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AFSPA
Context:
- The Supreme Court has halted further proceedings on the FIR against 30 army personnel involved in a botched operation in Nagaland in 2021, which resulted in the deaths of 13 civilians.
- The Court noted that due to the Armed Forces (Special Powers) Act, 1958 in Nagaland, prosecution of army personnel requires sanction, which was declined by the competent authority on February 28, 2023.
About AFSPA:
- The Armed Forces (Special Powers) Act (AFSPA) is an Indian law that grants special powers to the armed forces in areas declared as “disturbed” due to internal conflict or insurgency.
- A “disturbed area” under AFSPA, as per Section 3, is a region declared by the Central Government, State Governor, or Union Territory Administrator where there are conflicts or disputes between different religious, racial, linguistic, or regional groups, castes, or communities.
- This declaration gives armed forces special powers to restore public order.
Important Provisions of the AFSPA Act:
Section 3:
- The power to declare an area as disturbed lies with the Governor, Administrator, or Central Government.
- This declaration is made when they believe that an area is in a disturbed or dangerous condition, necessitating the intervention of armed forces.
- The declaration can apply to either the entire State or Union Territory or specific parts of it.
Section 4:
- Armed forces personnel have specific special powers in “disturbed areas”.
- Use of Force: Officers can fire upon or use force, including causing death, if necessary for maintaining public order.
- Destruction of Structures:Officers can destroy arms dumps, fortified positions, shelters used for armed attacks, training camps, or hide-outs for armed gangs or wanted absconders.
- Arrest Without Warrant: Officers can arrest individuals without a warrant who are suspected of committing or about to commit a cognisable offence.
- They may use necessary force to effect the arrest.
- Search Without Warrant: Officers can enter and search premises without a warrant to arrest individuals, recover unlawfully restrained persons, stolen property, or arms, ammunition, and explosives believed to be unlawfully kept.
Section 7:
- Protection to Persons Acting Under the Act
- No prosecution, suit, or other legal proceeding can be initiated against anyone for actions taken under the powers conferred by the Act, except with prior sanction from the Central Government.
Areas where AFSPA is in place:
- Jammu and Kashmir continues to be under AFSPA since 1990
- It was in force in Punjab between 1983 and 1997
SC Ruling of AFSPA:
- Naga People’s Movement for Human Rights (NPMHR) vs Union of India (1997):
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- Context: This case challenged the constitutionality of AFSPA.
- Ruling: The Supreme Court upheld the constitutionality of AFSPA, emphasising its application in disturbed areas with terrorism, while ensuring enforcement with due regard to fundamental rights.
- Extra-Judicial Execution Victim Families Association (EEVFAM) vs Union of India (2016):
- Context: This case dealt with allegations of extrajudicial executions and enforced disappearances in Manipur.
- Ruling: The Supreme Court ordered a thorough investigation into allegations of fake encounters and extrajudicial killings by the armed forces, emphasising the need for accountability and transparency in enforcing AFSPA.
Important Committees related to AFSPA:
Way Forward for AFSPA:
- Address Root Causes: Focus on resolving political, economic, and social grievances driving insurgency, such as in Nagaland, through local engagement and improved development.
- Strengthen Accountability: Ensure independent investigations into human rights violations to address international concerns and build trust among local populations.
- Promote Peace through Dialogue: Prioritise confidence-building and political dialogue with insurgent groups. A phased withdrawal of AFSPA in stable areas can reduce mistrust and support peace efforts.
