Insights into Editorial: Govt urges Supreme Court to review AFSPA decision restraining army
The government wants the Supreme Court to reconsider a landmark decision that restrained the army from using “excessive or retaliatory force” in India’s conflict regions and ordered investigations into hundreds of alleged extra-judicial killings in Manipur between 1979 and 2012.
- The Centre has filed a curative petition in this regard. A curative petition is the last legal recourse available after a litigant exhausts all remedies such as appeals and review pleas.
Why the Centre wants the Court to reconsider the decision?
- The centre says the court’s verdict is hampering the army’s ability to respond to insurgency-related situations and its daily operations in Kashmir and the Northeast, both regions torn by militancy.
- The Centre defended its military actions in conflict areas and said the army was not a “rogue”. Any proactive action in maintaining peace and law and order was curtailed by the verdict.
- According to the Centre, the court’s interpretation of the law was not in consonance with the ground realities that the armed forces face in Manipur, which has several secessionist groups.
- The army has to take quick decisions that cannot be dissected nor can be judicially reviewed like any other murder appeal, the government argues.
- Also, it contended that the verdict would lower the morale of the armed forces, especially personnel who spend a lifetime risking their lives to safeguard the nation’s sovereignty and integrity.
Supreme Court’s judgment:
The top court’s judgment last July ruled that despite the Armed Forces (Special Powers) Act, or AFSPA, the armed forces cannot use “excessive and retaliatory force” in Manipur. The court had said that excessive force could be used only when a soldier is defending himself in a combat with terrorists.
What is AFSPA?
The Armed Forces (Special Powers) Act was enacted in 1958 to bring under control what the government of India considered ‘disturbed’ areas.
How does one officially declare a region to be ‘disturbed’?
Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on 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.
Controversial provisions in the Act:
AFSPA is a bare law with just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act.
What are the arguments for 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.
What do detractors say?
- 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.
- 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.
- Common people see it as ‘Right to Kill’ Act. Since its inception many Human Rights organizations and civil societies have been opposing it.
Security forces should be very careful while operating in the Northeast and must not give any chance to the militants to exploit the situation. Indiscriminate arrests and harassment of people out of frustration for not being able to locate the real culprits should be avoided. All good actions of the force get nullified with one wrong action. Any person, including the supervisory staff, found guilty of violating law should be severely dealt with.
The law is not defective, but it is its implementation that has to be managed properly. The local people have to be convinced with proper planning and strategy.