News Highlight
The Prime Minister’s announcement to the residents of the North East this year that the government intended to remove the dreaded Armed Forces (Special Powers) Act of 1958, or AFSPA, from the area.
Key Takeaway
- In March of this year, it announced a partial withdrawal of the AFSPA from portions of Assam, Nagaland, Arunachal Pradesh, and Manipur.
Historical Background
- The Act, in its original form, was promulgated by the British in response to the Quit India movement in 1942.
- The Armed Forces (Special Powers) Ordinance, 1942, was enacted after Viceroy Linlithgow was shaken by the degree of violence across the kingdom.
- After Independence, Prime Minister Jawaharlal Nehru decided to retain the Act, which was first brought in as an ordinance and then notified as an Act in 1958.
- AFSPA was imposed on the Northeastern states, Jammu & Kashmir and Punjab during the militancy years.
- Punjab was the first state from which it was repealed, followed by Tripura and Meghalaya.
- It remains in force in Nagaland, Manipur, Assam, J&K, and parts of Arunachal Pradesh.
Constitutional Provisions
- Article 355 confers power on the central government to protect every state from internal disturbance.
Key provisions of AFSPA
- The Armed Forces Special Powers Act (AFSPA), 1958, gives the armed forces the power to maintain public order in “disturbed areas”.
- Arrest and search:
- The armed forces can arrest any suspect without a warrant, and the armed forces can search any house without a warrant.
- Restriction on assembly:
- The armed forces have the authority to prohibit the gathering of five or more people in an area.
- The option of using firearms:
- The forces can open fire on the disturbing factors after giving due warning if they find any suspicious people.
- Structures can be destroyed:
- If the armed forces suspect that any militant or offender is hiding in any house/building, the force can destroy the site or structure.
- Legal immunity:
- Chances of misusing legal immunity by the armed forces.
Arguments in favour of AFSPA
- Effective Counter-insurgency:
- A strict law is needed to tackle the insurgent elements inside the country, particularly in the Kashmir and Northeastern regions.
- Security of the nation:
- Provisions of this Act have played a crucial role in maintaining law and order in disturbed areas. Thus, protecting the sovereignty and security of the nation.
- To counter internal forces:
- In disturbed areas, the involvement of proxy groups is also there so, in order to break that nexus, extraordinary powers are required
- Lack of effectiveness of CrPC:
- The normal Code of Criminal Procedure (CrPC) provides limited power to deal with a violent situation.
Arguments Against AFSPA
- Abuse of power:
- It has been alleged that immunity granted by the act has led the armed forces to misuse their powers and commit offences like enforced disappearances, fake encounters and sexual assault.
- It gives them the power to arrest individuals without warrants based on “reasonable suspicion” and search premises without warrants.
- Threat to justiciable fundamental rights:
- It leads to the suspension of fundamental rights and liberties guaranteed to citizens by the constitution. Thus, it weakens democracy.
- Colonial-era law:
- AFSPA is generally compared to the Rowlatt Act of the British regime because, just like the Rowlatt Act, any suspicious person can be arrested only based on doubt.
- Against international convention:
- Experts have raised the question of the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights (ICCPR).
- Alienation:
- The continuation of the AFSPA will bring down the feeling of alienation in people of the particular states, especially the northeast.
Important Cases and Judicial Roles
- Indrajit Barua vs. The State of Assam:
- The court found and declared that the state must ensure the protection of its citizens and their rights guaranteed under Article 21, which is also given to people where the AFSPA is enforced.
- July 2016 judgement:
- The Supreme Court directed the armed forces and police not to use “excessive or retaliatory force” in even areas declared “disturbed” where the AFSPA is applicable.
Way Forward
- Adherence to Human Rights:
- It needs to be emphasised that human rights compliance and operational effectiveness are not contrarian requirements. On the contrary, adherence to human rights norms and principles strengthens the counter-insurgency capability of a force.
- Robust safeguards:
- Protection for the armed forces must be accompanied by provisions that ensure responsibility and accountability within the parameters of the law. This is why robust safeguards need to be incorporated into the existing or any new law.
- Ensuring transparency:
- Greater transparency in communicating the status of existing cases, including theirs, display on the army and government’s websites.
- Independent inquiry:
- Every death caused by the armed forces in a disturbed area, be it an ordinary person or a criminal, should be thoroughly investigated.
- Major committee recommendations:
- Justice Verma Committee (2013) and the Justice Hegde Commission (2013) supported the need to address the abuses committed under the AFSPA and end the effective impunity enjoyed by security forces.
Pic Courtesy: ipleaders
Content Source: The Hindu