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.

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