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Why in the news?

The Ministry of Home Affairs extended Armed Forces (Special Powers) Act (AFSPA) in Nagaland for another 6 months- till December 31, 2021. The Armed Forces (Special Powers) Act (AFSPA) has been in force in Nagaland for several decades.

Present Context:

• The entire State of Nagaland has been declared ‘disturbed area’ Centre extends AFSPA in Nagaland till 31 December
• The Ministry of Home Affairs stated in a notice that the Central government believes the territory encompassing the whole State of Nagaland is in such a disturbed and hazardous state that the employment of armed troops in support of civilian rule is required.
• Killings, looting, and extortion have been reported in various regions of the state, necessitating the decision.

Armed Forces Special Powers Act:

• The Act was passed in 1958 to manage what the government referred to as “disturbed regions.”
• The Armed Forces (Jammu & Kashmir) Special Powers Statute, 1990, is a similar but different act in Jammu & Kashmir.
• It applies to all of Nagaland, Assam, Manipur (excluding seven Imphal assembly seats) and portions of Arunachal Pradesh. On April 1, 2018 the Centre cancelled it in Meghalaya.
• The Act gives the Governor/Administrator of the State/UT the authority to declare a region as “disturbed.” According to the Disturbed Areas (Special Courts) Act of 1976, once proclaimed, the region must preserve the status quo for a minimum of three months.
• According to the Act, it can be used in situations where the employment of armed forces in support of civil power is required.
• The AFSPA gives the Army and Central forces deployed in “disturbed areas” the power to search premises and arrest without a warrant, and to use force to the point of death.
• It also gives security forces immunity in carrying out various operations and protects them from prosecution and legal suits without the approval of the Centre; and it gives security forces immunity from prosecution and legal suits without the approval of the Centre.
• Every six months, a review of the ‘disturbed area’ should be conducted to check for arbitrariness.

When a state or region declared is as disturb area?

• When racial, religious, linguistic, regional, and caste divisions develop and anarchy ensues, the state or central government has the authority to proclaim the area as “Disturbed Area Act” territory.
• AFSPA only applies to places that have been designated as disturbed zones. Only when this law has been implemented will the army and armed forces be dispatched to the region.
• According to Section (3) of the AFSPA, it is essential to obtain the state government’s view on whether or not an area has been disturbed. If a disturbed region is declared, it will be under Special Forces supervision for at least three months.

Which powers are given to the Armed forces under the ASFPA?

• Without a warrant, any suspect can be arrested; armed troops can search any residence without a warrant, and necessary force can be employed to search it.
• The armed forces have the power under this legislation to ban gatherings of five or more people in a certain location, and in some instances, the forces have the ability to open fire on the disrupting factors after giving proper notice if they find any suspicious individual.
• If a person is a repeat offender who attempts to disturb the peace in the region, the armed forces have the right to use force against him until he dies.
• If the Armed Forces think a terrorist or criminal is sheltering in a house or building, the place or structure can be demolished.
• Any vehicle can be stopped and searched, and even if the armed forces do something unlawful, no legal action is taken against them.

Pros of AFSPA:

• The armed forces are able to safeguard the country’s borders due to the authority granted to them.
• 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.
• The ASFPA empowers the armed forces to uphold the rule of law in the country’s troubled areas, boosting their morale.

Cons of AFSPA:

• There have been several instances where the military’s repressive capabilities have been abused.
• In the troubled regions, the armed forces stage phone encounters and sexually exploit the women.
• AFSPA,violates human rights
• Some opponents likened the ASFPA to the British Rowlatt Act because, like the Rowlatt Act, any suspected individual can be detained based on suspicion in the ASFPA.

Role of the judiciary:

• Given that law and order is a state matter, there were concerns regarding the validity of AFSPA. In a 1998 decision (Naga People’s Movement for Human Rights v. Union of India), the Supreme Court affirmed AFSPA’s legality.
• In judgement, the Supreme Court arrived at certain conclusions including:
  • The central government can make a statement on its own initiative; however, it is preferable for the central government to contact the state government before making the proclamation;
  • AFSPA does not grant arbitrary authority to designate an area a “disturbed area”; the declaration must be for a fixed length of time, and the proclamation must be reviewed on a regular basis. The six-month period has ended;
  • The approved officer shall use the least amount of force required for successful action when executing the rights granted on him by AFSPA. The authorized officer should carefully adhere to the army’s “Dos and Don’ts.”

Committee and recommendation:

• Jeevan Reddy Committee: The central government formed a five-member committee, led by Justice B P Jeevan Reddy, to evaluate the act’s provisions in the northeastern states in November 2004.
• The committee recommended that:
  • The AFSPA should be abolished, and the Unlawful Activities (Prevention) Act of 1967 should be amended to include suitable measures.
  • The Unlawful Activities Act should be amended to explicitly define the powers of the armed forces and paramilitary forces, and grievance cells should be established in every area where the armed forces are stationed.
  • Second ARC Recommendation: The AFSPA was also recommended for repeal in the Fifth Report of the Second Administrative Reforms Commission (ARC) on Public Order. These suggestions, however, have not been adopted.

Mains oriented question:

The continuation of the Armed Forces Special Powers Act (AFSPA) in regions designated as “disturbed” is a political matter that necessitates talks on the ground. Unfortunately, a lack of political will in this area has further alienated the local population. What are your thoughts on this argument? Examine critically.