Context

The Nagaland government has called for repeal of Armed forces Special Powers Act (AFSPA) in the wake of public outrage against the killings in Mon district in Nagaland.

• In June 2021, the entire state of Nagaland has been declared as a “disturbed area” for six more months under the AFSPA by the Ministry of Home Affairs.

Background

• The Act in its original form was promulgated by the British in response to the Quit India movement in 1942.
• In post independence India, AFSPA was notified as an Act in 1958.

Analysis

What is Armed forces Special Powers Act (AFSPA) 1958?

• Powers-
  • AFSPA provides for special powers for the armed forces that can be imposed by the Centre or the Governor of a state, on the state or parts of it, after it is declared “disturbed’’ under Section 3.
  • The Act defines these as areas that are “disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary’’.
  • AFSPA has been used in areas where militancy has been prevalent
• Where is it in use-
  • At present, it is in force in Mizoram, Nagaland, Manipur, Assam, J&K, and parts of Arunachal Pradesh.

Why the Act is considered controversial?

• Sweeping powers to the armed forces-
  • Power to arrest individuals without warrants, on the basis of “reasonable suspicion”, and also search premises without warrants.
  • It allows them to open fire’, even causing death, against any person in contravention to the law or carrying arms and ammunition.
  • It provides blanket immunity to security personnel involved in such operations: There can be no prosecution or legal proceedings against them without the prior approval of the Centre.
• Human rights allegations-
  • Allegations have been made against security forces of mass killings and rape.
  • It is alleged that the act has often been used to settle private scores, such as property disputes, with false tip-offs provided by local informants.
  • An RTI applicant found that between 2012 and 2016, 186 complaints of human rights violations, including death and sexual crimes, were registered against the armed forces in states with AFSPA.
  • A three-member committee set up by the Supreme Court under former judge Santosh Hegde investigated killings in Manipur in 2009 and found that all encounters were fake.
  • A report by the National Campaign Against Torture found that 114 cases of sexual violence were allegedly committed by armed forced in 11 states between 2000 and 2020.
• Centre- State issues-
  • While the Act empowers the Centre to unilaterally take a decision to impose AFSPA, this is usually done informally in consonance with the state government.
  • However, many a times central government has taken unilateral decisions in imposing or repeal of AFSPA thus impacting cooperative federalism.
• Against Fundamental rights-
  • Against Article 22-The powers of arbitrary arrest and detention goes against Article 22 which provides safeguards on the preventive and punitive detentions

Safety nets in AFSPA

• While the Act gives powers to security forces to open fire, this cannot be done without prior warning given to the suspect.
• The Act further says that after any suspects apprehended by security forces should be handed over to the local police station within 24 hours.
• It says armed forces must act in cooperation with the district administration and not as an independent body.

Why it is necessary?

• AFSPA is used as the last resort to contain militancy when all other measures fail.
• While Punjab was previously under the AFSPA during militancy years, it became the first state in 2008, from which act was removed.

Challenges in ending AFSPA

• Many a times, states themselves oppose repeal of AFSPA in light of the dangerous law and order situation. For instance, in September 21, the Assam government extended the ‘disturbed area’ status of the state by another six months under AFSPA or the Armed Forces (Special Powers) Act, 1958.
• South Asia Terrorism Portal (SATP) data found that terror-related incidents of killings in Assam fell from 138 in 2014 to seven in 2020.

Recommendations-

• Justice Jeevan Reddy Commission submitted its report in 2005, saying AFSPA had become a symbol of oppression and recommending its repeal.
• The Second Administrative Reforms Commission, headed by VeeerapaMoily, endorsed recommendations of repeal of the act.
• Sarkaria commission suggested states to develop their own system of maintaining and dealing with public order.
• National Police Commission recommended deploying the Central Reserve Police force for day to day policing instead of engaging the army and paramilitary forces.

Way forward

While it has successfully stopped uprisings and enemies from infiltrating the country, the excesses has given birth to greater anti-national uprisings. There is a need to have a strict check on the officials, amend the laws and introduce rigorous punishment for such offences. It is also important to introduce limitations for the unconditional power of the Armed forces and introduce a greater role for the Supreme Court to attain justice.