GS Paper: GS3-24. Various Security Forces and Agencies and their Mandate.

 

Central idea: Home Minister recently announced the decision to reduce the Disturbed Areas under the Armed Forces (Special Powers) Act (AFSPA) in Nagaland, Assam, and Manipur.

Reason for the decision

• Improved security: The decision was taken due to a significant improvement in the security situation in Northeast India.
• Decrease in Violence: The prevalence of insurgencies in almost all states in the Northeast may arguably have necessitated the imposition of AFSPA in the past. Statistics suggest that violence in the region has been on the decline. The MHA cited a reduction of 76% in extremist incidents, 90% decrease in deaths of security personnel and a 97% decrease in civilian deaths since 2014.
• Negotiations with Rebel Groups: The government has negotiated peace with rebel groups in the region, including NSCN-IM, Ulfa, Bodo, and Dimasa groups, with some success.
• Peace accords: The Mizo rebels, who signed a peace accord in 1986, joined electoral politics and won office. The Tripura government successfully negotiated with the insurgency and got AFSPA removed in 2015. The government must continue to engage with rebel groups to maintain peace in the region.

What is Armed Forces (Special Powers) Act, 1958?

• Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
• AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
• The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.

A Backgrounder

• The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
• It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
• It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.

What are the Special Powers?

• Power to use force: including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
• Power to destroy structures: used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
• Power to arrest: without warrant and to use force for the purpose;
• Power to enter and search premises: without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.

Who can declare/notify such areas?

• 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.

Issues with AFSPA

• Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
• Misconduct by Armed Forces: The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012. It observed that- in conflict zones, legal protection for women was neglected.
• Autocracy: The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.

Recommendations to repeal AFSPA

• Justice B.P. Jeevan Reddy Commission: The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
• ARC II: The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.

Voices for repeal

• Human rights violations: The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging the dark history of our conduct in Nagaland.
• Need for ensuring individual dignity: The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of the individual dignity of the Indian Constitution are not extended.
• Not state of exception: We often describe AFSPA in terms of a “state of exception”. But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”.
• Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.

Conclusion

• To bring in lasting peace in the North East, the government needs to avoid the trap of watered-down peace accords.
• While the move to withdraw AFSPA is welcome, it needs to be gradually erased.
• For that, changes in the ground situation would be crucial. Mere smoke signals or drum-beating can never do the job.

 

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Central idea

• India is the world’s largest arms importer for the five-year period during 2018-22, according to Stockholm International Peace Research Institute (SIPRI).
• However, India’s arms imports have dropped by 11% between 2013–17 and 2018–22.

Top Arms Suppliers to India

• Russia was the largest supplier of arms to India in both 2013–17 and 2018–22.
• France emerged as the second largest supplier from 2018-22, and its share of total Indian arms imports increased significantly.
• Among the top 10 arms exporters for the period 2018-22, India was the biggest arms export market to three countries — Russia, France and Israel and the second-largest export market to South Korea.
• India was also the third largest market for South Africa, which was ranked 21 in the list of arms exporters.

Arms import by Country

• For the same period, India remained the largest arms importer followed by Saudi Arabia.
• Russia accounted for 45% of India’s imports followed by France (29%) and the US (11%).
• India was the third largest arms supplier to Myanmar after Russia and China, accounting for 14% of its imports.

Reasons for India’s Arms Imports

• Complexities with neighborhood: “India’s tensions with Pakistan and China largely drive its demand for arms imports. With an 11% share of total global arms imports, India was the world’s biggest importer of major arms in 2018–22,” says SIPRI.
• Procurement bottlenecks: India’s slow and complex arms procurement process, efforts to diversify its arms suppliers, and attempts to replace imports with major arms that are designed and produced domestically have contributed to the decrease in arms imports.

Russia’s position as India’s Main Arms Supplier

• India diversifying its imports: Russia’s position as India’s main arms supplier is under pressure due to strong competition from other supplier states.
• Self-arming for ongoing war: This is due to increased Indian arms production, and constraints on Russia’s arms exports related to its invasion of Ukraine.

