Repealing of AFSPA

Published on - December 08, 2021

Concerns Regarding Internal Security

Source: The Indian Express

Context:

The author talks about Nagaland govt's call for repealing of AFSPA.

 

Editorial Insights:

  • The Nagaland Cabinet has recommended the repealing of the Armed Forces Special Powers Act (AFSPA) 1958 from the state after the incident in which security forces gunned down 13 civilians.
  • At the same, the demand for repealing AFSPA has been long-standing in the Northeastern states.
  • Most of the people/leaders feel that the killings will create mistrust in the Indian govt & derail the peace process that s currently underway between the Centre & the Naga insurgent groups.

 

About AFSPA:

  • The Armed Forces Special Powers Act was promulgated originally by the British in response to the Quit India Movement in 1942.
  • However, even after the independence, the Act was decided to be retained & was notified as an Act in 1958.
  • During the early militancy years, the AFSPA has been imposed on the Northeast states, Jammu & Kashmir & Punjab.
  • However, the act was repealed gradually from Punjab, Tripura & Meghalaya.
  • Currently, the Act remains in force in Mizoram, Nagaland, Manipur, Assam, J&K, and parts of Arunachal Pradesh.

The Acts Provisions & Powers:

  • The Act majorly has been used in areas where militancy has been prevalent.
  • Under Section 3 of the Act, it provides special powers for the armed forces that can be imposed by the Centre or the Governor of a State, on the state or parts of it, after it is declared as disturbed.
  • It defines these areas as disturbed or in a dangerous condition that necessitated the use of armed forces in aid of the civil power.
  • The Act gives sweeping powers to the armed forces.
  • It gives them powers to arrest individuals without warrants based on reasonable suspicion & also search premises without warrants.
  • It allows them to open fire, even causing death against any person in contravention to the law or carrying arms & ammunition.
  • It further provides blanket impunity to security personnel involved in such operations.
  • No prosecution or legal proceedings against them without the prior approval of the Centre.

 

Act’s Safety nets on the AFSPA power:

  • Though Act gives the power to open fire, this has to be done only after giving a prior warning to the suspect.
  • Any apprehended suspects by security forces should be handed over to the local police station within 24 hours.
  • Further, the armed forces must act in cooperation with the district administration & not as an independent body.

 

Past Attempts to repeal AFSPA:

  • Manipur activist Irom Sharmila sat for 16 years-hunger strike against AFSPA.
  • Justice Jeevan Reddy Commission in its 2005 report recommended the repealing of AFSPA on the grounds that the act had become a symbol of oppression.
  • Further, the 2nd ARC endorsed the above recommendations.
  • Recently, the current regime has rejected the findings of the Jeevan Reddy Commission.

How AFSPA is repealed?

The Act empowers the Centre to unilaterally decide to impose AFSPA through informal in consonance with the state govt.

However, the Centre can decide to repeal AFSPA after getting a recommendation from the govt.

 

Social Fallout of the AFSPA:

  • The greatest outrage against AFSPA is due to the impunity given to the armed forces.
  • No prosecution, suit, or other legal proceeding shall be instituted except with the previous sanction of the central government.
  • This impunity protects guards and also facilitates the armed forces to take unwarranted decisions at times.
  • The act fails to protect and uphold human rights; this can be witnessed in the case of alleged custodial rape and killings of the Thangjam Manorama by the Assam rifles in 2004.
  • The act reinforces a militarized approach to security which has proved to be not only inefficient but, also counterproductive in tackling security challenges.
  • The absolute authority vested in the armed forces to shoot on sight based on mere suspicion and for an offence is as basic as violating an order.
  • The power to shoot on sight violates the fundamental right to life, making the soldier on the ground the judge of the value of different lives and people the mere subjects of an officer’s discretion.
  •  The power of arbitrary arrest and detention given to the armed forces goes against the fundamental right vested in Article 22, which provides safeguards on the preventive and punitive detentions.
  • The Supreme Court has clearly stated that the person arrested has to be submitted to the court within 24hrs of the FIR. But, these conditions have been ignored.
  • Further, it is alleged that the Act has often been used to settle private scores such as property disputes with false tip-offs provided by local informants to security forces.
  • Additionally, the SC-led committee that investigated six cases of alleged fake encounters, submitted a report with the findings that all 6 were fake encounters.

 

Conclusion:

It is high time that sincere and concerted efforts are made continuously by all the stakeholders to find a long-lasting solution to the festering problem that brings peace and harmony to society.