AFSPA and North East- UPSC Current Affairs

Why in the News?

Recently, the Ministry of Home Affairs announced the reduction of “disturbed areas” under the Armed Forces (Special Powers) Act in Assam, Manipur, and Nagaland with effect from April 1, 2022.

Probable Question

Examine the impact of the Armed Forces (Special Powers) Act in maintaining peace and tranquillity in North-Eastern India.

Key Points

Origin of AFSPA

• The Act in its original form was promulgated by the British in response to the Quit India movement in 1942. 
• Post-Independence, AFSPA 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.

Special Powers under AFSPA

• AFSPA provides for special powers for the armed forces that can be imposed by the Centre or the Governor of a state, on the state or parts of it, after it is declared “disturbed’’ under Section 3.
• They have the authority to prohibit a gathering of five or more persons in an area.
• It allows armed forces to open fire after warning the suspect, even causing death, against any person in contravention of the law or carrying arms and ammunition. 
• It gives armed forces powers to arrest individuals without warrants, on the basis of “reasonable suspicion”, and also search premises without warrants.
• The Act further provides blanket impunity to security personnel involved in such operations.
  • There can be no prosecution or legal proceedings against them without the prior approval of the Centre.
• The Act further says that any suspects apprehended by security forces should be handed over to the local police station within 24 hours.
• It says armed forces must act in cooperation with the district administration and not as an independent body.

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What is a “Disturbed Area” under the AFSPA act and who has the power to declare it?

• A disturbed area is one that 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”.
• Once declared “disturbed”, a region has to maintain the status quo for a minimum of three months according to The Disturbed Areas (Special Courts) Act, 1976.
• 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.

AFSPA Implementation

• While the Act empowers the Centre to unilaterally take a decision to impose AFSPA, this is usually done informally in consonance with the state government.
  • For Example, the Centre had also imposed AFSPA in Tripura in 1972 despite opposition from the then state government.
• The Centre can take a decision to repeal AFSPA after getting a recommendation from the state government.
• AFSPA has been imposed on the Northeast states, Jammu & Kashmir, and Punjab during the militancy.
• It is effective in the whole of 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. Jammu and Kashmir too have a similar Act.

What Attempts have been made to Repeal AFSPA in the past?

• In 2000, Manipur activist Irom Sharmila began a hunger strike, which would continue for 16 years, against AFSPA. 
• The Justice Jeevan Reddy Commission submitted its report in 2005, saying AFSPA had become a symbol of oppression and recommending its repeal. 
• The Second Administrative Reforms Commission, headed by Veeerapa Moily, endorsed these recommendations.

Concerns

• AFSPA has been a controversial one, with human rights groups opposing it as being aggressive. 
• Multiple states and non-state armed actors have operated under AFSPA’s shadow.
  • For instance, in Assam in the 1990s, death squads — or “secret killers” as they were called — carried out a wave of extrajudicial killings. 
  • These could not have occurred without the cover provided by AFSPA’s disturbed area designation.
• In some parts of Northeast India, AFSPA is now routinely extended every six months. But there is little evidence that any meaningful review occurs at those times while taking a decision to extend AFSPA.
• The AFSPA has often been under the scanner for giving the armed forces personnel the “license to kill”.

Supreme Court Observation on AFSPA

• The practice of deploying the armed forces to assist civil power, the ruling stressed, is premised on the assumption that “normalcy would be restored within a reasonable period”. 
• If the civil administration and the armed forces fail to achieve this, that “cannot be a fig leaf for the prolonged, permanent or indefinite deployment of the armed forces”.
• That would be a mockery of “our democratic process” and “a travesty” of the constitutional distribution of powers between the Centre and the states, which provides the legal foundation for the practice.

Way Forward

• Any force that operates in a counter-terrorism environment, and in the case of J&K, superimposed by proxy war, needs protection.
  • Therefore, any future amendment needs to cater to the protection of the armed forces operating in a disturbed area.
• At the same time, protection for the armed forces must be accompanied by provisions that ensure responsibility and accountability, within the parameters of the law. It is for this reason that robust safeguards need to be incorporated into the existing or any new law.

• Specific Suggestions Could Include:
  • Create committees at the district level with representatives of the army, police, civil administration, and the public to report, assess and track complaints in the area. 
  • All investigations should be time-bound. Reasons for the delay should be communicated to the aggrieved. 
  • There is a need to keep detailed records of operations, to ensure suitable proof of conduct of forces and operational imperatives. 
  • All old cases of human rights violations should be fast-tracked and judgments communicated to the aggrieved.

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