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LUCID MAINS CURRENT AFFAIRS 2018

  1. ARMED FORCES SPECIAL POWERS ACT

BACKGROUND

The Armed Forces (Special Powers) Act of 1958 (AFSPA) was adopted by the Indian Parliament as an emergency measure granting special powers to the Indian Armed Forces for use in an area that has been declared ‘disturbed.’ The ASPA was first applied to the Seven Sister States of North East India including Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, on 1 September, 1958, to stop the North Eastern States seceding from the Indian Union. Later Punjab and Chandigarh also came within the purview of this act, which was later withdrawn in 1997. AFSPA was applied to the state of Jammu and Kashmir in 1990 and has been in force since.

WHAT IS AFSPA?

AFSPA gives armed forces the power to maintain public order in “disturbed areas”.

DISTURBED AREAS:

  • An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.
  • 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.

The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments

THE FEATURES OF AFSPA    

  • The State or the Central Government have the power to demarcate an area in the Indian Union as ‘disturbed’.
  • The opinion of the State Government as to whether or not an area is ‘disturbed’ can be overruled by the governor or the center.
  • Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the center 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.
  • POWERS OF AFSPA

According to AFSPA, an officer of the armed forces has the following powers are provided in “disturbed areas

  • After a warning, he can use any kind of force including fire-power against any situation which is jeopardizing public order.
  • The power to destroy the fortified positions, hide-outs and dumps of persons deemed to be armed volunteers or armed gangs and wanted for an offence.
  • The right to arrest without warrant any person who is suspected of having committed a cognizable offence.
  • The authority to enter and search the premises without a warrant, in order to make arrests, recover any person wrongfully restrained, or to recover any arms, ammunition or explosive substances and seize it.
  • The right to stop and search a vehicle or a vessel suspected to be carrying weapons or a person deemed to have broken the law.
  • Army officers have legal immunity for their actions

WHICH STATES ARE, OR HAD COME UNDER THIS ACT?

  • It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh. The Centre revoked it in Meghalaya on April 1, 2018. Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border. In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations and in Tirap, Longding and Changlang districts bordering Assam.
  • Tripura withdrew the AFSPA in 2015. Jammu and Kashmir too has a similar Act.
  • It was applied in Punjab and Chandigarh in 1983 due to secessionist movements and lasted for 14 years until there 1997, in Chandigarh it continued till 2012. Punjab was the first state from where AFSPA was revoked.

ARGUMENTS FOR AFSPA:

  • Extraordinary situations demand extraordinary measures, and AFSPA is what is required to deal with anti-Indian terrorists whose stated objective is breaking up the country. 
  • The army is opposed to the withdrawal of AFSPA. Many argue that removal of the act will lead to demoralizing the armed forces and see militants motivating locals to file lawsuits against the army.
  • 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.
  • Terrorism would never have been rooted out in Punjab or Mizoram without the AFSPA and without the tough measures that were taken by the security forces operating under the protection of the Act.

CRITICISM OF AFSPA:

  • Critics say the undemocratic 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 spiraling violence in areas it is in force.
  • Manipur’s human rights activist Irom Sharmila was on an indefinite hunger strike for over 16 years, demanding the withdrawal of the act in her home state.
  • The justice Jeevan Reddy Committee was set up in 2005 to review AFSPA and make recommendations. It recommended that Afspa should be repealed and the Unlawful Activities Protection Act strengthened to fight militancy.
  • Violation of fundamental rights can be seen.
  • Article 21Right to life: the power conferred on the army to kill, arrest by force.
  • Article 22Protection against arrest and detention: the act has given complete authority to the officers to arrest any person on the said reasonable grounds and there is no stipulated time within which the army has to produce the person before the court.

WHY THE ACT IS A NECESSARY EVIL?

Even though there is a high dose of criticism, there are certain genuine arguments which validate the retention of AFSPA. They are:

  • The AFSPA is applied to an area only when the ordinary laws of the land are found to be inadequate to deal with the extraordinary situation perpetrated by insurgents spreading terror.
  • Insurgent movements in India have more or less been proxy-wars being waged against India by external actors and this necessitates the deployment of armed forces in a counter-insurgency role with enhanced legal protection.
  • The army cannot operate in militancy hit areas without the AFSPA and if AFSPA is repealed, as is being demanded, the army would have to be withdrawn from that state or area. That will create a huge gap in the security grid and will give terrorists an upper hand in the regions.

WAY FORWARD

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 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.