Armed Forces (Special Powers) Act
Centre reimposes AFSPA in 6 ‘volatile’ regions
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Armed Forces (Special Powers) Act;
Mains level: Internal Security; Security Issues in Northeast India; AFSPA;
Why in the News?
Eighteen months after ethnic violence began in Manipur, the Central government has reinstated the Disturbed Areas status under the Armed Forces (Special Powers) Act (AFSPA) in six police station jurisdictions, including the affected area of Jiribam.
Present map
What is the historical background?
|
What is the significance of the Armed Forces (Special Powers) Act, of 1958?
- Extraordinary Powers: AFSPA grants armed forces significant powers, including the authority to arrest without a warrant, search premises, and use lethal force if deemed necessary. These powers are intended to facilitate military operations in volatile regions.
- Legal Immunity: The Act provides immunity from prosecution for armed forces personnel acting under its provisions unless sanctioned by the central government. This aspect has led to widespread criticism and allegations of human rights abuses.
- Controversy and Criticism: AFSPA has been a subject of intense debate due to its implications for civil liberties. Critics argue that it leads to extrajudicial killings and other human rights violations. High-profile incidents have fueled calls for its repeal or reform, with activists like Irom Sharmila famously protesting against it for years.
Which are the States where AFSPA is presently in effect?The Armed Forces (Special Powers) Act (AFSPA) is currently in effect in several states across India, primarily in regions experiencing ongoing insurgency or civil unrest. These are Jammu and Kashmir, Nagaland (eight districts), Arunachal Pradesh (three districts), and parts of Assam, Manipur (excluding the Imphal municipal area). |
What is the present controversy around the provisions of AFSPA?
- Human Rights Violations: AFSPA has been associated with numerous human rights abuses, including extrajudicial killings, torture, and enforced disappearances.
- Reports indicate that over 1,500 extrajudicial killings occurred in Manipur alone between 2000 and 2012, often involving security forces acting with impunity due to the protections afforded by the Act.
- Impunity for Security Forces: This Act provides armed forces personnel with legal immunity for actions taken under its provisions, requiring prior approval from the central government for prosecution.
- This has led to a culture of impunity (exemption from punishment) where security personnel are rarely held accountable for their actions, exacerbating public distrust and resentment towards the military.
- Excessive Use of Force: AFSPA grants security forces broad powers to use lethal force against individuals deemed to be acting against the law.
- Critics argue that this provision leads to excessive and disproportionate responses, often resulting in civilian casualties and further violence in already tense regions.
- Lack of Accountability and Oversight: The absence of effective mechanisms for accountability regarding human rights violations under AFSPA has been a significant concern.
- Despite recommendations from various committees for reforms or repeal of the Act, the government has largely ignored these calls, perpetuating a cycle of abuse without adequate oversight.
- Political and Social Backlash: The ongoing application of AFSPA has sparked significant protests and activism, particularly in northeastern states like Manipur and Nagaland.
- Activists, including prominent figures like Irom Sharmila, have campaigned for its repeal, arguing that it fosters alienation among local populations and undermines democratic values in India.
Way forward:
- Balancing Security with Rights: Reform AFSPA to incorporate provisions ensuring accountability and oversight, such as independent inquiries into alleged violations and regular reviews of its application, while retaining necessary powers to address security challenges.
- Strengthening Local Governance: Enhance the capacity of state police and local administrations through training and resources, enabling them to manage law and order effectively, thereby reducing reliance on AFSPA over time.
Mains PYQ:
Q Human rights activists constantly highlight the fact that the Armed Forces (Special Powers) Act, 1958 (AFSPA) is a draconian act leading to cases of human rights abuses by security forces. What sections of AFSPA are opposed by the activists? Critically evaluate the requirement regarding the view held by the Apex Court. (UPSC IAS/2015)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
AFSPA Extension in Manipur: A Delicate Balancing Act
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Not Much
Central Idea
- The Manipur government has announced the extension of the Armed Forces (Special Powers) Act (AFSPA) for another 6 months across the entire state.
