TOPIC: WHETHER THE AFSPA IS A SOLUTION TO THE SECURITY CHALLENGES IN NORTHEAST INDIA?

THE CONTEXT: The Armed Forces (Special Powers) Act (AFSPA) has been extended in the hill areas of the Manipur state except for some areas in the Imphal Valley and four district of Assam for six more months from starting from October 1, 2023. The extension is due to a surge in ethnic violence and insurgent activities. This article analyses the AFSPA legislation and various issues related to its implementation from the UPSC perspective.

ABOUT THE ARMED FORCES (SPECIAL POWERS) ACT, 1958

• The Act came into force in 1958 in the context of increasing violence in the Northeastern States, 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.
• AFSPA gives armed forces the power to maintain public order in “disturbed areas”.
• Under the Act, armed forces have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law.
• If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search a premises without a warrant and ban the possession of firearms.
• Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

What is a “disturbed area” and who has the power to declare it?

• A disturbed area is one which 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 G
• overnor 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 in this regard.
• As per Section 3 of the Act, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
• 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.

At present it is applied in which states?

States under AFSPA include:

1. Entire state of Assam

2. Entire state of Nagaland

3. Entire state of Manipur (excluding seven assembly constituencies of Imphal)

4. Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam).

5. Jammu and Kashmir too has a similar Act.

It was completely lifted from Meghalaya in April 2018. It was repealed in Tripura in 2015.

WHY THE AFSPA IS NEEDED?

NATIONAL SECURITY AND TERRITORIAL INTEGRITY

• With the powers given by AFSPA, the armed forces have been able to protect the borders of the country and internal insurgency for decades.
• For example, without the army’s counter-terrorism measures under the AFSPA, India could have lost Jammu and Kashmir in the 1990s.
• The government at the time had almost given up, but the army stood firm in its constitutional duty to safeguard and retain every inch of Indian territory.
• Therefore, a strict law is needed to tackle the insurgent elements inside the country particularly in the Kashmir and northeastern region for effective Counter-insurgency and to protect borders.

TOUGH MEASURE FOR TERRORISM

• A major reason for the continuation of this Act is violence, extortion and increasing terrorism in the country.
• Here, this Act enhances the ability of the security forces to keep terrorism under check.
• As, terrorism would never have been rooted out in Punjab or Mizoram without the AFSPA and without the tough measures that were taken by the security forces operating under the protection of the Act.
• If AFSPA is repealed, that will create a huge gap in the security grid and will give terrorists, be they in Kashmir and Manipur, the upper hand.

INEFFICIENCY OF ORDINARY LAWS

• The AFSPA is applied to an area only when the ordinary laws of the land are found to be inadequate to deal with the extraordinary situation perpetrated by insurgents spreading terror.
• The AFSPA is in force in areas where abnormality prevails and where the terrorists do not observe the niceties of the Constitution.
• Extraordinary situations demand extraordinary measures, and AFSPA is what is required to deal with anti-Indian terrorists whose stated objective is breaking up the country.

OPERATIONAL REQUIREMENTS

• AFSAP provides a framework for operation requirements in the area where there is absence of a legal statute and which would adversely affect organisational flexibility and the utilisation of the security capacity of the state.
• Therefore, the Act allows armed forces to fulfill their assigned role and allows soldiers to carry out military operations which would otherwise, in the absence of any legal mandate, be legally and morally questionable.

PROTECTS THE RIGHT OF SOLDIER

• AFSPA boosts the morale or mental well-being of the armed forces for ensuring the public order in the disturbed areas and removal of the Act would lead to militants motivating locals to file lawsuits against the army.
• As, soldier is also a citizen with equal obligations and the same rights as any other Indian citizen who voluntarily stripes themselves from fundamental rights. In this respect, AFSPA provide the armed forces the means and essentials to perform the responsibilities and tasks assigned to them.

