Armed Forces (Special Powers) Act

AFSPA

AFSPAContext

  • While AFSPA is repealed in 28 districts in Assam, 7 districts in Nagaland and 6 in Manipur, NSF president Kegwayhun Tep said that it should be repealed in all Northeastern states .

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 warrant; enter or search premises without a warrant; and ban the possession of firearms.

AFSPA: 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.

AFSPAWhat 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.

AFSPAIssues 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.
  • Sexual 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.

Why AFSPA should be repealed?

  • Human right violations: The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging 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 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.

Mains question

Q. Do you think AFSPA is license to kill? Critically examine the utility of AFSPA today.

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