Home Ministry panel on AFSPA removal from Nagaland misses its deadline

Context

A committee constituted by the Union Home Ministry in December,2021 to study the withdrawal of the Armed Forces (Special Powers) Act or AFSPA from Nagaland, slated to submit a report within 45-days

About

About the committee:

Dr Vivek Joshi, Registrar General & Census Commissioner, India, is the chairman while J Alam, chief secretary of Nagaland is a member.
The panel was formed in the wake of a growing civilian anger against the botched ambush by an elite armed forces unit that led to the killing of 13 civilians at Oting in Nagaland’s Mon district.

AFSPA:

Armed Forces Special Powers Act (AFSPA) gives armed forces the power to maintain public order in “disturbed areas” and 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 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 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. As per Section 3, 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.

What’s the origin of AFSPA?

The Act came into force in the context of increasing violence in the North eastern States decades ago, 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, It became known as the Armed Forces Special Powers Act, 1958.

Previous experts Recommendation on AFSPA

Jeevan Reddy Committee:
- A committee headed by Justice Jeevan Reddy was appointed in 2004 to review AFSPA. Though the committee found that the powers conferred under the Act are not absolute, it nevertheless concluded that the Act should be repealed.
- However, 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:
  - In case the situation so 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 mentioned the Act as a part of a section on offences against women in conflict areas.
- “Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law,” the report said, adding that “there is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.”
- This resonates with the ruling by the Supreme Court that the Army and police are not free to use excess force even under the AFSPA. However, none of these have made any real difference to the status of the AFSPA.
The Second Administrative Reforms Commission headed by then Union law minister M Veerappa Moily also recommended that AFSPA should be repealed and its essential provisions should be incorporated in the Unlawful Activities (Prevention) Act (UAPA).