Insights into Editorial: Ending impunity under AFSPA
11 July 2016
The Supreme Court of India recently ruled that the armed forces cannot escape investigation for excesses in the course of the discharge of their duty even in “disturbed areas”. This was observed by the court while hearing petitions demanding an inquiry into 1,528 deaths in counter-insurgency operations and related incidents in Manipur. In disturbed areas, security personnel enjoy statutory protection for their use of “special powers”.
Important observations made by the court:
The provisions of the Armed Forces (Special Powers) Act and the purported immunity it offers to the use of force “even to the extent of causing death” are not invincible. Such legal protection has to yield to larger principles of human rights, and no allegation of the use of excessive or retaliatory force can be ignored without a thorough inquiry. This is a requirement both of democracy and for the preservation of the rule of law.
What is Afspa?
Afspa, enacted in 1958, gives powers to the army and state and central police forces to shoot to kill, search houses and destroy any property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry. Security forces can “arrest without warrant” a person, who has committed or even “about to commit a cognizable offence” even on “reasonable suspicion”. It also protects them from legal processes for actions taken under the act.
Which states are under Afspa?
It is in force in Assam, Jammu and Kashmir, Nagaland, Manipur (except the Imphal municipal area). In Arunachal Pradesh, only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam come under its purview. And in Meghalaya Afspa is confined to a 20-km area bordering Assam.
What are ‘disturbed’ areas?
The state or central government considers those areas as ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”
How is a region declared ‘disturbed’?
Section (3) of the Afspa empowers the governor of the state or Union territory to issue an official notification in The Gazette of India, following which the Centre has the authority to send in armed forces for civilian aid. Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.
What is state government’s role?
The state governments can suggest whether the act is required to be enforced or not. But under Section (3) of the act, their opinion can be overruled by the governor or the Centre.
Is the act uniform in nature?
Initially, it was meant only for Assam and Manipur, where there was an insurgency by Naga militants. After the reorganisation of the northeast in 1971, the creation of new states like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the Afspa to be amended, so that it could be applied to each of them. The amendments contain different sections as applicable to the situation in each state.
Why have AFSPA?
- The army is opposed to the withdrawal of Afspa. Many argue that removal of the act will lead to demoralising the armed forces and see militants motivating locals to file lawsuits against the army.
- Also, the forces are aware that they cannot afford to fail when called upon to safeguard the country’s integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilization of combat capability. This includes safeguards from legal harassment and empowerment of its officers to decide on employment of the minimum force that they consider essential.
- The absence of such a legal statute would adversely affect organizational flexibility and the utilization of the security capacity of the state. This would render the security forces incapable of fulfilling their assigned role.
- AFSPA is necessary to maintain law and order in disturbed areas, otherwise things will go haywire. The law also dissuades advancement of terrorist activities in these areas.
Arguments against AFSPA:
- Critics say the undemocratic act has failed to contain terrorism and restore normalcy in disturbed areas, as the number of armed groups has gone up after the act was established. Many even hold it responsible for the spiralling violence in areas it is in force.
- Common people see it as ‘Right to Kill’ Act. Since its inception many Human Rights organizations and civil societies have been opposing it.
- The decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. Hence, several cases of human rights violations go unnoticed.
- It is inhumane to make people live in curfew like conditions for their entire lives.
- The justice Jeevan Reddy Committee was set up in 2005 to review Afspa and make recommendations. It recommended that Afspa should be repealed and the Unlawful Activities Protection Act strengthened to fight militancy.
It is high time that concerted and sincere efforts are continuously made by the four stakeholders — civil society in Manipur, the insurgents, the State of Manipur and the Government of India to find a lasting and peaceful solution to the festering problem, with a little consideration from all quarters. It is never too late to bring peace and harmony in society. The verdict is likely to have far reaching consequences in places where security forces have been insulated by Afspa to carry out counter-insurgency operations.