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Why in news?
The Army’s killing of 13 civilians in Nagaland’s Mon region sparked widespread outrage and renewed calls to repeal the contentious Armed Forces (Special Powers) Act (AFSPA), which was enacted in 1958.
- Nagaland’s entire state has been declared a “disturbed area.”
- The Central government considers the territory comprising the entire Situation of Nagaland is in such a disturbed and hazardous state that the use of armed forces in support of civilian rule is essential, according to a notice issued by the Ministry of Home Affairs.
- There have been reports of slayings, looting, and extortion in several parts of the state, forcing the decision.
History of AFSPA Act:
- AFSPA, like many other contentious laws, has colonial roots. The AFSPA was first adopted in 1942 as an ordinance by Viceroy Linlithgow in response to the widespread violence sparked by Mahatma Gandhi’s Quit India Movement.
- The AFSPA was enacted in 1958 after independence to assist the army in maintaining the rule of law or public order in “disturbed areas” of North East India.
- After a surge in insurgency in J&K in 1990, AFSPA was adopted.
- The military forces have the authority under this law to ban groups of 5 or more people from congregating in a given area.
- If the forces believe a person is breaking the law, they may use force or even open fire after giving adequate notice.
- The army can also arrest a person without a warrant, enter or search a person’s home without a warrant, and restrict the possession of firearms if there is a reasonable suspicion.
- Even if the armed forces commit a crime, no legal action can be brought against them.
Implement of AFSPA Act:
- The AFSPA was implemented in Punjab and the Union territory of Chandigarh in 1983, and it was repealed in 1997. Jammu and Kashmir was declared a “disturbed area” in 1990, and the Armed Forces Exceptional Powers Act (AFSPA) was enacted in the territory, where the Army retains special privileges.
- Apart from Nagaland, the AFSPA is in effect in Assam, Manipur, and Arunachal Pradesh in portions. On April 1, 2018, the Act was repealed in Meghalaya.
Armed Forces Special Powers Act:
- Disturbed regions: The Act was enacted in 1958 to deal with “disturbed regions,” as the government referred to them.
- Special Powers Statute: In Jammu & Kashmir, the Armed Forces (Jammu & Kashmir) Special Powers Statute, 1990, is a comparable but distinct act.
- It covers all of Nagaland, Assam, Manipur (excluding seven assembly seats in Imphal) and parts of Arunachal Pradesh. The Centre cancelled it in Meghalaya on April 1, 2018.
- The Governor/Administrator of the State/UT has the ability to declare a territory “disturbed” under the Act. Once declared, the zone must maintain the status quo for a minimum of three months, according to the Disturbed Areas (Special Courts) Act of 1976.
- Civil power: It can be employed in cases where the use of armed forces in support of civil power is essential, according to the Act.
- Arrest people without a warrant: The AFSPA empowers Army and Central troops deployed in “disturbed areas” to search and arrest people without a warrant, as well as employ lethal force.
- Immunity to security: It also provides immunity to security forces in carrying out certain activities and shields them from prosecution and legal action without the consent of the Centre; and it provides security forces with immunity from prosecution and legal action without the approval of the Centre.
- A review of the ‘disturbed area’ should be undertaken every six months to check for arbitrariness.
When a state or region declared is as disturb area?
- Disturbed Area Act: When racial, religious, linguistic, regional, and caste differences emerge and chaos ensues, the state or federal government has the right to declare the area “Disturbed Area Act” territor.
- Disturbed zones: AFSPA only applies to disturbed zones that have been recognised. The army and armed forces will not be assigned to the region until this law has been enacted.
- Section (3) of the AFSPA states that it is critical to acquire the state government’s opinion on whether or not an area has been disturbed before the army and armed forces are dispatched to the region. If a troubled area is declared, it will be supervised by Special Forces for at least three months.
Which powers are given to the Armed forces under the ASFPA?
- Arrested without a warrant: Any suspect can be arrested without a warrant; armed troops can search any residence without a warrant, and necessary force can be used to do so.
- Prohibit gatherings: Under this legislation, the armed forces have the authority to prohibit gatherings of five or more people in a certain location, and in some cases, the forces have the authority to open fire on the disrupting factors after giving due warning if they discover any suspicious individuals.
- Terrorist or criminal: If the Armed Forces believe a terrorist or criminal are hiding out in a house or building, it can be demolished.
- Illegal activity: Any vehicle can be stopped and searched, and no legal action is taken against the armed forces if they do something illegal.
Pros of AFSPA:
- Empowers the armed forces: The ASFPA empowers the armed forces to uphold the rule of law in the country’s troubled areas, boosting their morale.
- Unable to combat insurgents: In the absence of stringent legislation, the military forces will be unable to combat insurgents within the country, particularly in Kashmir and the country’s north-eastern regions.
- Rule of law: The ASFPA equips the armed forces with the authority to maintain the rule of law in problematic areas of the country, bolstering their morale.
Cons of AFSPA:
- Military’s repressive capabilities: The military’s repressive capabilities have been deployed inappropriately on multiple occasions.
- Violates human rights: Armed forces organise phone encounters and sexually exploit women in difficult areas; AFSPA violates human rights.
- Detained on suspicion: Some critics compared the ASFPA to the British Rowlatt Act because, like the Rowlatt Act, the ASFPA allows any suspected individual to be detained on suspicion.
Role of the judiciary:
- The legitimacy of AFSPA was questioned because law and order is a state issue. The Supreme Court upheld the legitimacy of AFSPA in a 1998 ruling (Naga People’s Movement for Human Rights v. Union of India).
- In judgement, the Supreme Court arrived at certain conclusions including:
- The central government has the authority to issue a statement on its own initiative; nevertheless, it is preferable for the central government to contact the state government first;
- AFSPA does not grant arbitrary authority to designate an area as a “disturbed region”; the declaration must be for a set period of time, and the proclamation must be evaluated on a regular basis. The six-month period is already over;
- When executing the rights provided to him by AFSPA, the approved officer shall use the least degree of force necessary for successful action. The authorised officer must follow the army’s “Do’s and Don’ts” strictly.”
Committee and recommendation:
- Jeevan Reddy Committee: In November 2004, the central government appointed a five-member committee, led by Justice B P Jeevan Reddy, to assess the provisions of the act in the northeastern states.
- The committee recommended that:
- The AFSPA should be repealed, and the 1967 Unlawful Activities (Prevention) Act should be revised to incorporate appropriate provisions.
- The Unlawful Activities Act should be modified to clearly define the powers of the military and paramilitary forces, and grievance cells should be established in every area where the military is stationed.
- Second ARC Recommendation: The Fifth Report of the Second Administrative Reforms Commission (ARC) on Public Order also advocated removal of the AFSPA. However, none of these proposals have been implemented.
Mains oriented question:
The continuation of the Armed Forces Special Powers Act (AFSPA) in “disturbed” areas is a political issue that requires on-the-ground negotiations. Unfortunately, the local people have become even more alienated due to a lack of political will in this area. What are your opinions on this topic? Examine critically.