Background :-  There has been a considerable amount of debate on the Armed Forces Special Powers Act (AFSPA) as long as we can remember.It has been extensively covered by both news media and print media.Views from various corners and writings by many learned man conclude that it should be repealed , yet irrespective of  who is in Government , it has not been repealed, even though few representatives of Government  are in favor to repeal AFSPA.Hence , it lets one think why it has not been repealed and will it ever be repealed ? In this context , we at UPSCTREE  tried to explore this irony , given it’s importance in public administration , it has to be inquired with due care.

Intorduction :-

• The Armed Forces (Assam and Manipur) Special Powers Ordinance came into force on May 22, 1958. It was adopted by the Indian parliament on September 11, 1958
• The AFSPA was based on a 1942 British colonial ordinance that was intended to contain the Indian independence movement  in the midst of the Second World War
• In the decade that followed, the northeast was divided into separate states to accommodate the ethnic claims of various tribal and other ethnic groups. In 1972, the AFSPA was amended to extend to all the new states
• In 1983, an almost identical law was enacted to counter militancy in Punjab state.While the law was allowed to lapse in Punjab once violence ended, a similar law has remained in force in Jammu and Kashmir state since 1990^.
• Though the law was initially intended to be a short-term measure, for five decades many areas of the northeastern states have routinely (now every six months) continued to be declared “disturbed” so that the law can remain in force.
• Irom Chanu Sharmila who is also known as the “Iron Lady of Manipur” is a civil rights activist, who has been in a hunger strike for nearly 15 years. Her primary demand to the Indian government has been the repeal of the AFSPA.

Provisions in AFSPA:-

• Section 3 of the AFSPA provides that the government can decide  ,whole or part of a state “is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers in necessary.”
• The maintenance of law and order is the responsibility of the state government under the Indian Constitution.As originally enacted, the power to declare an area to be “disturbed” was conferred only upon the state government. In 1972 the AFSPA was amended to provide that same power concurrently to the central government. An elected state government thus cannot refuse the deployment of federal armed forces.
• On the other hand, the state government has no authority to reprimand or prosecute those members of the armed forces that commit human rights violations against citizens of that state as this power is reserved for the central government
• The AFSPA provides broad powers to military officers to use force, including lethal force. Section 4(a) empowers any commissioned or non-commissioned officer in the armed forces, to:-
  

  “If he 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 prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances“

  Human rights activists say that this section of the law effectively provides security forces operating under the AFSPA with a “license to kill.”

• Section 6 of the AFSPA provides government security forces with immunity from prosecution.

Supreme Court’s  observation:-

• The AFSPA has been challenged in the courts. In 1980, a Manipuri group named the Human Rights Forum filed a public interest litigation in the Supreme Court, challenging the constitutional validity of the AFSPA. The Naga People’s Movement for Human Rights and the People’s Union for Democratic Rights also moved separate writ petitions on the same issue in 1982. However, the Supreme Court did not proceed in the matter for 15 years.
• In 1997, a five-member bench headed by Chief Justice J.S. Verma finally ruled on the petitions challenging the act. The various petitions were combined into the case of Naga People’s Movement of Human Rights, etc. vs. Union of India
• The Supreme Court upheld the Armed Forces (Special Powers) Act in its final verdict on November 27, 1997. However, while concluding that parliament had the right to enact such a law, the judges ordered measures for the protection of human rights, ruling that the armed forces should “use minimal force required for effective action” and “strictly follow the instructions contained in the list of “Do’s and Don’ts” issued by the army authorities which are binding”

Justice Jeevan Reddy Committee on AFSPA:-

• The Jeevan Reddy committee recommended that while the AFSPA should be repealed, some provisions should be incorporated into the Unlawful Activities (Prevention) Act, 1967.
• The proposed amendments include a provision for an independent “Grievances Cell” to inquire into complaints of human rights violations, and a requirement that the commander or local headquarters of the unit or appropriate police authorities furnish relevant information to the Grievances Cell within 24 hours of receiving a request.
• The recommendations are rejected by the government.

Various facet of AFSPA : –

• To sum up , AFSPA gives enough power to the army to act in disturbed areas .The core debate surrounding this act is the alleged human rights violations by Army from time to time.
• Idealism vs Realism
  • Most of the arguments against AFSPA  are idealistic in nature i.e. the arguments does not include the concerns of army , it only displays the concerns of one side, thus while journalists label it as a  ” Draconian law” or “Right to kill”  , the adjectives  are far too sensational in nature , which selectively excludes the sensitivity of the issue.
  • First principle of security is to accept the reality as it is and not what one wants it to be . Thus , Army has  taken a pragmatic stand and advocated that AFSPA  as sine qua non for counter insurgency operation in disturbed areas.
  • The disturbed areas for eg- Jammu & Kashmir or North-East region , have not been peaceful as yet due to various secessionist movements.These areas have convergence of  both India’s internal  and external security .Thus given the strategic importance of these regions and the huge international porous border , AFSPA becomes the necessary tool in the hands of Army.It is an evil but a necessary one.
  • The disturbed areas are far from peace and cross border terrorism and secessionist movements are active , thus making it hard for the Government to repeal AFSPA.
  • Retired General Bikram Singh’s Observation on AFSPA :-
    • He holds that the time is not right to repeal AFSPA.He comments that the decision  has to be taken in the backdrop of violence profile, in the backdrop of what can happen in future, in the backdrop of futuristic contours.
    • Army is there as the state govt. does not have adequate apparatus to deal with issues  that have cross-border implications .Many army men have made the supreme sacrifice to uphold the national interest and national security in these regions.
• On the contrary, it is undoubtedly clear that human rights violations have taken place and in a Free Society like India , it is necessary that this concerns are addressed too.

Conclusion:- From the above observations it is clear that , to repeal AFSPA , there are few per-requisites , such as – end of secessionist movements, effective management of border and end of cross-border terrorism.Hence , indifferent to our wish, AFSPA is going to stay in the near future. In the same vein, it will be a blunder to completely ignore the human rights issues arising out of this provision. To contain the human rights violation and to uphold national interest  is a walk on a two-edged sword,which needs perfect balancing act. Measures by Army to sensitize its soldiers and make them sensitive to the people’s cause is of paramount importance.A learned soldier with a higher degree of empathy is the necessity of the hour and it  can be achieved by the Army itself.  Soldier’s emotional intelligence profiling for sensitive posting , should be inculcated by the Army. It is often said that a good man can run a bad institution better and this is what is needed of Army  now , to  post good men  , who can exercise self-restraint in sensitive operation and see to it that human rights are not violated. From futuristic perspective, AFSPA should be repealed or replaced with a law that has greater protocols and addresses the human right needs. 

P.S :- Please note that we try to be as objective as possible in our analysis , the conclusions written in Essays and Reflections are exclusive to UPSCTREE .If you have any suggestions , kindly write to us  – upsctree@upsctree.com . Thank you.