- However, it excludes 19 police stations in seven districts of the Imphal Valley.
Why such move?
- Gradual Withdrawal: Since 2022, AFSPA has been progressively withdrawn from the valley districts, primarily inhabited by the Meitei community.
- Resurgence of Insurgent Groups: There has been a resurgence of insurgent groups, largely operating from Myanmar, advocating for Manipur’s secession from India.
- Ethnic Violence: Ethnic violence between the Meitei and tribal Kuki communities has claimed at least 175 lives since May 3, making it the deadliest conflict in Manipur since 1999.
AFSPA History in Manipur
- Decades of AFSPA: AFSPA has been applicable in Manipur since 1981, impacting both the valley and hill districts.
- Gradual Withdrawal: The Act’s provisions have been gradually withdrawn from the valley districts over the years, signifying evolving security dynamics.
What is Armed Forces (Special Powers) Act, 1958?
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
What are the Special Powers?
- Power to use force: including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
- Power to destroy structures: used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
- Power to arrest: without warrant and to use force for the purpose;
- Power to enter and search premises: without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
Who can declare/notify such areas?
- 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.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
AFSPA likely to end from Assam
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Law and order in NE
Central Idea: Assam CM has stated that the Armed Forces Special Powers Act (AFSPA) is likely to be completely lifted from the state by the end of the year due to a significant improvement in the law and order situation.
What is Armed Forces (Special Powers) Act, 1958?
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
What are the Special Powers?
- Power to use force: including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
- Power to destroy structures: used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
- Power to arrest: without warrant and to use force for the purpose;
- Power to enter and search premises: without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
Who can declare/notify such areas?
- 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.
Issues with AFSPA
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Misconduct by Armed Forces: The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012. It observed that- in conflict zones, legal protection for women was neglected.
- Autocracy: The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Recommendations to repeal AFSPA
- Justice B.P. Jeevan Reddy Commission: The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- ARC II: The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
Voices for repeal
- Human rights violations: The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging the dark history of our conduct in Nagaland.
- Need for ensuring individual dignity: The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of the individual dignity of the Indian Constitution are not extended.
- Not state of exception: We often describe AFSPA in terms of a “state of exception”. But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”.
- Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.
Conclusion
- To bring in lasting peace in the North East, the government needs to avoid the trap of watered-down peace accords.
- While the move to withdraw AFSPA is welcome, it needs to be gradually erased.
- For that, changes in the ground situation would be crucial. Mere smoke signals or drum-beating can never do the job.
Get an IAS/IPS ranker as your personal mentor for UPSC 2024
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
Common Uniforms at Higher Ranks of Army
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Uniforms, Ranks and Insignia
Mains level: Not Much
Central Idea: A decision has been taken at the recent Army Commanders Conference to change the uniforms worn by senior Army officers.
Changes in Uniform
- All officers of the rank of Brigadier and above will now wear common uniform items.
- The common uniform items include berets, badges of rank, belt buckle, and pattern of shoes.
- Regimental lanyards and shoulder flashes will no longer be worn by officers of these higher ranks.
- There will be no item of uniform that will identify them as belonging to a particular Regiment or Corps.
Present Uniform Accoutrements
- Officers from the rank of Lieutenant to General currently wear uniform accoutrements as per their regimental or corps affiliation.
- Each Infantry Regiment and Corps has its own pattern of lanyard, badges of rank, buttons, and belt buckle as per regimental traditions.
Reason for Change
- Regimental service in the Army ends at the rank of Colonel for most officers who rise further.
- Senior officers commanding troops of mixed regimental lineage should present themselves in a neutral uniform rather than a regimental one.
Reversion to Past Practice
- The Army is now reverting to the practice that was followed almost 40 years ago, when the changes towards wearing regimental affiliations took hold in the service.
- Until about the mid-1980s, officers of the rank of Colonel and above had common uniform patterns and insignia.
Tradition in Other Armies
- In the British army, the uniform worn by officers of the rank of Colonel and above is referred to as the Staff uniform, to distinguish it from the Regimental uniform.
