SHOULD AFSPA BE REPEALED OR NOT?

THE CONTEXT:  After the killing of 13 civilians in Nagaland, many activists and states government of the North-East is demanding the repealing of the Armed Forces Special Powers Act (AFSPA) from the state. There have been different views and opinions over it. This article discusses various issues around Armed Forces Special Protection Act (AFSPA).

WHAT HAPPENED IN NAGALAND?

• In Nagaland, the Indian Army’s 21 Para regiment responded to an insurgent group’s intel. The plan was to ambush the group, but Army shoot 6 civilians by mistake. When they were returning home in a vehicle from a coal mine, the incident took place.
• After killing these people, the local resident had gathered at the scene, and a clash erupted. Seven more civilians and one soldier were killed in the scuffle. In total, 15 people (14 civilians and 1 soldier) lost their lives (so far).
• The regiment is not often based in Nagaland and reports say they were brought in from Assam for the special op. The 21 paras are also an elite special forces unit, signifying that the operation was cleared at a high level.

WHY ARE PEOPLE DEMANDING FOR THE REPEALING AFSPA LAW?

• Armed Forces Special Powers Act (AFSPA) is often referred to as a draconian colonial-era law.
• In the North-East, it is in place in ‘disturbed’ parts of Assam, Nagaland, Manipur (except Imphal), Arunachal Pradesh and Meghalaya. It gives the Army sweeping powers to arrest, shoot or kill anyone based on suspicion. They don’t require a warrant to do so. And Army personnel involved are seldom charged with any crime in such cases.

ALL YOU NEED TO KNOW ABOUT AFSPA

THE ORIGIN:

• The British promulgated the Armed Forces Special Powers Ordinance of 1942 on 15 August 1942 to suppress the Quit India Movement. Modeled on these lines, four ordinances were invoked by the central government to deal with the internal security situation in the country in 1947 which emerged due to the Partition of India.
• Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance.
• In 1954, the Naga began an uprising for independence. At this point, Nehru’s government passed the “Armed Forces Special Powers Act” (1958) in the parliament.

FEATURES OF AFSPA:

• Passed in 1958 for North East and in 1990 for Jammu and Kashmir, the law gives armed forces necessary powers to control disturbed areas that are designated by the government.
• As of now, this act is in force in Jammu and Kashmir, Assam, Nagaland, and parts of Arunachal Pradesh and Manipur.

DISTURBED AREA:

• A disturbed area 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.

WHAT ARE THE SPECIAL POWERS GIVEN TO ARMY OFFICIALS?:

• Under Section 4 of the AFSPA, an authorized officer in a disturbed area enjoys certain powers. The authorized officer has the power to open fire at any individual even if it results in death if the individual violates laws that prohibit (a) the assembly of five or more persons; or (b) the carrying of weapons. However, the officer has to give a warning before opening the fire.
• The authorized officer has also been given the power to (a) arrest without a warrant; and (b) seize and search without any warrant any premise to make an arrest or recovery of hostages, arms, and ammunition.
• Individuals who have been taken into custody have to be handed over to the nearest police station as soon as possible.
• The prosecution of an authorized officer requires prior permission of the Central government.

AFSPA IN DIFFERENT STATES

SUCCESS STORIES

In 2015 Tripura repealed AFSPA. Under chief minister Manik Sarkar, the Tripura administration did a remarkable job of getting on top of insurgency. It was a combination predominantly of political will and the use of security forces to bring peace. Mizoram is another example. There, the greatest success lay in the central leadership under Rajiv Gandhi offering to make Laldenga the chief minister. The involvement of insurgent leaders in electoral politics can be an effective way to deal with the insurgency.

• At present, it is in force in the States of Assam, Nagaland, Manipur {excluding Imphal Municipal Council Area}, Changlang, Longding, and Tirap districts of Arunachal Pradesh, and areas falling within the jurisdiction of the eight police stations of districts in Arunachal Pradesh bordering the State of Assam.
• Assam was the first state where AFSPA was enforced. The whole State except the Guwahati Municipal Area is under AFSPA.
• In 2018, The AFSPA has been removed completely from Meghalaya and partly in Arunachal Pradesh.
• Nagaland is under the purview of AFSPA even before its formation in 1961.
• The AFSPA is applicable in the whole state of Manipur except the Imphal Municipal Area.
• Punjab state was declared disturbed and subject to the Armed Forces (Punjab and Chandigarh) Special Powers Act from 1983 to 1997.
• The AFSPA is applicable in the whole state of Jammu and Kashmir. It was applied under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.
• Mizoram was declared a disturbed area in January 1967. Following the signing of a peace accord in June 1986, the AFSPA is no longer applied in Mizoram.
• In 2015, the Tripura government had lifted AFSPA from the state after 18 years. The reason behind the removal of AFSPA in Tripura was that there has been a significant decline in militancy.

