Armed Forces Special Powers Act (AFSPA) Could be Removed from Kashmir

Context: Regional parties in Jammu & Kashmir reacted cautiously to the Home Minister’s suggestion of potentially revoking AFSPA and pulling back troops post-elections.

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• The Ministry of Home Affairs has extended the enforcement of the Armed Forces (Special Powers) Act, commonly known as AFSPA, in certain regions of Nagaland and Arunachal Pradesh for an additional six months.
• AFSPA’s applicability has been renewed across the entirety of Nagaland and in 21 police stations within five other districts in Arunachal Pradesh.

Armed Forces Special Powers Act (AFSPA), 1958

• AFSPA is an act of the Parliament of India that grants special powers to the Indian Armed Forces to maintain public order in “disturbed areas”.
• The main aim of the AFSPA act is to tackle the secessionist activities in the north-eastern states.
• Origin: The Act in its original form was promulgated by the British in response to the Quit India Movement in 1942.
  • After Independence, the act was retained, first brought in as an ordinance and then notified as an Act in 1958.
• The initial aim of the AFSPA was to overcome the Naga movement. Later, it was extended to other disturbed areas in the country.
• The AFSPA Act is enforced by the Ministry of Home Affairs.

Current Status of Imposition of AFSPA

• The AFSPA is currently active in the states of Assam (some districts), Arunachal Pradesh (some districts), Manipur (entire state except for Imphal municipal area), Nagaland (some districts), and the UT of Jammu & Kashmir (entire UT).
• It was completely withdrawn in Meghalaya in 2018, Tripura in 2015 and Mizoram in the 1980s.

Powers under AFSPA

• Firing: The armed forces and the Central Armed Police Forces deployed in specified “disturbed areas” can fire and kill anyone acting by the law.
• Arrest and detention: Arrest anyone based on suspicion, without a warrant. Individuals arrested and taken into custody under this act have to be handed over to the officer in charge of the nearest police station.
• Search: Security forces can search any premises without a warrant. They can stop and search any vehicle based on suspicion.
• Protection from prosecution: Security forces are given protection from prosecution and legal suits. The Central government’s sanction is required for prosecution.
• Destruction: Destroy any arms dump, hide-outs, or fortified shelter from which armed attacks are carried out.
• Judicial review: There shall not be any judicial review of the government’s judgement on why an area is found to be disturbed.

Significance of AFSPA

• Effective Counter-Insurgency: The fighting capability of the militants in the Northeast and J&K has improved considerably. Hence, with the powers given by AFSPA, the armed forces have been able to protect the borders of the country for decades.
• Operational Hurdles: The Armed Forces are required to operate in hostile terrain, facing an unfriendly population environment exposing themselves to grave dangers.
• Legal Battles: Working under a challenging environment requires a protective law otherwise the forces get embroiled in legal battles and their effectiveness is reduced.
• Effective Law and Order: The provisions of the AFSPA are invoked only when the State Government is unable to maintain peace and tranquillity.
• Success of AFSPA so far:

• • Decline in extremist incidents: Compared to 2014, there has been a 76% reduction in extremist incidents in the year 2022.
  • Decline in fatalities: Deaths of security personnel and civilians have reduced by 90% and 97% respectively during this period.
  • Decline in areas under imposition: The improvement in the security situation has allowed Disturbed Area notification under the AFSPA to be completely withdrawn from Tripura in 2015 and Meghalaya in 2018.

Criticism of AFSPA

• Alienating people of north-east: The use of force to overcome popular movements has further alienated people of the north-east. Many families have lost their loved ones to military actions. People of the region feel alienated from India.
• Violation of human rights: India’s judicial organs and other international groups have described AFSPA as a symbol of oppression. There are widespread instances of extended custody and torture by the security forces. Innocents have suffered under the draconian law.
• Misuse by armed forces: Security forces have used the law for their benefit. There were instances of them carrying out kidnapping and extortion under the protective veil of AFSPA.
• Encroaching upon the powers of the state governments: Security personnel operating in AFSPA areas work parallel to the state security forces. Their actions sometimes encroach upon the jurisdiction of state security agencies.

Judicial pronouncements on AFSPA

• Naga People’s Movement of Human Rights vs. Union of India (1998): The Court held that the act cannot be considered as violative of the Constitution and the powers conferred under the Act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.

• • However, the court held that the army personnel are required to strictly follow minimum force under Section 4 against suspected of violating prohibitive orders.
  • Also, the act has to be reviewed every six months by the state.

• July 2016 judgement: The Supreme Court directed the armed forces and police not to use “excessive or retaliatory force” in even areas declared ‘disturbed’ where the AFSPA is applicable.
• July 2017 judgement: The Supreme Court’s judgement on alleged unlawful encounter killings in Manipur marked an important institutional step.

• • The Supreme Court overruled the objections of the Centre and the Army and ordered the Central Bureau of Investigation to set up a special investigation team to probe encounter deaths.

Recommendations by Various Committees

• B P Jeevan Reddy Committee (2005): The committee was also of the view that the act is inadequate in several provisions. The committee also said that the law must be reviewed and security forces must be brought under the purview of ordinary criminal law rather than under army law.
• Santosh Hegde committee (2013): The committee was of the view that if greater power was given then greater would be the restraint and stricter would be the mechanism to prevent its misuse or abuse.
• The 5th report of the Second Administrative Reforms Commission on Public Order has also recommended the repeal of the AFSPA.

Way Forward

• Building trust and community involvement: The armed forces should actively engage with the local population and work towards building trust and understanding.
• Ensuring justice for victims: The security forces and the government need to expedite pending cases and establish a transparent process to address allegations of human rights violations by the forces.
• Strengthening local law enforcement: State governments should focus on strengthening the local law and order machinery. If the local police can effectively handle security situations, the need for AFSPA might diminish, allowing for its withdrawal from the region.
• Case-by-case application: The government should consider implementing and lifting AFSPA on a case-by-case basis, limiting its application to specific districts facing significant disturbances rather than applying it to the entire state.
• Restoring normalcy and development: It is crucial to restore normalcy in the region for India to fulfill its Act East policy and leverage the Northeast as a gateway to Southeast Asia. Demilitarisation and addressing the underlying issues can contribute to long-term stability, allowing for the region’s socio-economic development.

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