Global Arms Transfers

• Arms imports by Pakistan increased by 14% between 2013–17 and 2018–22 and accounted for 3.7% of the global total with China supplying 77% of Pakistan’s arms imports in 2018–22.
• While the global level of international arms transfers decreased by 5.1%, imports of major arms by European states increased by 47% between 2013–17 and 2018–22 in the backdrop of the war in Ukraine.
• The U.S. share of global arms exports increased from 33% to 40% while Russia’s fell from 22% to 16%.

What we can conclude from this?

• Security concerns: India has long-standing tensions with neighboring countries such as Pakistan and China, which have led to security concerns and a perceived need for a strong military.
• Slow and complex procurement process: India’s procurement process for arms is often slow and complex, leading to delays in acquiring weapons and equipment. This has resulted in India relying on imports to meet its defense needs.
• Lack of domestic production: India’s domestic arms production capabilities are still limited, which makes it difficult for the country to produce high-tech weapons and equipment. This has forced India to rely on imports to meet its defense requirements.
• Diversification of suppliers: While Russia has been the traditional supplier of arms to India, in recent years India has been diversifying its sources of weapons and equipment to countries such as France, Israel, and the United States.

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The Supreme Court has sharply reacted over tenure extensions granted to Enforcement Directorate Director by the government to subvert ongoing investigations against their leaders.

What is Enforcement Directorate (ED)?

• ED was formed in 1957 to look into cases of foreign exchange-related violations, a civil provision.
• It goes back to May 1, 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs.
• Now, the ED falls under the finance ministry’s Department of Revenue.
• But in 2002, after the introduction of the PMLA, it started taking up cases of financial fraud and money laundering, which were of criminal nature.
• It was then tasked for handling Exchange Control Laws violations under the Foreign Exchange Regulation Act (FERA).
• Today, it is a multi-dimensional organisation investigating economic offences under the:

1. Prevention of Money Laundering Act (PMLA)
2. Fugitive Economic Offenders Act
3. Foreign Exchange Management Act
4. Foreign Exchange Regulation Act (FERA)

Its establishment

• When proceeds of crime (property/money) are generated, the best way to save that money is by parking it somewhere, so one is not answerable to anyone in the country.
• Therefore, there was a need to control and prevent the laundering of money.
• The PMLA was brought in for this exact reason in 2002, but was enacted only in 2005.
• The objective was to prevent parking of the money outside India and to trace out the layering and the trail of money.
• So as per the Act, the ED got its power to investigate under Sections 48 (authorities under act) and 49 (appointment and powers of authorities and other officers).

At what stage does the ED step in when a crime is committed?

• Whenever any offence is registered by a local police station, which has generated proceeds of crime over and above ₹1 crore, the investigating police officer forwards the details to the ED.
• Alternately, if the offence comes under the knowledge of the Central agency, they can then call for the First Information Report (FIR) or the chargesheet if it has been filed directly by police officials.
• This will be done to find out if any laundering has taken place.

What differentiates the probe between the local police and officers of the ED?

Case study:

• If a theft has been committed in a nationalised bank, the local police station will first investigate the crime.
• If it is learnt that the founder of the bank took all the money and kept it in his house, without being spent or used, then the crime is only theft and the ED won’t interfere because the amount has already been seized.
• But if the amount which has been stolen is used after four years to purchase some properties, then the ill-gotten money is brought back in the market.
• Or if the money is given to someone else to buy properties in different parts of the country, then there is ‘laundering’ of money.
• Hence the ED will need to step in and look into the layering and attachment of properties to recover the money.
• If jewellery costing ₹1 crore is stolen, police officers will investigate the theft. The ED, however, will attach assets of the accused to recover the amount of ₹1 crore.