JUDICIAL PRONOUNCEMENTS ON AFSPA

NPMHR VS UOI:

• The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement-Naga People’s Movement of Human Rights v. Union of India.
• In this judgment, the SC arrived at certain conclusions including

1. A suo-motto declaration can be made by the Central government, however, the state government should be consulted by the central government before making the declaration.
2. AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’.
3. The declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired.
4. While exercising the powers conferred upon him by AFSPA, the authorized officer should use the minimal force necessary for effective action.

The authorized officer should strictly follow the army’s ‘Dos and Don’ts’ issues. Few ‘Dos and Don’ts’ are as follows :

DO’S

• Act only in the area declared ‘Disturbed Area’ under Section 3 of the Act.
• Arrest only those who have committed the cognizable offense.
• Hand over the arrested persons to the nearest police station with the least possible delay.
• Ensure medical relief to any person injured during the encounter.
• Answer questions of the court politely and with dignity.
• Maintain a detailed record of the entire operation correctly and explicitly.

DONT’S

• Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station.
• Do not use any force after having arrested a person except when he is trying to escape.
• Do not use third-degree methods to extract information or to extract a confession or other involvement in unlawful activities.
• After the arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force.
• Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.
• Do not tamper with official records.

EEVFAM VS UOI:

In 2016, in a landmark ruling– Extra Judicial Execution Victim Families Association (EEVFAM) vs Union Of India, the Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA.

STAND TAKEN BY GOVERNMENT AND MILITARY

GOVERNMENT: In 2018, the government informed parliament that the government has taken no decision to repeal the controversial AFSPA as recommended by the Jeevan Reddy Committee Report.

MILITARY: The serving military establishment has fiercely stalled AFSPA’s repeal, as viciously as it would fight a war against an enemy. Senior officers even launched a Facebook campaign to “save AFSPA.” Without the AFSPA, the Army will not be able to stage counter-insurgency operations. AFSPA free enclaves will be magnets for insurgents.

REPEAL OR NOT?

REPEAL:

• It has been dubbed as a license to kill. Human Rights Activists object to sections 4 and 6 of the act.
• Critics say the act has failed to contain terrorism and restore normalcy in disturbed areas, as the number of armed groups has gone up after the act was established. Many even hold it responsible for the spiraling violence in areas it is in force.
• The decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. Hence, several cases of human rights violations go unnoticed.
• AFSPA is inconsistent with the structure and spirit of our democracy and brings down India’s image at the global high table at a time when it is looking to be a permanent member of the U.N. Security Council.
• The primary focus of a counter-insurgency operation should be WHAM (winning hearts and minds), and not liquidation or elimination. AFSPA lets troops get away with murder. Its frequent use encourages a culture of impunity that is counterproductive to WHAM; it increases the disconnection between the forces and the local population.
• AFSPA leads to a sharp drop in professionalism and dehumanizes and corrupts the Army and paramilitary forces.
• According to a few retired senior police officers involved in the thick of counter-insurgency operations, AFSPA is like having a shield for security apparatus when it is no longer required. After a certain amount of time, there is no correlation to controlling violence with AFSPA.

NOT TO REPEAL: 

• Most of the arguments against AFSPA are idealistic i.e. the arguments do not include the concerns of the army. It selectively excludes the sensitivity of the issue.
• Removal of the act will lead to demoralizing the armed forces and see militants motivating locals to file lawsuits against the army.
• The absence of such a legal statute would adversely affect organizational flexibility and the utilization of the security capacity of the state. This would render the security forces incapable of fulfilling their assigned role.
• Extraordinary situations require special handling. As the army does not have any police powers under the Constitution, it is in the national interest to give it special powers for operational purposes when it is called upon to undertake counter-insurgency operations in disturbed areas.
• The first principle of security is to accept reality as it is and not what one wants it to be. Thus, Army has taken a pragmatic stand and advocated that AFSPA as the sine qua non for counter-insurgency operation in disturbed areas.
• Jammu & Kashmir and the North-East region converge both India’s internal and external security. Thus given the strategic importance of these regions and the huge international porous border, AFSPA becomes the necessary tool in the hands of the Army. It is an evil but necessary one.

PROTECTIVE MEASURES PROVIDED:

• Section 5 of the Act already mandates that arrested civilians must be handed over to the nearest police station, along with a report of ‘circumstances occasioning the arrest.’
• Army HQ has also laid down that all suspects who are arrested will be handed over to civilian authorities within 24 hours.
• Regarding firing on civilians, the army’s instructions are that fire may be opened in towns and villages only in self-defense and that too when the source of terrorist or militant fire can be identified.