- Among neighbouring countries, the Pakistan and Bangladesh armies follow the same pattern as the British army.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
AFSPA Further Lifted Form Northeast: Positive Development
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: North east insurgency, security challenges and AFSPA
Central Idea
- The Centre’s decision to lift the Armed Forces (Special Powers) Act, 1958 from more police station limits in Assam, Manipur, and Nagaland is a positive development that sends a message of hope to the region. While insurgency has necessitated the imposition of AFSPA in the past, the prevalence of violence in the region has been on the decline, and the government’s peace negotiations with rebel groups have borne fruit.
What is Armed Forces (Special Powers) Act, (AFSPA )1958?
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in disturbed areas.
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if reasonable suspicion exists, the armed forces can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
What are the Special Powers?
- Power to use force: including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
- Power to destroy structures: used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
- Power to arrest: Without warrant and to use force for the purpose;
- Power to enter and search premises: without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
Reason for the decision
- Improved security: The decision was taken due to a significant improvement in the security situation in Northeast India.
- Decrease in Violence: The prevalence of insurgencies in almost all states in the Northeast may arguably have necessitated the imposition of AFSPA in the past. Statistics suggest that violence in the region has been on the decline. The MHA cited a reduction of 76% in extremist incidents, 90% decrease in deaths of security personnel and a 97% decrease in civilian deaths since 2014.
- Negotiations with Rebel Groups: The government has negotiated peace with rebel groups in the region, including NSCN-IM, Ulfa, Bodo, and Dimasa groups, with some success.
- Peace accords: The Mizo rebels, who signed a peace accord in 1986, joined electoral politics and won office. The Tripura government successfully negotiated with the insurgency and got AFSPA removed in 2015. The government must continue to engage with rebel groups to maintain peace in the region.
Conclusion
- The Centre’s decision to withdraw AFSPA in an incremental manner is a positive development for the region, and the government must continue to reduce its dependence on AFSPA to impose its writ. The Northeast’s stability is critical, especially with unrest in Myanmar, and the government must make judicious choices to balance regional and ethnic identity assertion with nationalism.
Are you an IAS Worthy Aspirant? Get a reality check with the All India Smash UPSC Scholarship Test
Get upto 100% Scholarship | 900 Registration till now | Only 100 Slots Left
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
AFSPA further reduced in Assam, Manipur and Nagaland: MHA
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Read the attached story
Central idea: Home Minister recently announced the decision to reduce the Disturbed Areas under the Armed Forces (Special Powers) Act (AFSPA) in Nagaland, Assam, and Manipur.
Reason for the decision
- Improved security: The decision was taken due to a significant improvement in the security situation in Northeast India.
- Decrease in Violence: The prevalence of insurgencies in almost all states in the Northeast may arguably have necessitated the imposition of AFSPA in the past. Statistics suggest that violence in the region has been on the decline. The MHA cited a reduction of 76% in extremist incidents, 90% decrease in deaths of security personnel and a 97% decrease in civilian deaths since 2014.
- Negotiations with Rebel Groups: The government has negotiated peace with rebel groups in the region, including NSCN-IM, Ulfa, Bodo, and Dimasa groups, with some success.
- Peace accords: The Mizo rebels, who signed a peace accord in 1986, joined electoral politics and won office. The Tripura government successfully negotiated with the insurgency and got AFSPA removed in 2015. The government must continue to engage with rebel groups to maintain peace in the region.
What is Armed Forces (Special Powers) Act, 1958?
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
What are the Special Powers?
- Power to use force: including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
- Power to destroy structures: used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
- Power to arrest: without warrant and to use force for the purpose;
- Power to enter and search premises: without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
Who can declare/notify such areas?
- 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.
Issues with AFSPA
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Misconduct by Armed Forces: The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012. It observed that- in conflict zones, legal protection for women was neglected.
- Autocracy: The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Recommendations to repeal AFSPA
- Justice B.P. Jeevan Reddy Commission: The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- ARC II: The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
Voices for repeal
- Human rights violations: The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging the dark history of our conduct in Nagaland.
