Armed Forces (Special Powers) Act

Jun, 11, 2019

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

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?”
Apr, 03, 2019

AFSPA partially withdrawn from Arunachal Pradesh

News

  • 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

Aug, 22, 2018

[op-ed snap] Who defends the defenders?

Note4students

Mains Paper 3: Internal Security | Various Security forces & agencies & their mandate

From UPSC perspective, the following things are important:

Prelims level: AFSPA

Mains level: SC verdict on ending AFSPA impunity & its impact on army functioning


Context

Plea against AFSPA amendments

  1. In an unprecedented and hitherto inconceivable step, 356 serving officers and jawans of the Indian army filed a writ petition in the Supreme Court
  2. They are seeking relief for officers and troops serving on counter-insurgency duties from “persecution and prosecution” for performing their “bona fide duties carried out in good faith”
  3. This development has several far-reaching and serious implications, not only for the military and its leadership, but also for the Indian state, which appears to have, yet again, failed in its responsibilities vis-à-vis the military as well as governance

Problem with this petition

  1. A collective action of this nature by serving personnel has legal and moral/ethical connotations for the military
  2. By jointly filing a writ petition, this 356 serving personnel could be considered as violating the Constitution, which denies armed force personnel the right to form “associations” and the Army Act, which forbids collective petitions or representations
  3. Resort to litigation, once rare and considered distasteful has, however, became common amongst military personnel mainly due to judicial activism

Why the need for this petition arose?

  1. The root of this whole problem is the deployment of the army in disturbed areas under the Armed Forces Special Powers Act (AFSPA)
  2. Counter-insurgency operations, worldwide, tend to become “dirty” and difficult because they are waged against one’s own citizens
  3. The army happens to be a “blunt instrument”, trained and motivated to destroy the nation’s enemies through extreme violence
  4. Soldiers, being human, do make mistakes and violations of human rights have occurred from time to time
  5. The SC verdict on ending impunity to soldiers under AFSPA (Read here) has resulted in criminal cases being registered against them under Criminal procedure code

What needs to be done?

  1. Most insurgencies, rooted in alienation and socio-economic factors, are aggravated by political venality and apathy
  2. Even when the army restores relative peace and normalcy, the local police and administration repeatedly fail to resume their normal functioning
  3. One option can be to withdraw AFSPA and the army and hand over CI operations to CAPFs
  4. Another one can be to withdraw AFSPA, deploy the army and ensure that each patrol, ambush and covert operation has an embedded magistrate to authorise opening/returning fire

Way Forward

  1. Soldiers are equal citizens with equal rights and not sacrificial lambs for those with a confused national perspective
  2. The actions of our soldiers, when acting on behalf of the state, must be dealt with under the Army Act and not the CrPC.
  3. The state must also react with urgency to insulate its soldiers from over-zealous NGOs and excessive judicial activism
Apr, 24, 2018

What is AFSPA, and where is it in force?

Note4students

Mains Paper 3: Internal Security | Security challenges & their management in border areas

From UPSC perspective, the following things are important:

Prelims level: AFSPA

Mains level: Debate related to AFSPA provisions and other issues related to it


Context

AFSPA partially revoked

  1. The Centre has announced that it revoked the Armed Forces (Special Powers) Act (AFSPA) from Meghalaya from April 1

What does the AFSPA mean?

  1. The Armed Forces (Special Powers) Act, 1958 gives armed forces the power to maintain public order in “disturbed areas”
  2. They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving a due warning if they feel a person is in contravention of the law
  3. If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search a premises without a warrant; and ban the possession of firearms
  4. As per Section 3 of the AFSPA, it can be invoked in places “where the use of armed forces in aid of the civil power is necessary”

What is a “disturbed area” and who has the power to declare it?

  1. A disturbed area is one which is declared by notification under Section 3 of the AFSPA
  2. An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities
  3. 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

Which States are under this Act?