RECOMMENDATIONS MADE BY EXPERTS

JEEVAN REDDY COMMITTEE: The committee found that the powers conferred under the Act are not absolute; it nevertheless concluded that the Act should be repealed. it recommended that essential provisions of the Act be inserted into the Unlawful Activities (Prevention) Act of 1967.

The key recommendations of the Reddy Committee were:

• If the situation warrants, the state government may request the Union government to deploy the army for not more than six months.
• The Union government may also deploy the armed forces without a request from the state. However, the situation should be reviewed after six months and Parliament’s approval should be sought for extending the deployment.
• Non-commissioned officers may continue to have the power to fire.
• The Union government should set up an independent grievances cell in each district where the Act is in force.

JUSTICE VERMA REPORT: Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law. There is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.

THE SECOND ARC: It recommended that AFSPA should be repealed and its essential provisions should be incorporated in the UAPA.

SANTOSH HEGDE COMMISSION ON MANIPUR ENCOUNTER DEATHS: It suggested fixing a time frame of three months for the central government to decide whether to prosecute security personnel engaged in extrajudicial killings or unruly behavior in insurgency-hit regions. The commission noted that AFSPA was an impediment to achieving peace in regions such as Jammu and Kashmir and the North East. The commission also said the law needs to be reviewed every six months to see whether its implementation is necessary for states where it is being enforced. Section 6 of the act said that it is not that no action can be taken at all. Action can be taken but with prior sanction of the Central Government.

SARKARIA COMMISSION: It suggested the states develop their system of maintaining and dealing with public order.

THE NATIONAL POLICE COMMISSION: It recommends deploying the Central Reserve Police force for day-to-day policing instead of engaging the army and paramilitary forces.

UNITED NATIONS VIEW: In 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy. Some UN treaty bodies have pronounced it to be in violation of International Law.

NON-GOVERNMENTAL ORGANIZATIONS’ ANALYSIS: Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses under AFPSA. According to Amnesty International India, AFPSA legitimizes impunity for sexual violence among women and opens up the floodgates to extrajudicial killings in the declared disturbed areas.

THE WAY FORWARD: HOW CAN COUNTER-INSURGENCY OPERATIONS BE IMPROVED IN INDIA?

BETTER WORKING OF THE AFSPA:

Some viable suggestions for better working of the AFSPA could be:

• Section 4(a) should be repealed or amended as it is against be the right to live. It also violates the principles upheld by criminal justice: the assumption of innocence until one is proven to be the offender. It is also inconsistent with Article 246 and the 7th Schedule that places ‘Law and order’ under the State’s list. Therefore, it is Ultra vires.
• Section 5 of the Act should be consistent with Article 22 of the constitution under which it is compulsory to present an arrested person in front of the Magistrate within 24 hours.
• The scope of Section 6 should be increased. The sanction of the Central Government shouldn’t be waited for; maybe a special committee could be formed to begin inquiries straight away without any delays or prejudices against anyone.

SMARTER APPROACH: Repeal of AFSPA should be seen as the first step to create a smarter and more effective counter-insurgency capability that draws more on information technology, psychological operations, political persuasion, and conflict resolution.

COUNTER-INSURGENCY DOCTRINE: The government will have to evolve a counter-insurgency doctrine which will not only seek to keep the Army out of the “internal security” matrix to the extent possible and deploy other specifically trained and highly skilled forces that observe the principle of “minimum force” and demonstrate a respect for human rights and accountability in keeping with the letter and spirit of the Constitution.

TRANSPARENCY: Innovative measures must overcome the practical problems encountered in ensuring transparency in counter-insurgency operations. The army must be completely transparent in investigating violations of human rights violations and bringing the violators to speedy justice. Exemplary punishment must be meted out where the charges are proved.

GENDER-SENSITIVE TRAINING: The National Crime Records Bureau (NCRB) has been reporting not only high rates of crimes against women but disturbingly low rates of conviction. A study by the Centre for Social Research, New Delhi, has asked for greater emphasis on gender awareness and sensitivity in police training. The National Police Academy was advised to formulate a gender policy for police training. But unfortunately, the document titled ‘Integrated Police Training’ (2012) prepared by NPA is silent on the vital issue of sensitizing IPS officers to domestic violence against women, violence against women in public places, and so on.

THE CONCLUSION: India’s Act East policy will gain traction only if there is a committed road map for withdrawing AFSPA. The task of the army is to combat external aggression, not policing and internal security within the country. It is high time that both the Centre and state governments actively worked towards the withdrawal of AFSPA without narrow political gains in mind.

Spread the Word