[Editorial Analysis] Centre extends AFSPA for six more months

Mains Paper 3: Defence and Security
Prelims level: AFSPA
Mains level: Government Policies and Interventions

Context:

• Nagaland’s AFSPA has been extended for the 6 more months.

• The Center is considering the partial abolition of the Special Authority Act of the Armed Forces of Assam and Arunachal Pradesh.

• The Supreme Court recently ordered the CBI to establish a Special Agent Team (SIT) to investigate allegations of extrajudicial killings in Manipur.

Brief walkthrough AFSPA

• It empowers the military, state and central police to kill homes, search homes, and destroy property that is likely to be used by armed groups in areas that the Interior has identified as “disturbed.”

• AFSPA is called when a militant or riot incident occurs and India’s territorial integrity is at stake.

• Security forces can also commit identifiable crimes, or “attempt to commit identifiable crimes” and “arrest unwarranted persons,” also on the basis of “reasonable suspicion.”

• It also grants security forces legal immunity for actions in disturbed areas.

• While the military and government have demonstrated the need to fight armed groups and rebellions, critics have pointed out possible crime-related human rights abuses.

Main provisions of the AFSPA Law

The main features of the AFSPA Law are as follows.

• The Governor and the Central Government have the authority to declare some or all of the state as disturbed areas.

• Necessary for interruptions in terrorist activity, activities that may affect India’s sovereignty, or activities that may violate the national flag, national anthem, or the Constitution of India.

• Section (3) of the AFSPA stipulates that if the Governor publishes an official notice in the Indian Bulletin, the central government has the authority to use the armed forces to support civil authority. When a region is declared “disturbed,” the Disturbed Area Act of 1976, requires that the status quo be maintained for at least three months.

• Section (4) of the AFSPA gives army officers special authority to shoot people suspected of violating the law, including gatherings of five or more, and carrying weapons. The only condition is that the officer must warn about the firing.

• Security forces can arrest anyone without a warrant and conduct a search without consent. As soon as a person is detained, he must be handed over to the nearest police station as soon as possible. Prior consent of the central government is required to criminally charge.

Criticism of AFSPA

• The law does not protect or endorse human rights. This can be demonstrated in the case of prison rape and the killing of Tanjam Manorama by Assam Rifles in 2004.

• The law is strengthening its military approach to security, which has proven to be inefficient as well as counterproductive in addressing security challenges.

• The absolute authority of the army to shoot with a view to crimes as basic as suspicion and command violation.

• The ability to shoot with sight violates the fundamental right to life, making soldiers on the spot a judge of the values of various lives and people, and is merely at the discretion of the officer.

• The power of arbitrary arrest and detention given to the military violates the fundamental rights set out in Article 22, which provides for protective and criminal detention.

• The Supreme Court clearly states that those arrested must appear in court within 24 hours of the FIR. However, these conditions are clearly ignored.

• The greatest anger at AFSPA comes from the exemptions given to the military. No prosecution, proceedings, or other legal proceedings may be initiated without the prior consent of the central government. This exemption, which protects guards and sometimes facilitates unjustified decisions by the military, is clearly questionable.

• Right to life and liberty under Article 21 and certain rights under Article 20 even during a state of emergency. Cannot be stopped. However, the absolute power given to the army eliminates the rights inherent in the basic rights, and all power lies with the officer.

• CBI’s previous intervention in face-to-face killings went nowhere. For example, consider the Pathribal murder case. Five days later, Indian Army soldiers claimed to have neutralized the five “foreign militants” who caused the Pathribal massacre. Investigations have revealed that it was a local man who played no role in the killing of Pathribal. Subsequent proceedings passed the court and CBI.

• The CBI’s indictment provided evidence that five soldiers were found guilty of a “cold-blooded murder.” But then the SC said in a 2012 ruling that the military could choose to prosecute these men in civil court or in military court. The military chose the latter and ended the case in 2014 due to lack of evidence.

Recommendation:

• There is a clear and present danger of AFSPA becoming a symbol of oppression and hostage to previous human rights violations if the demands of the regions affected by terrorism and insurgency are not heard and their grievances redressed. Therefore, the status quo is no longer an acceptable solution.

• A message must be sent out to the people of disturbed stated like the Manipur, Jammu and Kashmir that the government is willing to address their injustice, by making necessary changes to the existing law.

• The army fights high-intensity conflicts and people are the centre of gravity. Therefore there must be support from the people of the region to the armed forces to fight terrorism and insurgent activities. The armed forces must build the necessary trust factor amongst the local populace to ensure their support in countering insurgency.

• The existence of AFSPA in Jammu and Kashmir is mainly to fight the proxy war being waged by external agencies and therefore such tough stringent laws are required to be given to the armed forces to act at when the need arises. But, there have to be enough measures to be taken to repeal some of the powers when the situation simmers down.

• Involvement of the state bureaucracy, army and the grass-root civil society organisation in the developmental activities of the state. This will make the army ‘pro-development than a mere ‘law and order’ agency.

• The security forces and the government should fast-track existing cases and ensure speedy justice to victims by prosecuting the guilty. They should adopt a transparent process in place of the current opaqueness to deal with allegations of human right
violations by the forces.

• The government should consider the imposition and lifting of AFSPA on a case by case basis and limit its application only to few disturbed districts instead of applying it for the whole state.

• The government and the security forces have to abide by the guidelines set out by – The Supreme Court, Jeevan Reddy Commission, Santosh Hegde Committee and the NHRC.

Conclusion

• As the CBI now investigates the Manipur encounter killings, the Supreme Court must ensure that the probe reaches its logical conclusion and it should be insulated from political pressures. The judicial intervention has done a lot to push for accountability in conflict areas, to turn the conversation back to basic democratic and human rights. But progressive rulings by the judiciary can only go so far when they are constantly buffeted against attitudes in the government and the Army, which would preserve the status quo.

• It is high time that sincere and concerted efforts are made continuously by the four stakeholders — civil society, the Armed Forces, the States and the Government of India to find a lasting and peaceful solution to the festering problem, with a little consideration from all quarters. It is never too late to bring peace and harmony in society. The recent SC verdict is likely to have far-reaching consequences in places where security forces have been insulated by AFSPA to carry out counter-insurgency operations.

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Prelims Questions:

Q.1) With reference to the Rashtra Raksha Samparpan Parv, consider the following statements:

1. Light Combat Helicopter (LCH) is designed and developed by DRDO.

2. The Prime Minister started the National programme of Simulation Training for NCC cadets with the aim to scale up simulation training facilities for all the three wings of NCC.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: B

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