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Armed Forces Special Powers Act (AFSPA)

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Recently AFSPA has been implemented again in Nagaland. Do you know what it is and when it is imposed by the forces of the armed forces and other things related to it?

History of AFSPA-

  • The Armed Forces Privilege Act (AFSPA) was brought through an ordinance in 1958 and was legalized within three months.
  • 1958 and thereafter, Northeast India

AFSPA was implemented in 1958 in Manipur and Assam to protect against increasing insurgency, violence and foreign invasions in the Northeastern states since the Constitution came into force in India.

  • It was implemented in 1972 in entire Northeast India including Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland after some amendments. The group of these states is known as the Seven Sisters.
  • AFSPA was implemented on the 16th of February, 1997 due to militant violence in Tripura, which was lifted in May 2015 after 18 years when the situation improved.
  • Punjab and Chandigarh,1983:  In 1983, the AFSPA (Punjab and Chandigarh) Ordinance was introduced by the Central Government, which became law on 6 October, clearing the way for the deployment of the army to deal with the growing separatist violent movement in Punjab. This law was enacted on October 15, 1983, across Punjab and Chandigarh. It was withdrawn in 1997 after being in force for nearly 14 years.
  • Jammu and Kashmir,1990: Due to the process of giving special powers to the army to face violent separatism in Jammu and Kashmir, this law was introduced, which was implemented in the entire state on 5th of July,1990.
  • Even before the passage of this law, an ordinance was issued in the same year. Since then, this law is in force in Jammu and Kashmir, but the Leh-Ladakh region of the state does not come under this law.

When is an area considered disturbed?

  • Under the AFSPA, the central government deploys central security forces thereby declaring a state or region as disturbed based on the Governor’s report.
  • Due to differences or conflicts between different religious, racial, language, regional groups, castes and communities, the state or central government declares an area as disturbed area.
  • Section 3 of the AFSPA Act empowers the Governors of the State and Union Territories to issue an official notification on the Gazette of India, after which the Center becomes empowered to send armed forces to civilian areas.
  • According to the Disturbed Areas (Special Courts) Act, 1976, once declared as disturbed, the status quo must be maintained in the area for a minimum of three months.
  • State governments can suggest whether this Act should be implemented or not, but the power to take cognizance or not take their suggestion under Section 3 of this Act rests with the Governor or the Center.

 Armed forces get unlimited powers-

  • According to Section-4 of this law, the officer of the security forces can search any place on suspicion and can order to destroy the place if there is danger.
  • Under this law, army personnel also have the right to shoot at a person who breaks the law.

If that person also dies during this period, then the account will not be on the officer firing or giving such orders.

  • Armed forces can arrest any person without any warrant. They can use any kind of power during the arrest.
  • A military officer can search a person inside the house without a warrant and use force to arrest any family member, property, weapons or ammunition.
  • A vehicle can be searched if it is suspected of illegally carrying weapons by stopping it.
  • If a person is arrested, he has to be presented to the nearest police station as soon as to tell why he has been arrested.

 4 ordinances issued in 1947-

  • In 1942, the British rule issued an ordinance on August 15, 1942, to suppress the ‘Quit India Movement’, in which military forces were given privileges to take action against the agitators.
  • After partition and independence, in 1947, four separate ordinances were issued for the restoration of internal peace in Bengal, Assam, East Bengal and the then United Provinces in accordance with the provisions of the same ordinance to deal with the immediate turbulent conditions.
  • In 1948, the central government combined these four ordinances and enacted a Composite Armed Forces Privilege Act. It was created in 1942 on the basis of an ordinance created by the British rule to suppress the ‘Quit India Movement’, in which military forces were given privileges to act.
  • This law was repealed by the Government of India in 1957.

 Arguments in favor and opposition of AFSPA-

  • In favor: Proponents of this law say that armed forces are able to work effectively in terrorism affected areas and in cases of treason due to the powers enjoyed by this law. Thus this law is contributing to protecting the unity and integrity of the country.  The provisions of this law have played an important role in maintaining law and order and peace in troubled areas.  The morale of the Armed Forces has increased due to the additional powers gained through this law.
  • Opposition: Its opponents argue that the armed forces misuse the powers gained through this law. The excessive powers given to the armed forces make them insensitive and unprofessional. They have also been accused of fake encounters, sexual harassment, etc.  This law violates human rights as well as suspends the basic rights of citizens thereby weakening the roots of democracy.  Critics also argue that even after decades of implementation, it has not been able to restore law and order in disturbed areas, so it should be removed.  The committee formed in the year 2004 to review AFSPA recommended to repeal this law and considered it a symbol of repression, hatred, and exploitation.  On the one hand, it has not been able to achieve the desired goals in more than 50 years, on the other hand, it has become necessary to review it in view of the incidents of human rights violations.

 UN has given the advice to cancel AFSPA-

There have also been many criticisms of the introduction of AFSPA.  Human rights organizations have described this law as ‘heartless’.  On March 31, 2012, Christopher Hanes, the UN special advocate for extrajudicial and arbitrary conduct, had urged India that AFSPA has no place in a democratic country like India, so it should be canceled.  The report was tabled in the United Nations Human Rights Council in 2013.  Human Rights Watch has also been critical of this law, stating that it contains the substantial potential for abuse, discrimination, and suppression.

  BP  Jeevan Reddy Committee Report-

In the wake of the agitation in 2004 after the assassination of a woman named Thangjam Manorama in Manipur under the custody of Assam Rifles, the then Central government constituted a committee under the chairmanship of former Supreme Court Judge B.P.Jeevan Reddy.

  • This committee said in its recommendations in 2005 to repeal by saying the law as a ‘symbol of repression’.
  • A five-member committee headed by BPJeevan Reddy recommended in its 147-page report on 6 June 2005, ‘The Armed Forces Privilege Act, 1958 should be repealed. Whatever the reason may be, but this law has become a symbol of repression ‘.
  • The committee had said, “It is highly desirable and advisable to have the law completely abolished, but the fact should not be ignored that a very large section of the people of that region (northeast) want that the army should remain there (though the law should be lifted).
  • But the army and Ministry of Defense opposed the repeal of this law and rejected the recommendations of this committee.
  • It is worth mentioning that Irom Sharmila undertook her much-delayed indefinite fast in protest against the above incident, which ended in 2016.

Conclusion – The importance of AFSPA in terrorism affected areas cannot be denied, but at the same time it is important to note that despite being implemented in the disturbed areas for decades, it has not achieved the desired goals.  In such a situation, it can only be reviewed in view of incidents of violation of human rights.

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