THE ISSUES IN AFSPA

VIOLATE FUNDAMENTAL RIGHTS AND HUMAN RIGHTS

• There is repeated concern of misuse of powers by armed forces which in turn violates human rights and fundamental rights of the citizen. It is against the Universal Declaration of Human Rights which India has signed.
• There are several instances where the armed forces have found to be misusing the oppressive powers given by the Act like fake encounters, sexually exploiting the women in the disturbed areas.
• Also, the more disturbing fact is that the armed forces escape with impunity for their actions since legal suits cannot be filed against them as per the Act.

MALIGN INTERNATIONAL IMAGE

• India is often considered as a country around the world that gives significance to the rights and liberties of its citizens.
• But, with the actions under AFSPA Act in the states of Manipur, Jammu & Kashmir, Nagaland it is giving the wrong image that law in making a mockery of human rights which is maligning the image of nation in internation arena.
• Over the years, people have campaigned to repeal the Act and even international organizations like Amnesty International have asked the courts in India to look into the matter deeply and conduct investigations regarding rampant misuse of powers by armed forces.

UNCONSTITUTIONALITY OF AFSPA

• AFSPA is increasingly being recognized as a draconian, discriminatory and oppressive law that transforms India from a democratic country to an authoritarian one due to its unconstitutional and undemocratic nature.
• Investigating the constitutionality of AFSPA is a continuing concern within the legal sphere as it is continuously violating Article 14(Equality before law), Article 19(Protection of certain rights regarding freedom of speech etc) and Article 21(Protection of life and personal liberty) among others.

LAW WITH MINDSET OF COLONIAL ERA

• Armed Forces Special Powers Act, 1958 has also sometimes being compared to the Rowlatt Act where any suspicious person can be arrested only based on doubt like in the AFSPA.
• Under Rowlatt Act too Britishers gave themselves unbridled powers to imprison any person on the basis of any suspicion of them being involved in any terrorist activity against British India for up to 2 years without giving them a chance for a trial.

NOT A BETTER SOLUTION

• Critics argue that this Act has failed in its objective of restoring normalcy in disturbed areas although being in existence for about 50 years.
• Critics also assert that there is no need to run the nation on the basis of the bullet while the issue could be addressed on the basis of the ballet (election).

WHETHER THE AFSPA NEEDS TO BE REMOVED?

With all the prevailing issues of AFSPA, concerns have continuously raised to repeal the Act.

• The core argument raised in the repealing of the Act is based on violation of Article 21 of Indian constitution i.e. the right to life: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
• AFSPA allows even a non-commissioned officer, normally a class 10 pass jawan with about 12 years of service in the ranks, to be above the law and pass a ‘Kill’ decision without giving the other party a fair chance to explain his case. This is a clear infringement of Article 21 (Right to life) because the accused was sentenced to death without being heard.
• Also, the term ‘procedure established by law’ cannot mean any procedure passed as an Act by parliament. There must be rule of law, not rule by law. In the famous case of Maneka Gandhi, it has been held that any procedure established by law if unjust would not be a procedure at all.
• The two sections of the AFSPA that violate ‘due process’ are sections 4a and 7.

1. Under Sec 4 a – Any commissioned officer, warrant officer, non-commissioned officer or officer of equivalent Act, in a ‘Disturbed Area after giving such warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order.

2. Under Sec 7 – No prosecution, suit or other legal proceedings shall be instituted except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act.

