

Why AFSPA should be repealed?

The Act leaves the whole process of determining if the area qualifies as ‘disturbed’ to the state’s Governor, Administrator or the Central Government without laying down any particular criteria for such a declaration. Such a declaration is not even subject to judicial review.

This leaves no mechanism for the people to challenge such a declaration, which could be arbitrary or for political gains.

The AFSPA violates the fundamental constitutional rights of civilians like the right to life, liberty, equality, freedom of speech and expression, peaceful assembly, moving freely, the practice of any profession, protection against arbitrary arrest and freedom of religion.

There have been numerous reports of human rights violations as a result of the misuse of the AFSPA. Army personnel have been accused of ‘fake’ encounters, rape and torture of ordinary citizens. 

Many cases of civilians ‘disappearing’ have led to people feeling terrorized by the security forces that have been stationed there to guarantee their safety.

United Nations (UN) termed AFSPA as a draconian law that breaches the current international human rights standards and asked India to repeal AFSPA.

Public Interest Litigation (PIL) was filed in the year 2012. It mentioned that 1528 persons were killed with the misuse of AFSPA from 2000 to 2012.

Too much intervention of centre in state affairs violates constitution principle. Central government is renewing the act from time to time, without even consulting the states; Also Central government isn’t withdrawing the Act, even after the situation is under control.

In 2005, Reddy Commission recommended that AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967, also Grievance cells should be set up in each district where the armed forces are deployed.

Second Administrative Commission, 2005 also recommended repealing AFSPA.

 

Views of United Nations on AFSPA:

The UN has also criticised India for continuing with laws including AFSPA which it believes breaches international human rights standards.

The United Nations has asked New Delhi to repeal the AFSPA besides raising the issue of the alleged disappearance of people in Kashmir. 

In 2009, the UN Commissioner for Human Rights Navnetham has stated that India should repeal the outdated and colonial-era laws including. These range from laws that provide the SF with excessive emergency powers, including the AFSPA.

 In 1997, the UN Human Rights Committee stated that by imposing AFSPA, the government is in fact using emergency powers without following the procedures laid down in the International Covenant of Civil and Political Rights.

 Again in 2007, the Committee on the Elimination of Racial Discrimination unequivocally urged the government of India to repeal the Act within one year.

 

Related Questions:

1. In which of the following states or part of states, AFSPA is not applicable?

a. Assam

b. Manipur

c. Arunachal Pradesh

d. Meghalaya

Answer: d)

It is effective in the whole of Jammu & Kashmir, Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh. The Centre revoked it in Meghalaya on April 1, 2018. Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border.

 

2. Who among the following can declare a state, part of state, Union Territory as a disturbed area?

I. Central Government

II. Governor of the state or administrator of the union territory

III. District Magistrate

a. Only I

b. Only III

c. Both I and II

d. Both II and III

Answer: d)

A disturbed area is one which is declared by notification under Section 3 of the AFSPA. An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities. 

 

3. Armed Forces Special Powers Act was introduced in the year:

a. 1956

b. 1950

c. 1958

d. 1948

Answer: c)

The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958.

 

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