- Need for ensuring individual dignity: The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of the individual dignity of the Indian Constitution are not extended.
- Not state of exception: We often describe AFSPA in terms of a “state of exception”. But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”.
- Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.
Conclusion
- To bring in lasting peace in the North East, the government needs to avoid the trap of watered-down peace accords.
- While the move to withdraw AFSPA is welcome, it needs to be gradually erased.
- For that, changes in the ground situation would be crucial. Mere smoke signals or drum-beating can never do the job.
Are you an IAS Worthy Aspirant? Get a reality check with the All India Smash UPSC Scholarship Test
Get upto 100% Scholarship | 900 Registration till now | Only 100 Slots Left
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
AFSPA extended in Nagaland, Arunachal
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Read the attached story
The Ministry of Home Affairs (MHA) has extended the Armed Forces (Special Powers) Act (AFSPA) in parts of Arunachal Pradesh and Nagaland for another six months.
AFSPA: A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
Armed Forces (Special Powers) Act, 1958
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.
What are the Special Powers?
The ‘special powers’ which are spelt out under Section 4 provide that:
(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
(c) Power to arrest without warrant and to use force for the purpose;
(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
What are the Disturbed Areas?
- A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
- As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
Who can declare/notify such areas?
- 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.
- A suitable notification would have to be made in the Official Gazette.
Presently active ‘Disturbed Areas’
- AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
- In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.
AFSPA: Is it a License to Kill?
While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.
Supreme Court’s Observations over AFSPA
- These extra-judicial killings became the attention of the Supreme Court in 2016.
- It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
- The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
- The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
Constitutionality of AFSPA
- Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
- Right to Life and Personal Liberty (Article 21) and
- Federal structure of the Constitution since law and order is a State subject
Recommendations to repeal AFSPA
(1) Justice B.P. Jeevan Reddy Commission
- The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
- It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.
(2) ARC II
- The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
- It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
- However, the recommendation was considered first and then rejected.
Other issues with AFSPA
(1) Sexual Misconduct by Armed Forces
- The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
- It observed that- in conflict zones, legal protection for women was neglected.
(2) Autocracy
- The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Way forward: Caution given by the Supreme Court
A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:
- Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
- Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
- Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
- No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
- Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
- Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
- People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
- Good intelligence: It added that “good intelligence is the key to success”.
- Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
- Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.
Conclusion
- Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
AFSPA
Context
- While AFSPA is repealed in 28 districts in Assam, 7 districts in Nagaland and 6 in Manipur, NSF president Kegwayhun Tep said that it should be repealed in all Northeastern states .
What is Armed Forces (Special Powers) Act, 1958?
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.
AFSPA: A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
What are the Special Powers?
- Power to use force: including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
- Power to destroy structures: used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
- Power to arrest: without warrant and to use force for the purpose;
- Power to enter and search premises: without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
Who can declare/notify such areas?
- 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.
Issues with AFSPA
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Sexual Misconduct by Armed Forces: The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012. It observed that- in conflict zones, legal protection for women was neglected.
- Autocracy: The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Recommendations to repeal AFSPA
- Justice B.P. Jeevan Reddy Commission: The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- ARC II: The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
Why AFSPA should be repealed?
- Human right violations: The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging dark history of our conduct in Nagaland.
- Need for ensuring individual dignity: The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of individual dignity of the Indian Constitution are not extended.
- Not state of exception: We often describe AFSPA in terms of a “state of exception”. But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”.
- Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.
Conclusion
- To bring in lasting peace in the North East, the government needs to avoid the trap of watered-down peace accords. While the move to withdraw AFSPA is welcome, it needs to be gradually erased. For that, changes in the ground situation would be crucial. Mere smoke signals or drum-beating can never do the job.
Mains question
Q. Do you think AFSPA is license to kill? Critically examine the utility of AFSPA today.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
Keen on lifting AFSPA from NE: PM
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Improvement in security conditions in NE
The PM informed that AFSPA could be withdrawn partially from Assam, Manipur and Nagaland (from April 1) due to peaceful conditions since 2014.