• ‘Due process of law’ must be ‘fair’ and even a minimalist reading of ‘fairness’ demands that the person be informed of the charge and be given an opportunity to refute t it. This is the principle of natural justice and one canon of natural justice is audi alteram partem i.e. both sides should be heard.
• Even, if the case to impose AFSPA in an area goes to the court, state claims that residents of a state or district under the Disturbed Area Act cannot claim equality before law (Article 14), with residents of areas not under that Act, in being subject to different laws. They substantiate their argument by saying that Article 14 does not forbid ‘reasonable classification’ for the purposes of legislation. However, that argument does not hold good for making a law that violates the ‘Right to Life’.
• Another argument is given that the removal of AFSPA endanger the life of troops since they will now be wary of shooting first, which it will, in some cases. However, if they do commit mistakes as ‘genuine errors’, the law will provide them with a full opportunity to prove it in court.
• Therefore, the time is now ripe for a fresh judicial review of AFSPA by the Supreme Court. India will not get weakened by the removal of AFSPA and in fact, it will be strengthened because the removal of an unjust umbrella will force units to desist from wrong acts and that will increase the willingness of ordinary citizens to abide by the law.

WHETHER AFSPA IS A SOLUTION TO PROBLEMS IN MANIPUR?

• The Hill areas in Manipur will continue to be under the Armed Forces (Special Powers) Act (AFSPA) for another six months from October.
• In this respect, question arises whether the AFSPA is still needed to be extended given the violent ethnic conflict between the Meitei and the Kuki communities since May 2023.
• The Army had sought its re-imposition, as it felt that the absence of the law is hampering its operations against insurgent groups, which may be using the unrest to gain a foothold in the State.
• Government argument in this regard is that AFSPA is meant only to provide legal protection to forces engaged in counter-insurgency operations amidst internal conflict. Even, the notification says the issue of declaring an area as ‘disturbed’ is quite sensitive and it may lead to public criticism and resistance.
• One of the reasons for the government maintaining the status quo on the extent of the ‘disturbed areas’ is that a detailed assessment of the ground situation is not possible at the moment with widespread violence.
• However, the Centre should not delay any serious initiative further to bring about reconciliation between the two communities to deter this violent situation as AFSPA can be a short-term solution but a fresh approach is need to resolve the issue permanently.

THE WAY FORWARD

• Work on root cause: Secessionist movements in the country signify the failure of politics, and it is up to the government to resolve the root causes. There is need to create conditions which can convince the insurgents to stop insurgency, militants to stop militancy, terrorists to stop terror. Until then, AFSPA can function with keeping the army empowered and using the force only as a last resort.
• Ensure responsibility: With current existing provisions of AFSPA or other enabling legal measures it becomes the responsibility of authorized person to execute military operation with restraint. Stringent rules, guidelines and advisories need to be in existence regarding the respect for human rights and fundamental rights.
• Implement committee recommendation: The government and the security forces should also abide by the guidelines set out by the Supreme Court, Jeevan Reddy Commission, and the National Human Rights Commission (NHRC). The Jeevan Reddy committee even recommended that some of the provisions should be transferred to Unlawful Activities (Prevention) Act, 1967 and asked to set up ‘grievance cell’ that will do the work to enquire into the complaints filed for violation of basic human rights.
• Need of accountability: Official should be held accountable for their actions and stringent disciplinary actions should be taken after departmental inquiries. This will deter the armed forces from taking immediate actions that are unlawful.
• Reduce the implementation area under the Act on case-by-case basis: The status quo of the Act is no longer an acceptable solution due to numerous human rights violation incidents that have occurred over the years. The government should consider the imposition and lifting of AFSPA on a case-by-case basis and limit its application only to a few disturbing districts instead of applying it to the whole state.

THE CONCLUSION:  The AFSPA has been alleged that it has become a symbol of oppression in the areas it has been implemented. Hence the government needs to address the problems of affected people and reassure them of favourable action. The armed forces must be completely transparent in investigating allegations of violations of human rights. There should be a mechanism put in place to utilize the best use of the army in situations of internal conflict.

MAINS QUESTIONS

Q.1 Critically analyse the implementation of the Armed Forces (special powers) Act, 1958 to ensure territorial integrity and harmony in North-East India.

Q.2 How far do you agree with the view that implementation of the Armed Forces (special powers) Act, 1958 will bring peace and stability in the state of Manipur? Give justification to your view.

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