  1. It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh
  2. Jammu and Kashmir too has a similar Act
Jan, 27, 2018

Armed forces set to be curtailed in Northeast

Note4students

Mains Paper 3: Internal Security | Security challenges & their management in border areas

From UPSC perspective, the following things are important:

Prelims level: AFSPA, Unlawful Activities (Prevention) Act, 1967

Mains level: Security situation in Northeast


News

Security audit in the Northeast

  1. The Home Ministry will conduct a “security audit” in the Northeast
  2. After this, it might chalk out a plan to reduce the number of Central armed police force personnel deployed there

Insurgency at a record low

  1. Insurgency-related incidents in the Northeast had come down to 308 in 2017, the lowest since 1997
  2. This is nearly 85% reduction

Reddy committee report being considered

  1. The Central government had appointed a five-member committee headed by Justice B.P. Jeevan Reddy in November 2004 to review AFSPA
  2. Its report is being considered by government
  3. Report had said that besides repealing the Act, the Unlawful Activities (Prevention) Act, 1967 should be modified to clearly specify the powers of the armed forces and the Central forces

Back2Basics

Armed Forces (Special Powers) Act

  1. The Armed Forces (Special Powers) Act was enacted in 1958 to bring under control what the government of India considered ‘disturbed’ areas
  2. The government (either the state or centre) considers those areas to be ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”
  3. Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976
  4. As per Section 3 of the Armed Forces (Special Powers) Act, it can be invoked in places “where the use of armed forces in aid of the civil power is necessary.”
  5. The AFSPA gives power to the Army and the Central forces deployed in “disturbed areas” to kill anyone acting in contravention of law, arrest and search premises without a warrant and provide cover to forces from prosecution and law suits without the Centre’s sanction
  6. The state governments can suggest whether the Act is required to be enforced or not
  7. But under Section (3) of the Act, their opinion can still be overruled by the governor or the centre
Jan, 02, 2018

Nagaland declared as ‘disturbed area’ for 6 more months

Image source

Note4students

Mains Paper 3: Internal Security | Security challenges & their management in border areas

From UPSC perspective, the following things are important:

Prelims level:  AFSPA, Disturbed Areas (Special Courts) Act, 1976, Naga framework agreement

Mains level: Insurgency in northeast India and ways to tackle it


News

Action necessary

  1. The entire Nagaland has been declared as “disturbed area” for six more months, till June- end, under the controversial AFSPA
  2. Decision to continue the declaration of Nagaland as “disturbed area” has been taken as killings, loot and extortion have been going in various parts of the state
  3. According to The Disturbed Areas (Special Courts) Act, 1976 once declared ‘disturbed’, the area has to maintain status quo for a minimum of 3 months

Armed Forces (Special Powers) Act (AFSPA)

  1. The controversial AFSPA empowers security forces to conduct operations anywhere and arrest anyone without any prior notice
  2. There have been demands from various organizations in the Northeast as well as in Jammu and Kashmir for repealing the controversial Armed Forces (Special Powers) Act (AFSPA), which, they say, gives “sweeping powers” to security forces

Framework agreement in Nagaland

  1. The AFSPA has been in force in Nagaland for several decades
  2. It has not been withdrawn even after a framework agreement was signed on August 3, 2015, by Naga insurgent group NSCN-IM with government interlocutor
  3. The framework agreement came after over 80 rounds of negotiations spanning 18 years
Sep, 02, 2017

Assam issues AFSPA order for State

Note4students

Mains Paper 3: Internal Security | Role of external state and non-state actors in creating challenges to internal security.

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Imposition of AFSPA is a crucial and much debated issue. Any news related to its imposition is important.


News

Orders for the Armed Forces Special Powers Act (AFSPA) 

  1. For the first time since 1990, the Assam government issued orders declaring the State a “disturbed area”
  2. And imposed the Armed Forces Special Powers Act (AFSPA) for six months
  3. Such orders were earlier issued by the Union Home Ministry
  4. But recently, Home Ministry gave up its power and asked the State government to decide on continuing the enforcement of the AFSPA in the State

Some features of the act

  1. Under Section 3 of the Act, it can be invoked in places “where the use of armed forces in aid of the civil power is necessary”
  2. The AFSPA gives powers to the Army and Central forces deployed in “disturbed areas” to
    (1)  kill anyone acting in contravention of the law
    (2) arrest and search any premises without a warrant
    (3) provide cover to the Armed Forces from prosecution and legal suits without the Centre’s sanction
Jul, 25, 2016

Shall we revoke AFSPA on trial?

