Armed Forces (Special Powers) Act

Armed Forces (Special Powers) Act

Repealing AFSPA will strengthen Constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : AFSPA

Mains level : Paper 2- Repealing AFSPA

Context

The killing of 14 civilians in Nagaland in a security operation has sparked debate over the Armed Forces Special Powers Act (AFSPA).

Case for repeal of AFSPA

  • 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.
  • If the moral case for repealing AFSPA is strong, the political case points in the same direction as well.
  • 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”.

Why AFSPA is counterproductive to Army

  • Distortion of choice: First, giving wide immunity to the forces can distort the choice of strategy in counter insurgency operations.
  • Reduce professionalism: Second, wider immunity can often reduce rather than increase the professionalism of the forces.
  • Against federalism: Third, we are constantly in the vicious circle that leads to central dominance in a way that undermines both Indian federalism and operational efficiency.

Powers and limits under AFSPA

  • The Act grants extraordinarily sweeping powers to the armed forces of search, seizure, arrest, the right to shoot to kill.
  • No blanket immunity: It is true that AFSPA does not grant blanket immunity.
  • The SC guidelines: The Supreme Court laid down guidelines for the use of AFSPA in 1997; and in principle, unprofessional conduct, crimes and atrocities can still be prosecuted.
  • But this will run into two difficulties.
  • Lack of accountability mechanism: As the Jeevan Reddy Committee that advocated the repeal of AFSPA pointed out, the accountability mechanisms internal to AFSPA have not worked.
  • In 2017, the Supreme Court ordered a probe into 1,528 extra-judicial killings in Manipur.
  • At the least, this order seemed to suggest the problems with AFSPA were systemic.
  • But there have apparently been no hearings in this case for three years.
  • Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.
  • Our discourse is a rather abstract one, balancing concepts of human rights and national security.

Conclusion

It is high time that all parties come together to repeal AFSPA. It will also be in the fitness of things if all parties got together to acknowledge the trauma in Nagaland and elsewhere. This will strengthen, not weaken, the comatose Indian constitutional project.

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Armed Forces (Special Powers) Act

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : AFSPA

Mains level : Human Rights and National Security dichotomy

The death of at least 14 civilians in Nagaland as a result of the action of the Indian Army has brought back into focus the controversial Armed Forces (Special Powers) Act, 1958 [AFSPA].

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.

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.

What are the Special Powers?

The ‘special powers’ which are spelt out under Section 4 provide that:

(a) 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;

(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;

(c) Power to arrest without warrant and to use force for the purpose;

(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.

What are the Disturbed Areas?

  • A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
  • As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.

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.
  • A suitable notification would have to be made in the Official Gazette.

Presently ‘Disturbed Areas’

  • AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
  • In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.

AFSPA: Is it a License to Kill?

While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.

  • Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
  • Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.

Supreme Court’s Observations over AFSPA

  • These extra-judicial killings became the attention of the Supreme Court in 2016.
  • It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
  • The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
  • The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.

Constitutionality of AFSPA

  • Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
  1. Right to Life and Personal Liberty (Article 21) and
  2. Federal structure of the Constitution since law and order is a State subject

Recommendations to repeal AFSPA

(1) 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.
  • Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
  • It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.

(2) ARC II

  • The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
  • It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
  • However, the recommendation was considered first and then rejected.

Other issues with AFSPA

(1) 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.

(2) 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.

Caution given by the Supreme Court

A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:

  1. Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
  2. Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
  3. Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
  4. No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
  5. Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
  6. Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
  7. People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
  8. Good intelligence: It added that “good intelligence is the key to success”.
  9. Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
  10. Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.

Conclusion

  • Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.

 

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Armed Forces (Special Powers) Act

[op-ed snap] Artificial Intelligence, the law and the future

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Regulation of AI

CONTEXT

In February, the Kerala police inducted a robot for police work. The same month, Chennai got its second robot-themed restaurant, where robots not only serve as waiters but also interact with customers in English and Tamil. In Ahmedabad, in December 2018, a cardiologist performed the world’s first in-human telerobotic coronary intervention on a patient nearly 32 km away. All these examples symbolise the arrival of Artificial Intelligence (AI) in our everyday lives.

