The AFSPA issue in the northeast

The Armed Forces Special Power Act (AFSPA) was passed by the Indian Parliament in 1958. It was first introduced by the British Raj as an ordinance in 1942 to scuttle the Quit India Movement. However, even after Independence, India decided to keep it in force. In 1958, an Act was passed in this regard, which was applicable to the Naga Hills, which was then a part of Assam.

Unfettered powers of AFSPA

The Act gives unfettered powers to the armed forces and the Central armed police forces deployed in “disturbed areas” to kill anyone who is acting in a way to create disharmony in the society. It also empowers them to search any place without a warrant and also gives them insulation from prosecution and legal rights.

Let's have a look at a few provisions of the Act which grant powers to the armed forces:

a. if he (officer of the armed forces) is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area.

b. enter and search without warrant any premises to make any arrest

Also Read: BJP retains power; AFSPA, prohibition partially lifted in Manipur in 2022

The Controversy

Many activists are not happy with the law as it gives unhindered rights to the forces to cause deaths. This results in human rights violations. There are allegations that there could be fake encounters in the name of “protecting public order” and the forces going unscrutinised.

Botched-up Army operation in 2021

In December 2021, as many as 15 civilians died in an Army operation in Nagaland that went awry. The Army fired at a van carrying coal miners from the Tiru area. Since then, the calls for withdrawing the Act have seen a major fillip.

Other instances in history

In the 1950s, Nagaland and Mizoram faced the maximum onslaught of AFSPA. There were allegations against security forces of mass killings and rape.

The Malom massacre of 2000 is a renowned case. On November 2, 2000, a convoy carrying men from the Assam Rifles came under gunfire near Malom on the outskirts of Imphal, capital of Manipur. As a retaliatory measure, the troops shot at civilians at a nearby bus stop leaving 10 dead. Another case is the Thangjam Manorama 'rape and murder'. 32-year-old Thangjam Manorama was “raped and murdered”, by a group of Assam Rifles troopers at her Imphal residence in 2004. The paramilitary force claimed that she was a member of the banned insurgent group, the People’s Liberation Army.

What are the safety aspects the armed forces have to follow?

Though it is a given that the powers conferred on the armed forces are sweeping in nature, it is to be noted that prior warning has to be given to the suspects who the armed forces think are disturbing harmony in the society and want to target them. Additionally, as per the Act, the suspect has to be handed over to the nearest police station within a span of 24 hours.

Protests against the draconian law

As a mark of protest against this law, an activist named Irom Sharmila began a hunger strike in 2000, which continued for 16 long years.

The then Union government, the United Progressive Alliance (UPA), in 2004, constituted a 5-member committee over AFSPA, headed by a former Supreme Court judge. The Justice Jeevan Reddy Commission, which submitted its report in 2005, was critical, emphasising that AFSPA had become a vindictive tool and batted for its withdrawal.

However, the recommendations of the committee were not implemented.

Supreme Court’s view on the matter

Though the top court upheld the validity of the law in one of its judgements in 1998, it has also expressed its concerns over the law.

In this regard, it said: "If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion, that they are the 'enemy', not only the rule of law, but our democracy would be in grave danger".

Notably, it had also constituted at least two committees to look into alleged excesses.

Incidentally, a committee that also had as many as five CBI officials and a member from the National Human Rights Commission booked Army Major Vijay Singh Balhara in one case of AFSPA-related killings. However, reports state that there has been no prosecution against security forces in other cases.

Status of the Act

The Act has been withdrawn in Tripura since 2015. In Meghalaya, in which the Act stood valid for 27 years, saw it revoked in 2018. Incidentally, Punjab was the first state from which it was withdrawn in 1997.

However, it is in force in a few parts of Assam, Nagaland, Manipur and Arunachal Pradesh.