  1. J&K’s Chief Minister Mehbooba Mufti asked the Centre to revoke the Armed Forces (Special Powers) Act on trial basis
  2. An experiment beginning with 25 to 50 police stations could be set in motion and its effectiveness could be measured in time
  3. Think about this request vis-a-vis the recent news on revaluation of threat levels across the maoist infested districts by the govt.
Jul, 09, 2016

SC ends impunity for armed forces under AFSPA

  1. News: The Supreme Court ordered that every death caused by the armed forces in a disturbed area should be thoroughly enquired into
  2. Aim: To address any allegation of use of excessive force in sensitive areas beyond the the armed forces’ normal duty, thereby upholding civilian and human rights
  3. Applicable to anyone whether the victim is a dreaded criminal or a militant or a terrorist or an insurgent
  4. Background: Security personnel under the Armed Forces (Special Powers) Act of 1958 (AFSPA) enjoyed immunity against criminal action for acts committed in disturbed areas
  5. The judgment came on a plea by families in Manipur for a probe by a Special Investigation Team into cases of alleged fake encounters involving the Army and the police
  6. Quick fact: AFSPA is operational in Assam, Arunachal Pradesh, Nagaland, Manipur, Mizoram, Meghalaya, Jammu & Kashmir (Withdrawn from Tripura in 2015)
Nov, 04, 2015

Impose AFSPA in Garo Hills, says High Court

  1. Meghalaya HC has asked the Centre to consider enforcing AFSPA in the militancy-hit Garo Hills region in the State.
  2. It wants deployment of armed and para-military forces to control the situation in the aid of civil and police authorities.
  3. This comes at a time when there is a growing demand to revoke this draconian law from several States.
Jul, 06, 2015

[cd explains] AFSPA - How does it work exactly?

Jul, 05, 2015

[Discuss] Let's debate the effectiveness of AFSPA

What has it achieved in “disturbed areas,” where it is in effect? Should it remain in force, be revoked, or at least revised?


 

  1. On March 27, the Indian government declared as “disturbed areas” 12 districts in Arunachal Pradesh bordering Assam and imposed the AFSPA on them, only to revoke it in early May. But what really constitutes a “disturbed area”?
  2. AFSPA’s subsequent revocation here and in Tripura raised hopes of its withdrawal from other “disturbed areas” too. Those hopes were quickly dashed following the ambush in Manipur.

    The Genesis – 

  3. Drawing from a draconian ordinance the British colonial rulers used during the Quit India Movement of 1942, the Indian Parliament enacted AFSPA in September 1958 in the context of the nascent Naga insurgency.
  4. Besides conferring extensive powers on the armed forces, AFSPA provides them immunity from prosecution.
  5. No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central government against any person.

    As Sanjoy Hazarika, a member of the Justice Jeevan Reddy Committee, wrote: “how many more deaths, how many more naked protests, how many more hunger strikes, how many more committees, how many more editorials and articles and broadcasts before AFSPA goes?”

 

Jul, 02, 2015

With AFSPA, India has failed statute: Amnesty International

  1. Amnesty International accused India of not addressing human rights violations committed by security force personnel in the name of national security
  2. What do they say? India has not only failed to uphold its international obligations but has also failed its own Constitution.
  3. The report is titled “Denied: Failures in accountability for human rights violations by security force personnel in Jammu & Kashmir”.
May, 28, 2015

Tripura withdraws AFSPA, after 18 years

  1. Reason for withdrawal – Insurgency in the state has diminished, security establishments agreed for repeal.
  2. The Act has been in force in the state since 1997.
  3. Tribal parties had been demanding the repeal of the Act, arguing that it aims at suppressing 33% tribal population.
  4. Contention – The Act confers sweeping powers on the armed forces.
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