Insurgency-related incidents in the North-East & Armed Forces Special Powers Act (AFSPA) [India’s Security]

Context: Union Home Minister Amit Shah said on Thursday that it was the government’s aim to resolve interboundary disputes in the north-east and strike a conciliation with all armed insurgent groups in the region before 2024.

About AFSPA

◼ The AFSPA grants the armed forces extraordinary powers and legal immunity to bring back order in areas designated as "disturbed" by the government.

◼ The Act in its original form was promulgated by the British in response to the Quit India movement in 1942.

◼ It was the foundation for four ordinances, including one for the “Assam disturbed areas” invoked in 1947 to deal with Partition-induced internal security challenges.

◼ The Armed Forces (Assam and Manipur) Special Powers Act, 1958, followed the Assam Disturbed Areas Act of 1955 to deal with the uprising in the Naga Hills and adjoining areas.

◼ The Act was replaced by the AFSPA for wider application.

◼ After Independence, Prime Minister Jawaharlal Nehru decided to retain the Act, which was first brought in as an ordnance and then notified as an Act in 1958.

◼ AFSPA has been used in areas where militancy has been prevalent.

◼ AFSPA has been imposed on the Northeast states, Jammu & Kashmir, and Punjab during the militancy years.

How is the AFSPA imposed?

◼ Section 3 of the AFSPA empowers the Governor of a State and the administrator of a Union Territory (UT) to declare an area “disturbed” and issue an official notification in The Gazette of India to give the Centre the authority to deploy the “armed forces in aid of the civil power”.

◼ A government considers an area “disturbed” if it perceives a threat to “public peace and tranquillity, by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”

◼ The Act is said to give unbridled power to the armed forces and the Central Armed Police Forces deployed in “disturbed areas” to kill anyone acting in contravention of the law, arrest and search any premises without a warrant and protection from prosecution and legal suits without the Central government’s sanction.

◼ It says any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces can for the maintenance of public order “fire upon or otherwise use force” after giving such due warning as he may consider necessary.

◼ It gives them powers to arrest individuals without warrants, on the basis of “reasonable suspicion”, and also search premises without warrants.

◼ The Act further provides blanket impunity to security personnel involved in such operations:

▪ There can be no prosecution or legal proceedings against them without the prior approval of the Centre.

◼ The situation is reviewed periodically for extension of the AFSPA.

◼ While the Assam and Manipur governments issue a notification in this regard, the Ministry of Home Affairs does it for Nagaland and Arunachal Pradesh, where it is applicable in Tirap, Changlang, Longding and areas falling under Namsai and Mahadevpur police stations bordering Assam.

◼ Once declared “disturbed”, a region has to maintain the status quo for a minimum of three months according to The Disturbed Areas (Special Courts) Act, 1976.

Where is AFSPA in force now?

◼ Punjab was the first state from where it was repealed, followed by Tripura (2015) and Meghalaya (2018).

◼ Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border.

◼ It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh.

◼ 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.

◼ Jammu and Kashmir too has a similar Act.

Are there safety nets?

◼ While the Act gives powers to security forces to open fire, this cannot be done without prior warning given to the suspect.

◼ In the Mon firing, it has been an issue of discussion whether the security forces gave prior warning before opening fire at the vehicle carrying coal miners, and then later at a violent mob.

◼ The Act further says that after any suspects apprehended by security forces should be handed over to the local police station within 24 hours.

◼ It says armed forces must act in cooperation with the district administration and not as an independent body.

Previous attempts to repeal AFSPA

◼ In 2000, Manipur activist Irom Sharmila began a hunger-strike, which would continue for 16 years, against AFSPA.

◼ In 2004, the UPA government set up a five-member committee under a former Supreme Court Judge.

◼ The Justice Jeevan Reddy Commission submitted its report in 2005, saying AFSPA had become a symbol of oppression and recommending its repeal.

◼ The Second Administrative Reforms Commission, headed by Veeerapa Moily, endorsed these recommendations.

◼ Former Home Secretary G K Pillai too supported the repeal of AFSPA, and former Home Minister P Chidambaram once said the Act, if not repealed, should at least be amended.

▪ But opposition from the Defence Ministry stalled any possible decision.

◼ The UPA set up a cabinet sub-committee to continue looking into the matter.

▪ The NDA government subsequently dropped the sub-committee and also rejected the findings of the Reddy Commission

Opposition from State governments

◼ While the Act empowers the Centre to unilaterally take a decision to impose AFSPA, this is usually done informally in consonance with the state government.

◼ The Centre can take a decision to repeal AFSPA after getting a recommendation from the state government.

◼ However, Nagaland, which has freshly recommended a repeal, had raised the demand earlier too, without success.

◼ The Centre had also imposed AFSPA in Tripura in 1972 despite opposition from the then state government.

What has been the social fallout?

◼ Nagaland and Mizoram faced the brunt of AFSPA in the 1950s, including air raids and bombings by the Indian military. ▪ Allegations have been made against security forces of mass killings and rape.

◼ It is in Manipur that the fallout has been perhaps best documented.

▪ The Malom massacre in 2000, and the killing and alleged rape of Thangjam Manorama led to the subsequent repeal of AFSPA from the Imphal municipal area.

◼ AFSPA has established a culture of impunity that allow military forces and governments to completely disregard human rights and the rule of law.

◼ Allegations of human rights abuses under AFSPA include personnel committing rape, using human shields on army vehicles, fake encounters and disappearance while in custody.

◼ Human rights activists have said the Act has often been used to settle private scores, such as property disputes, with false tip-offs provided by local informants to security forces.

Have these excesses been probed?

◼ In 2012, the Extrajudicial Execution Victim Families Association of Manipur filed a case in the Supreme Court alleging 1,528 fake encounters between 1979 and 2012. Activists said these peaked in 2008-09.

◼ The Supreme Court set up a three-member committee under former judge Santosh Hegde and including former Chief Election Commissioner J M Lyngdoh and former Karnataka DGP Ajay Kumar Singh.

◼ The committee investigated six cases of alleged fake encounters, including the 2009 killing of 12-year-old Azad Khan, and submitted a report with the finding that all six were fake encounters.

◼ The Court set up a special investigation team that included five CBI officials and one National Human Rights Commission member.

◼ The CBI booked Army Major Vijay Singh Balhara in Khan’s death in 2018, but there has been no prosecution against security forces in other cases.

◼ Activists note that AFSPA creates an atmosphere of impunity among even state agencies such as the Manipur Police and their Manipur Commandos, believed to be responsible for most encounters in the state, some of them jointly with Assam Rifles.

◼ The SIT has investigated 39 cases involving deaths of 85 civilians so far, and filed the final reports in 32 cases.

◼ While 100 Manipur police personnel have been indicted, no action has been taken against Assam Rifles personnel with the exception of the Khan killing