The Armed Forces (Special Powers) Act (AFSPA), often called one of India's most controversial laws, empowers security forces to address challenges in "disturbed areas." While it has been instrumental in countering insurgencies, it has also faced allegations of human rights violations. Recently, AFSPA was reimposed in six police station areas in Manipur, reflecting ongoing ethnic tensions and insurgent violence. This blog delves into the provisions, implications, and debates surrounding AFSPA, aiming to provide a comprehensive understanding.
Provisions of AFSPA
1. Special Powers to Armed Forces
Use of Force: Security personnel can open fire, even causing death, if they deem it necessary for maintaining public order after providing due warning.
Arrests Without Warrant: Armed forces can arrest individuals on suspicion of a cognizable offense, without prior approval from civil authorities.
Search Without Warrant: The armed forces can search premises, vehicles, or individuals and seize materials that may be used unlawfully.
Destruction of Shelters: Forces are permitted to destroy structures believed to be used for insurgent activities, such as hideouts, arms depots, or training facilities.
Legal Immunity: Personnel operating under AFSPA cannot be prosecuted or sued without prior sanction from the central government.
2. Declaring Disturbed Areas
A region is declared "disturbed" under Section 3 of AFSPA when it faces significant threats to public safety or national sovereignty.
The power to declare an area disturbed lies with the Governor of that State or the Administrator of that Union territory or the Central Government.
3. Other Provisions
Central Oversight: The central government reviews and decides on the continuation of AFSPA in consultation with the state government.
Application Across States: Currently, AFSPA is in force in parts of Manipur, Nagaland, Arunachal Pradesh, and Assam, while its application has been gradually reduced in regions like Meghalaya and Tripura.
What Are Disturbed Areas?
A "disturbed area" refers to a region where the normal law-and-order machinery fails to function due to significant threats like insurgency or ethnic violence. The central or governor declares such areas to facilitate military intervention. For instance, Manipur, Nagaland, and parts of Assam have been frequently designated as disturbed areas.
Arguments in Favour of AFSPA
Ensuring National Security: AFSPA provides armed forces with the autonomy to act decisively in insurgency-hit regions, ensuring the nation's territorial integrity.
Operational Flexibility: The absence of bureaucratic hurdles allows quick and effective responses to threats, as seen in successful counter-insurgency operations in Punjab and Mizoram.
Restoration of Normalcy: In areas like Nagaland, AFSPA played a pivotal role in restoring order during periods of heightened insurgency.
Arguments Against AFSPA
Human Rights Concerns: Organizations like Amnesty International have documented instances of alleged misuse, including extrajudicial killings, torture, and sexual violence.
Prolonged Enforcement: In some areas, AFSPA has been in force for decades, leading to public discontent and alienation, as seen in Manipur and Nagaland.
Immunity Clause: The requirement of prior approval from the central government for prosecution often leads to a lack of accountability.
Supreme Court’s Guidelines on AFSPA
These guidelines are mainly derived from key rulings like the Naga People’s Movement for Human Rights v. Union of India (1997) and subsequent cases, providing checks and balances on how AFSPA should be applied. Here are the key points:
Proportional Use of Force: Security forces must use the minimum force necessary to control the situation. They should issue a warning before using lethal force, which should be used only when necessary for public order.
Investigation of Deaths and Injuries: Any death or injury caused by armed forces during AFSPA operations must be investigated promptly and impartially. This ensures accountability for actions taken under the Act.
Periodic Review of Disturbed Area Status: The government must regularly review areas under AFSPA. It should withdraw the law where conditions have improved, preventing its indefinite application.
Regulation of Powers: The Court emphasized that AFSPA's extraordinary powers should be exercised under strict legal scrutiny and should not override constitutional rights. Security actions are subject to judicial review when necessary.
Key Committees and Their Recommendations
Jeevan Reddy Committee (2005):
Recommended repealing AFSPA, terming it "harsh and draconian."
Suggested replacing it with a more humane law incorporating accountability mechanisms.
Justice Verma Committee (2013):
Focused on safeguarding women in conflict zones.
Recommended amending AFSPA to ensure greater accountability in cases of sexual violence involving armed forces personnel.
Santosh Hegde Commission (2013):
Highlighted cases of extrajudicial killings in Manipur.
Advocated for time-bound trials of personnel accused of abuse.
2nd Administratively Reforms Commission (ARC) 5th report on "Public Order":
Recommended repeal of Armed Forces Special Powers Act, 1958.
It commented that its scrapping would remove sentiments of discrimination and alienation among the people of North East India.
Way Forward
Periodic Review: Regularly assess areas designated as "disturbed" and lift AFSPA where peace prevails.
Strengthened Accountability: Establish independent oversight mechanisms to investigate complaints against security forces.
Development and Dialogue: Address the root causes of insurgency through inclusive development programs and sustained dialogue with local communities.
Legal Reforms: Amend AFSPA to balance operational flexibility for security forces with stronger safeguards for human rights.
Conclusion
AFSPA represents the delicate balance between ensuring national security and safeguarding human rights. While it has been instrumental in combating insurgencies, its prolonged application and alleged misuse underline the need for reforms. A reimagined approach, blending accountability with operational efficacy, can help India navigate the challenges of conflict while upholding its democratic ethos.
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