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EDITORIAL ANALYSIS : A draconian law that needs to disappear

 Source: The Hindu

  • Prelims: AFSPA, fundamental rights etc
  • Mains GS Paper II and III: Parliament-Structure, functioning and conduct of business, fundamental rights-violation and restriction, AFSPA etc

ARTICLE HIGHLIGHTS

  • The Prime Minister said that the Government intends withdrawing the much-dreaded Armed Forces (Special Powers) Act 1958, or AFSPA, completely from the Northeast region.
  • It was followed by its partial withdrawal from parts of Assam, Nagaland, Arunachal Pradesh and Manipur in March this year.

 

 

INSIGHTS ON THE ISSUE

Context

What does the AFSPA mean?

  • AFSPA gives armed forces the power to maintain public order in “disturbed areas”.

 

Powers given to armed forces:

  • Prohibition of gathering or opening fire: They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law.
  • Arrest without a warrant: If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
  • Arrest and handing over to police: Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

 

Disturbed area:

  • A disturbed area is one which is declared by notification under Section 3 of the AFSPA.
  • An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.
  • The Central Government, or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.

 

Genesis of the law:

  • Armed Forces (Special Powers) Ordinance 1942: It can be traced to the Armed Forces (Special Powers) Ordinance 1942 which was enacted by the British to subjugate the rebels in the country during the Quit India movement, particularly in Assam and Bengal in October 1942.
  • The law continues to be enforced in its new format as the Armed Forces (Special Powers) Act 1958.

 

Nagaland, other aberrations:

  • Shillong Peace Accord with the Naga insurgents in 1975: A peace accord was signed in Shillong in which the NNC leadership agreed to give up arms.
    • However, several leaders refused to accept the agreement, which led to the split of NNC.
  • NSCN(I-M)-1980: They resorted to large-scale violence across the States of Nagaland and Manipur after the Shillong Accord.
  • Naga Framework Agreement: Signed between the Government and the NSCN (I-M) in August 2015, after Isak Chishi Swu died in June 2016.
    • The agreement has been hanging fire as the Government has not agreed to permit a separate flag and constitution for Nagaland which the NSCN (I-M) is determined to have.

 

Issues with AFSPA:

  • Human rights violations by Army: In Nagaland, 60 years of living under the AFSPA regime has had psychological consequences, trauma and alienation of the people.
  • Issue of Fake encounters: In a writ petition filed in the Supreme Court in 2012, the families of victims of extra-judicial killings alleged 1,528 fake encounters had taken place in the state from May 1979 to May 2012.
    • Commandos of the Army’s 21 Para (Special Forces) who killed six locals recently.
  • Poor checks and balances: While the Act gives powers to security forces to open fire, this cannot be done without prior warning given to the suspect.
    • It says the armed forces must act in cooperation with the district administration and not as an independent body.
    • However, such a procedure has rarely been followed.
  • Poor investigation: Cases in Nagaland have not been investigated. In Manipur, with the Supreme Court having taken up the extra-judicial killings, the CBI has investigated 39 cases (94 killings) only.

 

Court’s stand:

  • The Supreme Court of India passed an interim order recently “staying further proceedings pursuant to FIR of the Special Investigation Team [SIT], on a petition filed by the wives of the commandos found guilty by the SIT.
  • Extra Judicial Execution Victim Families Association (EEVFAM) vs Union of India & Anr.2012): It was found that the first six cases investigated were indeed fake encounters.
    • This prompted the Court to conclude that the veracity of the allegations made by the Association was beyond suspicion.

 

Way Forward

  • Basic principles of democracy: The very basic tenets of democracy which espouse the principles “of the people, by the people and for the people” have stood negated.
  • AFSPA as draconian law: No section of society would ever allow itself to be subjected to a law that is as draconian as AFSPA, which in effect curbs the liberty and the rights of the people as enshrined in the Constitution
  • Justice B.P. Jeevan Reddy Commission: It was tasked with reviewing the provisions of AFSPA with the recommendation that AFSPA be withdrawn.
    • It suggested making amendments to the Unlawful Activities (Prevention) Act, 1967 (UAPA) to achieve the purpose of AFSPA.
  • Former Union Home Minister P. Chidambaram: He was of the firm opinion that AFSPA should be withdrawn.
    • But stiff resistance from the Defense Ministry which was headed by A.K. Antony scuttled the proposal.
  • The Union Defense Minister: He said that all three wings of the defense forces were in favour of the removal of AFSPA from the Northeast and Jammu and Kashmir, but the act remained in place “due to the situation”.
  • Periodic review of AFSPA: There needs to be a comprehensive and serious periodical review undertaken by the Center till the entire North-east is freed from the tentacles of AFSPA.
  • Fast track investigations: Investigations into the 1,528 alleged fake encounters also need to be fast tracked and taken to their logical conclusion.
  • Incarceration of the guilty: There needs to be incarceration of the guilty, thereby sending out a clear message that those who murder under the cloak of the uniform of the security forces cannot expect to go scot free if there are violations.

QUESTION FOR PRACTICE

  1. The North-Eastern region of India has been infested with insurgency for a very long time. Analyze the major reasons for the survival of armed insurgency in this region.(UPSC 2017)

(200 WORDS, 10 MARKS)