What is the news?
- The AFSPA will now be applicable fully only in 31 districts and partially in 12 districts of four states in the Northeast Assam, Nagaland, Manipur and Arunachal Pradesh.
- These four states together comprise 90 districts.
- The AFSPA was completely withdrawn in Meghalaya in 2018, Tripura in 2015 and Mizoram in the 1980s.
Immediate reasons for withdrawal
- The Northeast has lived under the shadow of AFSPA for nearly 60 years, creating a feeling of alienation from the rest of the country.
- The move is expected to help demilitarise the region; it will lift restrictions of movements through check points and frisking of residents.
- Years of AFSPA regime has had psychological consequences, trauma and alienation of the people.
AFSPA: A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
Armed Forces (Special Powers) Act, 1958
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.
What are the Special Powers?
The ‘special powers’ which are spelt out under Section 4 provide that:
(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
(c) Power to arrest without warrant and to use force for the purpose;
(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
What are the Disturbed Areas?
- A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
- As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
Who can declare/notify such areas?
- 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.
- A suitable notification would have to be made in the Official Gazette.
Presently active ‘Disturbed Areas’
- AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
- In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.
AFSPA: Is it a License to Kill?
While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.
Supreme Court’s Observations over AFSPA
- These extra-judicial killings became the attention of the Supreme Court in 2016.
- It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
- The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
- The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
Constitutionality of AFSPA
- Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
- Right to Life and Personal Liberty (Article 21) and
- Federal structure of the Constitution since law and order is a State subject
Recommendations to repeal AFSPA
(1) Justice B.P. Jeevan Reddy Commission
- The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
- It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.
(2) ARC II
- The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
- It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
- However, the recommendation was considered first and then rejected.
Other issues with AFSPA
(1) Sexual Misconduct by Armed Forces
- The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
- It observed that- in conflict zones, legal protection for women was neglected.
(2) Autocracy
- The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Caution given by the Supreme Court
A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:
- Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
- Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
- Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
- No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
- Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
- Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
- People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
- Good intelligence: It added that “good intelligence is the key to success”.
- Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
- Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.
Conclusion
- Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
It’s time to repeal AFSPA
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Criticism of AFSPA
Context
The Centre on Thursday significantly reduced the footprint of the Armed Forces Special Powers Act (AFSPA), 1958 in the Northeast, withdrawing it entirely from 23 districts in Assam; and partially from seven districts in Nagaland, six districts in Manipur, and one district in Assam.
Background of AFSPA
- AFSPA was adopted in 1958 during the early days of the Naga uprising to apply to what was then the state of Assam and the union territory of Manipur.
- The counterinsurgency campaigns against the Nagas were counterproductive.
- In the following decades, as new states were formed in Northeast India, AFSPA was amended to accommodate the names of those states.
Provision under AFSPA, 1958
- AFSPA allows civilian authorities to call on the armed forces to come to the assistance of civil powers.
- Sweeping powers to armed forces: Once a state — or a part of a state — is declared “disturbed” under this law, the armed forces can make preventive arrests, search premises without warrants, and even shoot and kill civilians.
- Approval of central government for legal action: Legal action against those abusing these powers requires the prior approval of the central government — a feature that functions as de facto immunity from prosecution.
Issues with AFSPA
- Critics charge that it effectively suspends fundamental freedoms and creates a de facto emergency regime.
- In 2012, a petition was filed in the Supreme Court to investigate as many as 1,528 cases of fake encounters that allegedly occurred in the state between 1979 and 2012.
- Supreme Court appointed a three-member commission to inquire into the first six of the 1,528 cases in the petition.
- Its interim judgment of July 2016 said that “there is some truth in the allegations, calling for a deeper probe”.
- In the court’s view, AFSPA clearly provided the context for these killings.
Demand for changes and repeal
- When the Supreme Court pronounced AFSPA constitutional in 1997, it also recommended some changes.
- Among them was the stipulation that a “disturbed area” designation be subjected to review every six months.
