Armed Forces (Special Powers) Act (AFSPA)

Armed Forces (Special Powers) Act (AFSPA)

News: Recently Ministry of Home Affairs (MHA) extended Armed Forces (Special Powers) Act, 1958 (AFSPA) in Nagaland and Arunachal Pradesh. However, the 
Assam government has also extended AFSPA 1958 in four districts for another six months.

History of AFSPA:
• The Armed Forces Special Powers Ordinance of 1942 was enacted by Viceroy Linlithgow to quell the Quit India Movement on August 15, 1942.
• Post-Partition in 1947, India introduced four ordinances to address internal security: Bengal Disturbed Areas, Assam Disturbed Areas, East Bengal Disturbed Areas, and United Provinces Disturbed Areas.
• Article 355 of the Indian Constitution empowers the Central Government to safeguard states from internal disturbances.
• The Armed Forces (Assam and Manipur) Special Powers Act, 1958:
- Originated due to the insurgency led by the Naga National Councils boycott of the 1952 general election and subsequent escalation.
- Initially enacted as an ordinance by President Dr. Rajendra Prasad on 22 May 1958, later replaced by an act on 11 September 1958.
- Initially confined to Assam and Manipur, the acts territorial scope expanded to cover the entire Northeast region, leading to its renaming as the Armed Forces (Special Powers) Act, 1958 (AFSPA).
• The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983:
- Introduced by the central government in October 1983 during the turbulent period of militancy in Punjab.
- Enacted to grant special powers to the armed forces to operate in Punjab and the union territory of Chandigarh.
- The act was repealed in 1997, starting with its withdrawal from Punjab, marking the end of its roughly 14-year enforcement period.
• The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990:
- Enacted in response to the escalating security instability in Jammu and Kashmir during the late 1980s and early 1990s.
- Aimed to provide the armed forces with additional powers to address the persistent security challenges in the region.
- Remains in force in Jammu and Kashmir to tackle ongoing security threats and insurgent activities.
Supreme Court Verdict, 1998:
- In the landmark case of Naga People’s Movement of Human Rights vs. Union of India, the Supreme Court upheld the validity of AFSPA.
- The five-judge bench ruled that the powers conferred under sections 4 and 5 of the act were not arbitrary or unreasonable, concluding that AFSPA did not violate the constitutional provisions.
The Jeevan Reddy Committee:
• Established on November 19, 2004, by the Central government, chaired by Justice BP Jeevan Reddy, to assess the provisions of the Armed Forces (Special Powers) Act (AFSPA) in Northeastern states.
• The committee recommended a complete repeal of the law, denouncing it as a symbol of hate, oppression, and excessive force.
• In its 2005 report, the committee proposed the following:
- Repeal AFSPA and integrate appropriate provisions into the Unlawful Activities (Prevention) Act, 1967.
- Amend the Unlawful Activities Act to delineate the powers of armed forces and paramilitary forces.
- Establish grievance cells in each district with armed forces deployment to address grievances effectively. 

Recommendations from the 5th Report of the Second Administrative Reforms Commission:
• The report endorsed the repeal of the Armed Forces (Special Powers) Act (AFSPA) in its assessment of public order.
• It advocated for the removal of AFSPA, aligning with calls for its abolition due to concerns about its impact on civilian rights.

Supreme Court Ruling in 2016:
• The Supreme Court, addressing internal security issues, ruled that armed forces cannot evade investigation for any excesses committed during their duties, even in disturbed areas.
• The ruling emphasized that the legal protection provided by AFSPA cannot be absolute, underscoring the need for accountability.

Repeal and Restriction Measures:
• Tripura witnessed the repeal of AFSPA in 2015, signaling a move towards discontinuation of the act.
• Meghalaya was removed from the list of AFSPA-affected areas by the central government, marking progress in addressing security concerns.
• In 2018, the use of AFSPA in Arunachal Pradesh was limited, showcasing efforts to curtail its application and ensure proportional response to security challenges.

Why AFSPA being opposed?
• The Armed Forces (Special Powers) Act (AFSPA) has been criticized as draconian for granting extensive authority to the armed forces. It permits them to open fire, potentially resulting in fatalities, against individuals violating the law or carrying weapons.
• The act authorizes arrests without warrants based on reasonable suspicion and allows for warrantless searches of premises.
• Furthermore, AFSPA grants blanket immunity to security personnel engaged in such operations. They cannot be prosecuted or subjected to legal proceedings without prior approval from the central government.

Points in favor of the AFSPA:
• The application of the Armed Forces (Special Powers) Act (AFSPA) is triggered when ordinary laws are deemed insufficient to address the extraordinary threat posed by insurgents spreading terror.
• Insurgent movements in India often serve as proxy wars instigated by external actors. This necessitates the deployment of armed forces in counter-insurgency operations, with enhanced legal protection provided by AFSPA.
• The military has consistently emphasized its reliance on AFSPA, stating that special powers are indispensable for combating both domestic and foreign terrorists effectively.

Way Forward:
• The current state of the Armed Forces (Special Powers) Act (AFSPA) is no longer tenable due to numerous human rights violations that have occurred over the years. It has become a symbol of oppression in the areas where it is enforced. Therefore, the government must address the grievances of affected communities and reassure them of favorable action.
• The military engages in high-intensity conflicts, underscoring the importance of garnering support from local populations to combat terrorism and insurgency effectively. Establishing trust with locals is essential for securing their cooperation in countering insurgency activities.
• Collaboration between state bureaucracy, the military, and grassroots civil society organizations is crucial in implementing developmental initiatives. This approach can help transform AFSPA into a positive force for societal progress in affected regions.
• The government should adopt a nuanced approach to AFSPA, considering imposition and lifting on a case-by-case basis and restricting its application to specific troubled districts rather than entire states. Adherence to guidelines set by the Supreme Court, the Jeevan Reddy Commission, and the National Human Rights Commission (NHRC) is imperative for ensuring accountability and upholding human rights standards.