AFSPA: A Necessity or a ‘No-No’

In 2007, the fifth report on public order of the Second Administrative Reforms Commission recommended that AFPSA be repealed,

Editorial
December 14, 2021
6:33 pm

Even after over three years after CBI was directed to investigate 1,528 alleged ‘encounter killings’ by the army and police in Manipur during 2000-12, ‘nothing has happened’. The killing of 14 Indian citizens in Nagaland by Indian armed forces has once again raised the legitimacy of the ‘draconian’ Armed Forces (Special Powers) Act (AFSPA), 1958.

It was a clear example of what happens when intent by law does not translate into action on the ground.

AFSPA aims to bring order to ‘disturbed’ areas defined by the Disturbed Areas (Special Courts) Act, 1976, a law modeled out of the Armed Forces (Special Powers) Ordinance, 1942, brought about by the British to tackle the Quit India movement.

The law empowers armed forces, down to non-commissioned officers, to use force and even enables them to shoot on some in suspicion for the “maintenance of public order”. It also grants soldiers executive powers to enter premises, search, and arrest without a warrant.

However, incidents like that happened in Nagaland has raised the question of its veracity of the AFSPA. The exercise of these extraordinary powers by armed forces has often led to alleged fake encounters and human rights violations in disturbed areas.

We also must not forget the sacrifices of Manipur’s Irom Sharmila. Going on a hunger strike from November 2000 to August 2016, her fasting was the outcome of an incident in the town of Malom in Manipur, where 10 civilians including her brother waiting at a bus stop were allegedly gunned down by Assam Rifles. But AFSPA continues to be in Manipur (excluding capital Imphal).

In 2004, following the alleged custodial death of a woman arrested by the armed forces and ensuing protests, the Centre had constituted a committee headed by a former Supreme Court judge, Justice BP Jeevan Reddy, to review AFSPA.

A year later in 2005, this committee recommended that AFSPA be repealed, highlighting that the Act has become ‘a symbol of hate and an instrument of discrimination and high handedness’.

In its report, the committee said: “It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). For that purpose, an appropriate legal mechanism has to be devised.”

However, the Centre has not accepted the report.

In 2007 also, the fifth report on public order of the Second Administrative Reforms Commission recommended that AFPSA be repealed, , adding it would be more appropriate to recommend insertion of appropriate provisions in the Unlawful Activities (Prevention) Act (UAPA).

Later in 2016, in a landmark ruling, the Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA, saying, “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both … This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.”

However, the incident like Nagaland has brought back the memories of the gory history that AFSPA carries with it. That’ why instead of engaging in any more debate on how to make AFSPA safe, the need of the hour possibly is to review AFSPA once and for all.