Insights into Editorial: AFSPA: The Army needs it!
AFSPA has been under review for quite some time. While the defence ministry and Army headquarters are opposed to changes in the basic provisions of the Act, the home ministry is reported to have recommended a major overhaul of the Act to bring it in line with egalitarian human rights practices.
What is AFSPA?
AFSPA, enacted in 1958, gives powers to the army and state and central police forces to shoot to kill, search houses and destroy any property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry.
- The Act provides army personnel with Constitutional safeguards against malicious, vindictive and frivolous prosecution.
- Security forces can “arrest without warrant” a person, who has committed or even “about to commit a cognizable offence” even on “reasonable suspicion”.
Which states are under Afspa?
It is in force in Assam, Jammu and Kashmir, Nagaland, Manipur (except the Imphal municipal area). In Arunachal Pradesh, only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam come under its purview. And in Meghalaya Afspa is confined to a 20-km area bordering Assam.
What are ‘disturbed’ areas?
The state or central government considers those areas as ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”
How is a region declared ‘disturbed’?
Section (3) of the Afspa empowers the governor of the state or Union territory to issue an official notification in 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.
What is state government’s role?
The state governments can suggest whether the act is required to be enforced or not. But under Section (3) of the act, their opinion can be overruled by the governor or the Centre.
Is the act uniform in nature?
Initially, it was meant only for Assam and Manipur, where there was an insurgency by Naga militants. After the reorganisation of the northeast in 1971, the creation of new states like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the Afspa to be amended, so that it could be applied to each of them. The amendments contain different sections as applicable to the situation in each state.
However, certain sections of the civil society view AFSPA as a draconian Act. Why?
- It has been dubbed as a license to kill. The main criticism of the Act is directed against the provisions of Section 4, which gives the armed forces the power to open fire and even cause death, if prohibitory orders are violated. Human rights activists object on the grounds that these provisions give the security forces unbridled powers to arrest, search, seize and even shoot to kill.
- Activists accuse the security forces of having destroyed homes and entire villages merely on the suspicion that insurgents were hiding there. They point out that Section 4 empowers the armed forces to arrest citizens without warrant and keep them in custody for several days.
- They also object to Section 6, which protects security forces personnel from prosecution except with the prior sanction of the central government. Critics say this provision has on many occasions led to even non-commissioned officers brazenly opening fire on crowds without having to justify their action.
- Critics say the 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 decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. Hence, several cases of human rights violations go unnoticed.
Recommendations made by experts:
A committee headed by Justice Jeevan Reddy was appointed in 2004 to review AFSPA. Though the committee found that the powers conferred under the Act are not absolute, it nevertheless concluded that the Act should be repealed.
However, it recommended that essential provisions of the Act be inserted into the Unlawful Activities (Prevention) Act of 1967.
The key recommendations of the Reddy Committee were:
- In case the situation so warrants, the state government may request the Union government to deploy the army for not more than six months.
- The Union government may also deploy the armed forces without a request from the state. However, the situation should be reviewed after six months and Parliament’s approval should be sought for extending the deployment.
- Non-commissioned officers may continue to have the power to fire.
- The Union government should set up an independent grievances cell in each district where the Act is in force.
The Second Administrative Reforms Commission headed by then Union law minister M Veerappa Moily also recommended that AFSPA should be repealed and its essential provisions should be incorporated in the UAPA. If this course of action is adopted, it would be a retrograde step that will substantially harm the national cause.
But, why have AFSPA?
- The Army clearly sees AFSPA as a capstone enabling Act that gives it the powers necessary to conduct counter-insurgency operations efficiently.
- If AFSPA is repealed or diluted, it is the army leadership’s considered view that the performance of battalions in counter-insurgency operations will be adversely affected and the terrorists or insurgents will seize the initiative.
- 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.
- Also, extraordinary situations require special handling. As the army does not have any police powers under the Constitution, it is in the national interest to give it special powers for operational purposes when it is called upon to undertake counter-insurgency operations in disturbed areas.
Protective measures provided:
- Section 5 of the Act already mandates that arrested civilians must be handed over to the nearest police station ‘with the least possible delay’ along with a report of ‘circumstances occasioning the arrest.’
- Army HQ has also laid down that all suspects who are arrested will be handed over to civilian authorities within 24 hours.
- Regarding firing on civilians, the army’s instructions are that fire may be opened in towns and villages only in self defence and that too when the source of terrorist or militant fire can be clearly identified.
Army personnel must be given immunity but such immunity must not be absolute, nor is it so under the present AFSPA. The Supreme Court of India recently ruled that the armed forces cannot escape investigation for excesses in the course of the discharge of their duty even in “disturbed areas”. The central government should sanction prosecution where prima facie cases existed.
The army must make it mandatory for its battalions to take police personnel and village elders along for operations which involve the search of civilian homes and the seizure of private property.
The practical problems encountered in ensuring transparency in counter-insurgency operations must be overcome by innovative measures. The army must be completely transparent in investigating allegations of violations of human rights and bringing the violators to speedy justice. Exemplary punishment must be meted out where the charges are proved.