Title : END THE IMPUNITY (ON AFSPA LAW)

Date : Dec 08, 2021

Description :

Based on a News Article published in the ‘The Hindu’ on 07^th December 2021 on Page Number 6

 

Useful for UPSC CSE Prelims and Mains (GS Paper III)

 

Context:

 

• The Government of Assam, acting under Section 3 of the Armed Forces (Special Powers) Act, 1958, has declared the entire State of Assam a "Disturbed Area" for six months, beginning August 28, 2021, unless earlier removed.
• Despite the fact that the announcement did not clarify why the AFSPA was being extended throughout the state,

 

What is AFSPA:

 

• The Armed Forces Special Powers Act (AFSPA) is a law that grants special powers to the military.
• AFSPA, like many other contentious laws, has colonial roots.
• The AFSPA was first adopted in 1942 as an ordinance by Viceroy Linlithgow in response to the widespread violence sparked by Mahatma Gandhi's Quit India Movement.
• The AFSPA was enacted in 1958 after independence to assist the army in maintaining the rule of law or public order in "disturbed areas" of North East India.
• After a surge in insurgency in J&K in 1990, AFSPA was adopted.
• The military forces have the authority under this law to ban groups of 5 or more people from congregating in a given area.
• If the forces believe a person is breaking the law, they may use force or even open fire after giving adequate notice.
• The army can also arrest a person without a warrant, enter or search a person's home without a warrant, and restrict the possession of firearms if there is a reasonable suspicion.
• Even if the armed forces commit a crime, no legal action can be brought against them.

 

What is a disturbed ultuous area, and who has the authority to declare one:

 

• A disturbed area is declared by filing a notification under the AFSPA's Section (3).
• If there are differences or arguments between distinct religious, racial, language, regional, or caste groups, an area can be deemed troubled.
• The Central Government, the Governor of the State, or the Administrator of the Union Territory can proclaim a disturbed area in all or part of the state or union territory.
• According to Section (3) of the AFSPA, it is required to seek the state government's view on whether or not an area has been disturbed. The governor or the federal government can, however, overrule the state government's decision.
• If a disturbed region is proclaimed, it will be under the supervision of the military for at least three months.

 

What are the justifications for AFSPA? (by military forces):

 

• Protect borders: For decades, the military forces have been able to protect the country's borders thanks to the capabilities granted by AFSPA.

 

• Effective counter-insurgency: To deal with insurgent elements within the country, notably in Kashmir and the northeastern region, a stringent law is required.

 

• Boosting Forces' morale: AFSPA improves the morale (mental well-being) of the armed forces, allowing them to maintain public order in troubled areas. If the Act were repealed, militants would be able to persuade locals to file lawsuits against the army.

 

• Operational requirements: In the absence of such a legislative statute, organisational flexibility and the use of the state's security capability would be harmed, and the armed forces would be unable to execute their given mission.

 

The Act and the Army's rules establish necessary safeguards, as follows:

 

• Arrested citizens must be handed over to the nearest police station with the 'least possible delay,' along with a report of events that led to the arrest,' according to Section 5 of the Act.
• All suspects who are apprehended must be handed over to civilian authorities within 24 hours, according to Army Headquarters.
• The army's standards state that a fire in a town or village may only be started in self-defense and only when the source of terrorist or militant fire can be clearly recognised.

 

What are the counter-arguments against AFSPA:

 

• Human Rights Violations: There have been multiple cases when the armed forces have been found to be abusing the oppressive powers granted by the Act, such as staging fake encounters and sexually exploiting women in troubled areas. What's more alarming is that the armed forces get away with their crimes unpunished since the Act prohibits legal action against them. As a result, AFSPA is plainly a violation of human rights.

• Colonial-era law: The AFSPA is sometimes compared to the British regime's Rowlatt Act, because, like the Rowlatt Act, any suspected individual can be arrested only on the basis of suspicion under the AFSPA.

• Not a better solution: Critics argue that the country should not be run on the basis of the bullet when the problem may be solved using the ballet (election).

 

What is the ruling of the Supreme Court on the AFSPA:

 

• The Supreme Court of India revoked the military forces' protection from prosecution under the AFSPA on July 8, 2016, in a landmark decision:
• Excessive force is prohibited: During counter-insurgency operations in regions designated as disturbed under the AFSPA, army and paramilitary personnel are prohibited from using excessive and retaliatory force.
• Criminal courts now have jurisdiction over alleged security force excesses that were previously protected by AFSPA's blanket immunity.

 

• Equality before the law: According to the court, it makes no difference whether the victim was a regular person, a militant, or a terrorist, or whether the aggressor was a regular person or the state. The legislation is the same for both and applies to both equally.

 

• The provisions of the Armed Forces (Special Powers) Act, as well as the ostensible immunity it grants to the use of force "even to the point of causing death," are not impenetrable.

 

• Rule of law preservation: Such legal protection must surrender to greater human rights principles, and the use of disproportionate or retaliatory action should be thoroughly investigated. This is necessary for the country's democracy and rule of law.

 

What is AFSPA's current status:

 

• AFSPA is now in effect in the states of Jammu and Kashmir, Assam, Nagaland, and parts of Arunachal Pradesh and Manipur.
• When insurgencies have subsided and governments have gained confidence in controlling the region with their own police force, the statute has been abolished.
• In 2015 and 2018, the Centre abolished AFSPA from Tripura and Meghalaya, respectively.

 

• AFSPA was also partially lifted from Arunachal Pradesh by the Central Government.

 

What are the alternatives:

 

• Repeal of AFSPA: The Jeevan Reddy Committee recommended repealing AFSPA and incorporating some of its provisions into other laws, such as the Criminal Procedure Code, which protects forces.
• Amend AFSPA: The Act's flaws, which stem from ambiguous definitions of terms like "disturbed," "dangerous," and "land forces," must be addressed to ensure better clarity.

• Create district-level committees with representatives from the army, administrators, and the general public to report, assess, and track grievances in that area.

• There should be no delay in any investigation, and if there is, the reasons for the delay should be given to the victims. In addition, all cases of human rights violations should be investigated quickly.

 

Conclusion:

• Even after 60 years of enforcement, AFSPA has not been able to achieve its goals.
• Human rights violations done in the name of AFSPA cannot be tolerated, thus instead of enforcing the oppressive Act, the government should take a scientific and compassionate approach to solving the socio-economic problems of the troubled areas.

Tags : internal security