Roles and functions of the ED

• Summon, Search and seizure: The ED carries out search (property) and seizure (money/documents) after it has decided that the money has been laundered, under Section 16 (power of survey) and Section 17 (search and seizure) of the PMLA.
• Arrest and detentions: On the basis of that, the authorities will decide if an arrest is needed as per Section 19 (power of arrest).
• Attachment of property: Under Section 50, the ED can also directly carry out search and seizure without calling the person for questioning. It is not necessary to summon the person first and then start with the search and seizure.
• Filing of chargesheet: If the person is arrested, the ED gets 60 days to file the prosecution complaint (chargesheet) as the punishment under PMLA doesn’t go beyond seven years.

Centrestage of our debate: Over-reach by Investigation Agencies

Why is ED comes to pictures frequently?

Ans. Money laundering

• Money laundering is the process of making significant amounts of money obtained through criminal activities, such as drug trafficking or terrorist funding, appear to have come from a legitimate source.
• As a result, it provides an incentive for money launderers to “legitimize” their ill-gotten gains through money laundering.
• The money generated is referred to as ‘dirty money,’ and money laundering is the act of converting ‘dirty money’ into ‘legitimate’ money.

Why ED mostly grips Politicians?

• Exposing rampant corruption: It is not always ironic to say that most politicians are never corrupt. We have a very inglorious past of political corruption.
• Selective witch-hunt: The ED has often been attacked for initiating investigations, raiding and questioning leaders of opposition parties, be it under the current regime or under past governments.

Issues with PMLA

• Misuse of central agencies: PMLA is being pulled into the investigation of even ordinary crimes by the Enforcement Directorate.
• Seizing of assets: Assets of genuine victims have been attached. The ED could just walk into anybody’s house.
• Politically motivated raids: In all this, the fundamental purpose of PMLA to investigate the conversion of “illegitimate money into legitimate money” was lost.
• Opacity of charges: Petitioners pointed out that even the Enforcement Case Information Report (ECIR) – an equivalent of the FIR – is considered an “internal document” and not given to the accused.
• Vagueness over evidence: The accused is called upon to make statements that are treated as admissible in evidence.
• Harassment: The ED begins to summon accused persons and seeks details of all their financial transactions and of their family members.
• Against individual liberty: The initiation of an investigation by the ED has consequences that have the potential of curtailing the liberty of an individual.

Allegations against ED

• Huge discretions: The ED is the only Central agency in the country that does not require permission from the government to summon or prosecute politicians or government functionaries for committing economic offences like money laundering.
• Used for petty crimes: PMLA is pulled into the investigation of even “ordinary” crimes and assets of genuine victims have been attached.
• Actual purpose denigrated: PMLA was a comprehensive penal statute to counter the threat of money laundering, specifically stemming from the trade in narcotics.
• Violations of Rights: PMLA was enacted in response to India’s global commitment to combat the menace of money laundering. Instead, rights have been “cribbed, cabined and confined”.
• Functional opacity: There is also a lack of clarity about ED’s selection of cases to investigate. We often see ED raiding houses of opposition parties suddenly.
• Poor rate of conviction: We have hardly read the conclusion of cases by ED. Meantime media-trial tears off the accused person’s credibility which is the most desired intent.
• Under-trials and slower prosecution: ED has been focusing on keeping the accused in custody rather than actually proving the charges against them.

Challenges to ED

• ED being dragged to court: The petitions against the ED had the effect of slowing down the investigations, as officers have to defend themselves in court.
• Foul crying politicians: There are attempts to cover up unexplained, high-value transactions that fall within the PMLA’s ambit
• Investigation of foreign transactions: Getting information on accounts and money stashed abroad to establish a trail is the biggest challenge they face.

Way forward

• The fight against corruption is intimately linked with the reform of the investigations.
• Therefore the adjudicating authorities must work in cooperation and ensure the highest standards of transparency and fairness.
• ED has been walking a tightrope to safeguard its integrity by speeding up investigations and court procedures.
• The need of the hour could be systemic fixes—and not shrill calls to throw the baby out with the bathwater.
• It is unlikely that corruption can be substantially reduced without modifying the way government agencies operate.

 

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