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Background

• The AFSPA, a reincarnation of a British-era legislation enacted to suppress protests during the Quit India movement, originated through four ordinances in 1947.
• The ordinances were later consolidated into an Act in 1948, and the version applicable in the Northeast was introduced in Parliament in 1958 under the guidance of then Home Minister G.B. Pant.
• Initially named the Armed Forces (Assam and Manipur) Special Powers Act, 1958, it was designed to address specific security concerns.
• Following the establishment of the states of Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland, the Act was adapted to extend its application to these regions as well, incorporating them into its jurisdiction.

About the Act:

• The Armed Forces (Special Powers) Act (AFSPA) grants extensive powers to the armed forces and Central armed police forces deployed in designated "disturbed areas." These powers include the authority to use lethal force against individuals violating the law, as well as the ability to arrest and search premises without a warrant. Importantly, it provides protection from prosecution and legal suits for actions taken under its provisions.
• Initially enacted in 1958, the AFSPA was introduced to address the unrest in the Naga region.
• In 1972, the Act underwent amendments, granting the Central government concurrent powers with the states to declare an area as "disturbed."
• Tripura revoked the AFSPA in 2015, while Meghalaya, under the Act for 27 years, saw its revocation by the Ministry of Home Affairs (MHA) from April 1, 2018.
• Presently, the AFSPA is in effect in certain areas of Assam, Nagaland, Manipur, and Arunachal Pradesh.

Key Provisions of the Act:

• Declaration of Disturbed Areas:

1. Empowers the Governor of a State and the Central Government to declare any part or the entirety of a state as a disturbed area.
2. Such a declaration is based on the opinion that disruption of terrorist or similar activities, impacting the sovereignty of India, or posing a threat to national symbols is necessary.

• Deployment of Armed Forces:

1. According to Section (3) of AFSPA, if the Governor issues an official notification in The Gazette of India, the Central government gains the authority to deploy armed forces to assist civilian authorities.
2. Once an area is declared 'disturbed,' the status quo must be maintained for a minimum of three months, as per The Disturbed Areas Act of 1976.

• Special Powers for Armed Forces:

1. Section (4) grants special powers to army officers in disturbed areas, allowing them to shoot (even lethally) any individual suspected of violating the law (e.g., assembling in groups of five or more, carrying weapons), provided a warning is given before using force.

• Arrest and Search Powers:

1. Security forces are authorized to arrest individuals without a warrant and conduct searches without consent.

• Custody and Handover:

1. Once a person is apprehended, they must be handed over to the nearest police station promptly.

• Prosecution and Human Rights:

1. Prosecution of an officer on duty for alleged violations of human rights necessitates prior permission from the Central Government.

Controversies Surrounding the Armed Forces (Special Powers) Act (AFSPA):

1. Human Rights Violations:

• The AFSPA grants broad powers, including the use of force, including lethal force, by security personnel, including non-commissioned officers, for the maintenance of public order.
• Soldiers are given executive authority to enter premises, conduct searches, and make arrests without a warrant.
• The exercise of these extensive powers has resulted in allegations of fake encounters and other human rights abuses by security forces in disturbed areas, raising concerns about the prolonged imposition of AFSPA in states like Nagaland and Jammu and Kashmir.

2. Jeevan Reddy Committee Recommendations:

• In November 2004, the Central government established a committee led by Justice B P Jeevan Reddy to assess the provisions of AFSPA in the northeastern states.
• The committee recommended the repeal of AFSPA and proposed incorporating relevant provisions in the Unlawful Activities (Prevention) Act, 1967.
• Suggested modifications to the Unlawful Activities Act to clearly define the powers of armed and paramilitary forces, along with the establishment of Grievance cells in each district where these forces are deployed.

3. Second ARC Recommendation:

• The 5th report of the Second Administrative Reforms Commission (ARC) on public order also advocated for the repeal of AFSPA.
• Despite these recommendations, there has been no implementation of the suggested reforms, maintaining the status quo around AFSPA.

Supreme Court Perspectives on the Armed Forces (Special Powers) Act (AFSPA):

In a significant 1998 judgment, specifically in the case of Naga People's Movement of Human Rights v. Union of India, the Supreme Court rendered views on the constitutionality of AFSPA. The key points from the judgment include:

• Suo-Motu Declaration and Consultation:

1. The Supreme Court acknowledged the constitutionality of AFSPA, affirming that a suo-motu declaration can be made by the Central government.
2. However, it stressed the importance of consulting the state government by the central government before making such a declaration.

• Limited Duration and Periodic Review:

1. The Court emphasized that any declaration made under AFSPA should be for a limited duration.
2. It mandated a periodic review of the declaration, specifically after every six months, to assess the ongoing necessity of its continuation.

• Use of Minimal Force:

1. While outlining the powers conferred by AFSPA, the Supreme Court directed that the authorized officer should exercise these powers with utmost restraint.
2. The authorized officer is expected to use minimal force necessary for effective action, ensuring a balanced and measured approach in maintaining public order.

Way Forward

• Case-by-Case Imposition and Lifting:

1. The government should reevaluate the application of AFSPA, considering a case-by-case approach rather than its blanket imposition across entire states.
2. A more nuanced strategy, focusing on specific districts experiencing disturbances, would be a prudent alternative.

• Adherence to Guidelines:

1. Strict adherence to the guidelines outlined by authoritative bodies such as the Supreme Court, Jeevan Reddy Commission, and the National Human Rights Commission (NHRC) is imperative.
2. The government and security forces must align their actions with these guidelines to ensure a balanced and lawful approach in maintaining public order.

Conclusion:

Recognizing the imperatives of addressing human rights concerns and fostering a sense of trust among the affected population, the government should embark on a comprehensive reassessment of AFSPA. By adopting a case-specific approach, limiting its application, and adhering to established guidelines, the government can pave the way for a more just and balanced security framework. This transformation is crucial not only for upholding human rights but also for restoring faith in the governance structures operating in these regions.