Lecturrete Topic 3- AFSPA

Introduction

1. Armed Forces (Special Powers) Acts (AFSPA), are acts of the Parliament of India that grant special powers to the Indian Armed Forces in what each act terms "disturbed areas".

2. The government (either the state or center) 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. Governor of the state and central government has power over any part of the state which is necessary to prevent any antinational activity and insult of national values.

4. 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.

5. One such Act passed on, September 11, 1958 was applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one, to the other Seven Sister States in India's northeast (at present it is in force in Assam, Nagaland, Manipur excluding Imphal municipal council area, Changlang, Longding and Tirap districts of Arunachal Pradesh).

6. Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force.

7. The Act has often faced flak from human rights groups as it gave sweeping powers and immunity to the army in conflict-ridden areas.

8. On July 8, 2016, in a landmark ruling, the Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA, saying, in an 85 page judgment, “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both. This is the requirement of a democracy and the requirement of the preservation of the rule of law and the preservation of individual liberties.

Powers

1. After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order.

2. To arrest without a warrant anyone who has committed cognizable offenses or is reasonably suspected of having done so and may use force if needed for the arrest.

3. Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offense.

Arguments in favor of AFSPA:

1. Protect borders: With the powers given by AFSPA, the armed forces have been able to protect the borders of the country for decades.

2. Effective Counter-insurgency: A strict law is needed to tackle the insurgent elements inside the country particularly in the Kashmir and northeastern region.

3. Morale of forces: This boosts the mental well-being of the armed forces for ensuring the public order in the disturbed areas as removal of the Act would lead to militants motivating locals to file lawsuits against the army.

4. Operational requirements: Absence of such a legal statute would adversely affect organisational flexibility and the utilisation of the security capacity of the state.

Arguments against AFSPA:

1. There are some instances where AFSPA has been used inappropriately by the Armed Forces.

2. AFSPA exploits the basic human rights of the people living in disturbed areas.

3. AFSPA gives absolute power to the forces. Absolute Power corrupts absolutely. Armed Forces misuse their power and conduct fake encounters and sexually exploit the women.

4. AFSPA violates the Fundamental Rights of people living in disturbed areas. It violates Article 22 which provides safeguards for preventive and punitive detentions.

5. Violates Human Rights: There are several instances where the armed forces have found to be misusing the oppressive powers given by the Act like fake encounters, sexually exploiting the women in the disturbed areas. What’s more disturbing is the fact that the armed forces escape with impunity for their actions since legal suits cannot be filed against them as per the Act. Thus AFSPA clearly violates human rights.

Present status of AFSPA?

1. Currently, AFSPA is enforced in J&K, Assam, Nagaland, and Arunachal Pradesh and Manipur.

2. The law has been repealed where insurgencies have decreased and when governments have attained confidence in managing the region using their own police force.

3. The centre had removed AFSPA from Tripura and Meghalaya in 2015 and 2018 respectively

Comments about AFSPA:

1. 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 in the AFSPA also.

2. Not a better solution: Critics assert that there is no need to run the nation on the basis of the bullet while the issue could be addressed on the basis of the ballet (election).

3. AFSPA could not achieve its desired objectives even after 60+ years of its enforcement. One can never tolerate human rights violation committed in the name of AFSPA, so the government needs to bring a scientific and humanitarian approach towards solving the socio-economic problems of the disturbed areas rather than implementing the oppressive Act.

Dear readers, we have seen that this power can be misused up to some extent however this is required to maintain peace in some states in the current scenario, the rules need to be altered such that misuse gets minimised. Nothing is more important than the nation and its security, people of our county should have a strong belief in our forces.

Keep saying #PKMKB and Jai Hind.