Need for regulation of AI

  • If AI is not regulated properly, it is bound to have unmanageable implications. Example – Imagine, for instance, that electricity supply suddenly stops while a robot is performing a surgery, and access to a doctor is lost?
  • All countries, including India, need to be legally prepared to face such kind of disruptive technology.

Challenges of AI

Predicting and analysing legal issues and their solutions, however, is not that simple.

Existential Questions

  • What if an AI-based driverless car gets into an accident that causes harm to humans or damages property?
  • Who should the courts hold liable for the same?
  • Can AI be thought to have knowingly or carelessly caused bodily injury to another?
  • Can robots act as a witness or as a tool for committing various crimes?
  • Scenario in other countries –In the U.S., there is a lot of discussion about the regulation of AI. Germany has come up with ethical rules for autonomous vehicles stipulating that human life should always have priority over property or animal life. China, Japan and Korea are following Germany in developing a law on self-driven cars.
  • In India, NITI Aayog released a policy paper, ‘National Strategy for Artificial Intelligence’, in June 2018, which considered the importance of AI in different sectors.
  • The Budget 2019 also proposed to launch a national programme on AI.
  • No comprehensive legislation to regulate this growing industry has been formulated in the country till date.

Legal personality of AI

  • Definition of AI – First we need a legal definition of AI.
  • Establishing legal personality – Also, given the importance of intention in India’s criminal law jurisprudence, it is essential to establish the legal personality of AI (which means AI will have a bundle of rights and obligations), and whether any sort of intention can be attributed to it.
  • Ensuring liability – To answer the question on liability, since AI is considered to be inanimate, a strict liability scheme that holds the producer or manufacturer of the product liable for harm, regardless of the fault, might be an approach to consider.
  • Privacy Rights – Since privacy is a fundamental right, certain rules to regulate the usage of data possessed by an AI entity should be framed as part of the Personal Data Protection Bill, 2018.

Conclusion

  • Reducing traffic accidents – Traffic accidents lead to about 400 deaths a day in India, 90% of which are caused by preventable human errors. Autonomous vehicles that rely on AI can reduce this significantly, through smart warnings and preventive and defensive techniques.
  • Availability of doctors – Patients sometimes die due to non-availability of specialised doctors. AI can reduce the distance between patients and doctors.
  • But as futurist Gray Scott says, “The real question is, when will we draft an artificial intelligence bill of rights? What will that consist of? And who will get to decide that?”

Armed Forces (Special Powers) Act

AFSPA partially withdrawn from Arunachal Pradesh

Note4Students

From UPSC perspective, the following things are important :

Prelims level : AFSPA

Mains level : Controversy over use of AFSPA

  • The controversial AFSPA was partially removed from Arunachal Pradesh, 32 years after it was imposed, said MHA.

Armed Forces Special Powers Act (AFSPA)

  • AFSPA enacted by Parliament in 1958, is declared in areas where armed forces are required to operate in aid to civil authorities.
  • Armed Forces (Special Powers) Acts(AFSPA) are Acts of the Parliament of India that grant special powers to the Indian Armed Forces and the state and paramilitary forces in areas classified as “disturbed areas”.
  • It gives powers to the army, state and central police forces to shoot to kill, search houses and destroy any property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry.
  • AFSPA is invoked when a case of militancy or insurgency takes place and the territorial integrity of India is at risk.
  • Security forces can “arrest a person without warrant”, who has committed or even “about to commit a cognizable offence” even based on “reasonable suspicion”.
  • It also provides security forces with legal immunity for their actions in disturbed areas.
  • While the armed forces and the government justify its need in order to combat militancy and insurgency, the Act has been associated with several human rights violations including fake encounters, rape, torture, abduction etc.

Background

  • The AFSPA – like many other controversial laws – is of a colonial origin. The AFSPA was first enacted as an ordinance in the backdrop of Quit India Movement launched by Mahatma Gandhi in 1942.
  • A day after its launch on August 8, 1942, the movement became leaderless and turned violent at many places across the country. Leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel and a host of others had been put behind the bars.
  • Shaken by the massive scale of violence across the country, the then Viceroy Linlithgow promulgated the Armed Forces (Special Powers) Ordinance, 1942.

With inputs from:

India Today

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