AFSPA-
- AFSPA was enacted in 1958, confers special powers to the Indian army in disturbed areas and legitimizes any action that they may take in a disturbed area. This is basically to bring back order in disturbed areas.
- AFSPA has been deployed in areas where there have been issues with public order, and where there is a high level of extremism insurgency.
- It empowers the governor of the state or the central government to declare any part of the state-disturbed area. If in their option there exists a dangerous situation in the said area which makes it necessary to deploy armed forces in that region and to restore public order.
- The law, however, has been misinterpreted by many and there are calls for the revocation of AFSPA, whether warranted, misplaced, or totally unnecessary.
- There was an 11 year long fast by Irom Sharmila the Manipur activist demanding repeal of the AFSPA law.
- Even before that various civil society groups in Manipur launched an intense agitation after the death of Manorma Devi, a civilian who died in the custody of Assam Rifles.
- In 2005- following the death of Manorama Devi, the union home minister visited Manipur and instituted a commission under Justice Jeevan Reddy, which asked for the modification or repeal of AFSPA.
Legal measures-
Constitutional -
- Article 355- it shall be the duty of the union to protect every state against external aggression and internal disturbances and to ensure that the government of every state is carried on in accordance with the provision of the constitution.
Statutory provisions-
- Armed Force Special Powers Act, 1958-
- Section 3- power has been conferred to the central government or governor of the state, or the administrator in case of UT to declare an area as a disturbed area after notification in the official gazette.
- Section 4 (a)- gives power to any commissioned or non-commissioned officer to open fire on any person who is acting in contravention of any law or order for the time being in force in the disturbed area. Such a power extends to causing the death of such a person.
- Section 4 (c)- gives the armed force the power to arrest without warrant any person who has committed the cognizable offense or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offense.
- Section 4(d)- to enter and search without warrant any place any premise to make an arrest or to restore any person believed to be wrongfully restrained or confined.
- Section 5- armed forces shave to hand over the arrested person to the local police station with the least possible delay.
- Section 6- This section gives complete immunity and indemnity to persons acting under this law as far as those actions were committed in disturbed areas. No prosecution or any other legal proceedings can be initiated except on the previous sanction of the central government.
Need of AFSPA-
- Effective functioning- It allows armed forces to function effectively in insurgency and militancy-affected areas. In order to make the armed forces feel confident and empowered it is important to enshrine them with such powers.
- Security of 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.
- Protecting the members of the armed forces- it is crucial for protecting the armed forces who constantly face a threat to their lives at the hands of insurgents and militants, its withdrawal would result in poor morale.
- When the army is deployed in aid and assistance of civil power. It needs policing powers that need search and arrest, which has been provided through AFSPA.
- India has seen a number of insurgencies in different states- particularly Kashmir and North East. Each of these insurgencies gets the support of either Pakistan or China.
- Extraordinary powers are necessary as the armed forces face asymmetrical warfare involving ambushes, mines, and IEDs. it is essential to empower them with such powers.
Challenges of AFSPA-
- Abuse of power- immunity granted by the act has to lead to misuse of power by the armed forces like fake encounters, sexual assaults, enforced disappearances, etc.
- Threat to fundamental rights - especially when it perpetuates in a particular area for years, it leads to the suspension of fundamental rights and liberties guaranteed to the citizen by the constitution of india.
- The credibility of Indian democracy is diminished by such an abuse of power.
- Human right violation by armed personnel alienates the people.
- There are some areas in India where insurgency got bolstered because of AFSPA.
- Some people consider it ineffective. As it is said that this act has failed in its objective to achieve normalcy and restore peace.
- The areas declared by the government as disturbed areas are beyond the purview of Judicial review.
- Violation of Article 22-
- the article deals with detention and preventive detention. According to this, a person can only be detained if he/she is an enemy alien or if the person is detained under the provisions of preventive detention law.
- AFSPA despite not being a preventive detention law provides for detaining a person just on suspicion of him/her carrying out any crime and hence is a violation of Article 22.
- Committees against AFSPA-
- Justice Verma committee- dealt with offenses against women in the conflict areas and was of the view that AFSPA legitimizes impunity for sexual violence
- Santosh Hegde Committee- formed to investigate fake encounters in Manipur and described AFSPA as a symbol of oppression.
- Jeevan Reddy Committee- recommended removal of absolute immunity under AFSPA.
Way forward-
- Adherence to human rights- adherence to human rights norms and principles strengthens the counter-insurgency capabilities.
- Robust safeguards- death caused by the armed forces of any civilian or insurgent should be thoroughly enquired into, which will help in ensuring greater accountability.
- Removal of ambiguity in the law- certain terms need to be clearly defined. E.g. disturbed., which will help ensure greater clarity.
Communicating and updating the status of cases on government websites, and proactive feedback to petitioners on actions taken by the government in cases of past human rights violations.
