UPSC MAINS 2019 : AFSPA scaled back in Arunachal Pradesh

Topic : AFSPA scaled back in Arunachal Pradesh

Topic in Syllabus: General Studies Paper 3: Security Issues

 

Context:

The controversial Armed Forces Special Powers Act (AFSPA) was partially removed from Arunachal Pradesh, 32 years after it was imposed, a Ministry of Home Affairs (MHA) order said recently.

 

More about on news:

  • The Act, which gives sweeping powers to security forces, was partially withdrawn from three of the state’s nine districts, but would remain in force in the areas bordering Myanmar, the MHA order said.
  • The state, which was formed on February 20, 1987, had inherited the controversial AFSPA enacted by Parliament in 1958 and applied to the entire State of Assam and the Union Territory of Manipur.
  • After Arunachal Pradesh, Meghalaya, Mizoram and Nagaland came into being, the Act was appropriately adapted to apply to these states as well.
  • The Justice B P Jeevan Reddy committee had recommended scrapping of the AFSPA from the state.
  • The police station areas from where the AFSPA has been withdrawn are Balemu and Bhalukpong police stations in West Kameng district, Seijosa police station in East Kameng district and Balijan police station in Papumpare district.
  • AFSPA is declared in areas where armed forces are required to operate in aid to civil authorities. However, for AFSPA to become valid, an area needs to be declared “disturbed” either by the Central or the state government under Section 3 of the Act.
  • As per the MHA’s notification on Tuesday, the four police station areas in Arunachal Pradesh which were declared “disturbed areas” under AFSPA are no longer under the purview of the special law.

 

Background:

  • Arunachal Pradesh became a state on February 20, 1987, and since its inception, the controversial AFSPA enacted by Parliament in 1958 was applied to the certain parts of the state.
  • In 2018, MHA had reduced AFPSA from 16 police stations areas bordering Assam to eight police stations, besides Tirap, Changlang and Longding districts, adjoining Myanmar.
  • One of the reasons cited by the Centre for imposing AFSPA in Arunachal’s Tirap, Changlang and Longding all bordering Assam – and 16 other police station areas was the extortion and killing of security forces by the National Socialist Council of Nagaland (Isak-Muivah) and NSCN-K.
  • While NSCN-IM signed a framework agreement with the government, NSCN-K capabilities have been depleted after death of its leader SS Khaplang.

 

What does the AFSPA mean?

  • In simple terms, AFSPA gives armed forces the power to maintain public order in “disturbed areas”.
  • They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law.
  • Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

 

What is a “disturbed area” and who has the power to declare it?

  • A disturbed area is one which is declared by notification under Section 3 of the AFSPA.
  • An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.
  • 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.
  • As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
  • 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.

 

Origin of AFSPA:

  • The Act came into force in the context of increasing violence in the Northeastern States decades ago, which the State governments found difficult to control.
  • The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958.
  • It became known as the Armed Forces Special Powers Act, 1958.

 

The safeguards provided under AFSPA:

  • 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.

 

Arguments in the favour of AFSPA:

  • On the basis of the power given to the armed forces, they are able to protect the boundaries of the country.
  • In the absence of strict law, the armed forces will not be able to tackle the insurgent inside the country esp. in the Kashmir and North eastern region of the country.
  • The powers given in the ASFPA boost the moral of the armed forces to ensure the rule of law in the disturbed areas of the country.

 

Arguments against the AFSPA:

  • There are so many examples when the oppressive powers given to the armed forces have been misused.
  • The armed forces are conducting fake encounters and sexually exploiting the women in the disturbed areas.
  • AFSPA,violates human rights.
  • Some critics compared ASFPA with the Rowlatt act of the British time because like the Rowlatt Act, any suspicious person can be arrested on the basis of doubt in the ASFPA also.

 

Powers are given to the Armed forces under the ASFPA:

  • Any suspect can be arrested without a warrant.
  • Armed forces can search any house without any warrant and required force can be used to search it.
  • Under this law the armed forces have the authority to prohibit gathering of five or more persons in an area.
  • In some cases the forces can open fire on the disturbing factors after giving due warning if they found any suspicious person.
  • If a person is repeated offender and tries to disturb the peace of the area, then armed forces are entitled to use force till his death.
  • If the Armed Forces suspect that any militant or offender is hiding in any house/building then the site or structure can be destroyed by the forces.
  • Any Vehicle can be stopped and searched.
  • Even in the case of wrongful action by the armed forces, legal action is not taken against them.

 

Has there been any review of the Act?

  • On November 19, 2004, the Central government appointed a five member committee headed by Justice B P Jeevan Reddy to review the provisions of the act in the north eastern states.
  • The committee submitted its report in 2005, which included the following recommendations:
    • AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967;
    • The Unlawful Activities Act should 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.
  • The 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA.

 

What has been the role of the judiciary?

There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement(Naga People’s Movement of Human Rights v. Union of India).

In this judgment, the Supreme Court arrived at certain conclusions including:

  • a suo-motto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration;
  • AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’;
  • the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired;
  • while exercising the powers conferred upon him by AFSPA, the authorized officer should use minimal force necessary for effective action, and
  • The authorized officer should strictly follow the ‘Dos and Don’ts’ issued by the army.

 

Recommendations:

  • Needs to cater for the protection of the armed forces operating in a disturbed area
  • Incorporation of existing Supreme Court guidelines on Dos and Don’ts in AFSPA.
  • Create committees at the district level with representatives of army, police, civil administration and the public to report, assess and track complaints in the area.
  • All investigations should be time bound. Reasons for delay, should be communicated to the aggrieved.
  • Implementation of Jeevan Reddy Commission recommendations
  • AFSPA should be made compliant with international and national norms of human rights and humanitarian law.
  • Elevate human rights as the core organizing principle in counter insurgency.

 

Sample Question:

What do understand by Armed Forces Special Powers Act (AFSPA)? Discuss the Powers and Pros & cons of the law?