- In some parts of Northeast India, AFSPA is now routinely extended every six months. But there is little evidence that any meaningful review occurs at those times.
- In 2004, the then central government set up a five-member committee under former Supreme Court Justice Jeevan Reddy, which submitted its report in 2005 recommending the repeal of AFSPA, calling it “highly undesirable”, and saying it had become a symbol of oppression.
- Subsequently, the Second Administrative Reforms Commission, headed by Veeerapa Moily, endorsed these recommendations.
Conclusion
One must welcome the government’s announcement to reduce the number of such areas. But not to consider the repeal of this law, which is now almost as old as the Republic, is a missed opportunity to reflect on why this law has or has not been successful, and to learn from this history and strengthen the foundation of our democracy.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
Areas under AFSPA regime reduced: Home Ministry
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Issues over AFSPA disturbed areas
The Union Home Ministry has considerably reduced the “disturbed areas” under the Armed Forces (Special) Powers Act (AFSPA) in Assam, Manipur and Nagaland.
AFSPA: A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
Armed Forces (Special Powers) Act, 1958
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.
What are the Special Powers?
The ‘special powers’ which are spelt out under Section 4 provide that:
(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
(c) Power to arrest without warrant and to use force for the purpose;
(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
What are the Disturbed Areas?
- A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
- As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
Who can declare/notify such areas?
- 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.
- A suitable notification would have to be made in the Official Gazette.
Presently ‘Disturbed Areas’
- AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
- In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.
AFSPA: Is it a License to Kill?
While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.
Supreme Court’s Observations over AFSPA
- These extra-judicial killings became the attention of the Supreme Court in 2016.
- It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
- The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
- The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
Constitutionality of AFSPA
- Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
- Right to Life and Personal Liberty (Article 21) and
- Federal structure of the Constitution since law and order is a State subject
Recommendations to repeal AFSPA
(1) Justice B.P. Jeevan Reddy Commission
- The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
- It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.
(2) ARC II
- The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
- It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
- However, the recommendation was considered first and then rejected.
Other issues with AFSPA
(1) Sexual Misconduct by Armed Forces
- The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
- It observed that- in conflict zones, legal protection for women was neglected.
(2) Autocracy
- The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Caution given by the Supreme Court
A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:
- Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
- Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
- Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
- No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
- Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
- Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
- People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
- Good intelligence: It added that “good intelligence is the key to success”.
- Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
- Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.
Conclusion
- Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
Panel on AFSPA removal misses ‘45-day’ deadline
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Read the attached story
A committee constituted by the Union Home Ministry to study the withdrawal of the Armed Forces (Special Powers) Act, or AFSPA, from Nagaland, slated to submit a report within 45 days is yet to conclude its findings.
AFSPA: A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
Armed Forces (Special Powers) Act, 1958
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.
What are the Special Powers?
The ‘special powers’ which are spelt out under Section 4 provide that:
(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
(c) Power to arrest without warrant and to use force for the purpose;
(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
What are the Disturbed Areas?
- A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
- As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
Who can declare/notify such areas?
- 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.
- A suitable notification would have to be made in the Official Gazette.
Presently ‘Disturbed Areas’
- AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
- In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.
Is it a License to Kill?
While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.
Supreme Court’s Observations over AFSPA
- These extra-judicial killings became the attention of the Supreme Court in 2016.
- It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
- The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
- The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
Constitutionality of AFSPA
- Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
- Right to Life and Personal Liberty (Article 21) and
- Federal structure of the Constitution since law and order is a State subject
Recommendations to repeal AFSPA
(1) Justice B.P. Jeevan Reddy Commission
- The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
- It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.
(2) ARC II
- The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
- It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
- However, the recommendation was considered first and then rejected.
Controversies with AFSPA
(1) Sexual Misconduct by Armed Forces
- The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
- It observed that- in conflict zones, legal protection for women was neglected.
(2) Autocracy
- The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Caution given by the Supreme Court
A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:
- Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
- Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
- Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
- No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
- Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
- Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
- People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
- Good intelligence: It added that “good intelligence is the key to success”.
- Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
- Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.
Conclusion
- Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
Repealing AFSPA will strengthen Constitution
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Paper 2- Repealing AFSPA
Context
The killing of 14 civilians in Nagaland in a security operation has sparked debate over the Armed Forces Special Powers Act (AFSPA).
Case for repeal of AFSPA
- The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging dark history of our conduct in Nagaland.
- If the moral case for repealing AFSPA is strong, the political case points in the same direction as well.
- Need for ensuring individual dignity: The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of individual dignity of the Indian Constitution are not extended.
- Not state of exception: We often describe AFSPA in terms of a “state of exception”.
- But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”.
Why AFSPA is counterproductive to Army
- Distortion of choice: First, giving wide immunity to the forces can distort the choice of strategy in counter insurgency operations.
- Reduce professionalism: Second, wider immunity can often reduce rather than increase the professionalism of the forces.
- Against federalism: Third, we are constantly in the vicious circle that leads to central dominance in a way that undermines both Indian federalism and operational efficiency.
Powers and limits under AFSPA
- The Act grants extraordinarily sweeping powers to the armed forces of search, seizure, arrest, the right to shoot to kill.
- No blanket immunity: It is true that AFSPA does not grant blanket immunity.
- The SC guidelines: The Supreme Court laid down guidelines for the use of AFSPA in 1997; and in principle, unprofessional conduct, crimes and atrocities can still be prosecuted.
- But this will run into two difficulties.
- Lack of accountability mechanism: As the Jeevan Reddy Committee that advocated the repeal of AFSPA pointed out, the accountability mechanisms internal to AFSPA have not worked.
- In 2017, the Supreme Court ordered a probe into 1,528 extra-judicial killings in Manipur.
- At the least, this order seemed to suggest the problems with AFSPA were systemic.
- But there have apparently been no hearings in this case for three years.
- Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.
- Our discourse is a rather abstract one, balancing concepts of human rights and national security.
Conclusion
It is high time that all parties come together to repeal AFSPA. It will also be in the fitness of things if all parties got together to acknowledge the trauma in Nagaland and elsewhere. This will strengthen, not weaken, the comatose Indian constitutional project.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Armed Forces (Special Powers) Act
What is Armed Forces (Special Powers) Act, 1958?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: AFSPA
Mains level: Human Rights and National Security dichotomy
The death of at least 14 civilians in Nagaland as a result of the action of the Indian Army has brought back into focus the controversial Armed Forces (Special Powers) Act, 1958 [AFSPA].
AFSPA: A Backgrounder
- The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
- It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
- It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
Armed Forces (Special Powers) Act, 1958
- Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
- AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
- The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.
What are the Special Powers?
The ‘special powers’ which are spelt out under Section 4 provide that:
(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
(c) Power to arrest without warrant and to use force for the purpose;
(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.
What are the Disturbed Areas?
- A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
- As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
Who can declare/notify such areas?
- 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.
- A suitable notification would have to be made in the Official Gazette.
Presently ‘Disturbed Areas’
- AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
- In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.
AFSPA: Is it a License to Kill?
While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.
- Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
- Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.
Supreme Court’s Observations over AFSPA
- These extra-judicial killings became the attention of the Supreme Court in 2016.
- It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
- The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
- The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
Constitutionality of AFSPA
- Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
- Right to Life and Personal Liberty (Article 21) and
- Federal structure of the Constitution since law and order is a State subject
Recommendations to repeal AFSPA
(1) Justice B.P. Jeevan Reddy Commission
- The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
- Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
- It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.
(2) ARC II
- The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
- It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
- However, the recommendation was considered first and then rejected.
Other issues with AFSPA
(1) Sexual Misconduct by Armed Forces
- The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
- It observed that- in conflict zones, legal protection for women was neglected.
(2) Autocracy
- The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
Caution given by the Supreme Court
A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:
- Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
- Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
- Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
- No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
- Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
- Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
- People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
- Good intelligence: It added that “good intelligence is the key to success”.
- Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
- Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.
Conclusion
- Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024