Armed Forces (Special Powers) Act (AFSPA)

• IAS NEXT, Lucknow
• 28, Dec 2021

Reference News:-

The Centre has decided to constitute a committee to study the possibility of withdrawing the Armed Forces (Special Powers) Act (AFSPA) from the State.

• The committee will be headed by the Additional Secretary (Northeast) in the Union Home Ministry and will include Nagaland’s Chief Secretary and Director-General of Police.
• The committee would submit its report within 45 days.
• The withdrawal of the “disturbed area” notification and the AFSPA from Nagaland will be based on the recommendations of the committee.

What’s the issue?

A group of daily wage workers who were returning to their village were killed by 21 Para Commando unit, reportedly after information that some NSCN(K) terrorists were travelling in the area.

Following the killings, the Chief Minister Neiphiu Rio had demanded the repeal of the Armed Forces (Special Powers) Act.

• Rio criticised the Union Government for extending the “disturbed area” tag for Nagaland every year.
• He reminded the Centre of the criticism India had earned globally for the “draconian Act”.

How has the Centre responded to the incident?

A court of enquiry will initiate disciplinary proceedings against the Army unit and Army personnel, who are directly involved in the Oting incident. The identified persons who will face the enquiry will be placed under suspension with immediate effect.

• The State government would provide jobs to the next of kin of the deceased.
• Government jobs will be given on compassionate grounds on the basis of eligibility.

Background:

The Ministry of Home Affairs had, in Jube 2021, declared the entire State of Nagaland as a “disturbed area” for six more months under the Armed Forces (Special Powers) Act (AFSPA).

• MHA said the area comprising the whole of Nagaland is in such a “disturbed and dangerous condition” that the use of armed forces in aid of the civil power is necessary.

What does the AFSPA mean?

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

Powers given to armed forces:

1. 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.
2. If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
3. 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.

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: (a) AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967; (b) The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and (c) 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.

Naga killings point to AFSPA pitfalls:

The AFSPA gives the armed forces the licence to kill. And when they carry out such shameful operations without keeping the local police in the loop, as has been the practice for long, it gives the message that the Centre just does not care about the peace process.

Naga People’s Movement for Human Rights vs Union of India- SC’s 1997 verdict laid down guidelines for use of AFSPA:

• The 1997 judgment of a Constitution Bench held that the power under Section 4(a) of the AFSPA to use deadly force should be employed only under “certain circumstances”.
• The court noted that the “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
• These preconditions include a declaration by a high-level authority that an area is “disturbed”. The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
• The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.