The Indian government extended AFSPA in northeastern states, empowering military for security and stability, but raising concerns over human rights violations, accountability, and prolonged military presence. Reforms are suggested for balanced security and democracy through ensuring accountability and Human Rights Compliance.

Why in the News?

The Ministry of Home Affairs recently extended the Armed Forces (Special Powers) Act, 1958 in parts of Manipur, Arunachal Pradesh, and Nagaland for another six months.

About AFSPA, 1958

It is a special law granting extraordinary powers to the military to maintain law and order.

AFSPA has been applicable in Manipur since 1981.

Objective: To empower the armed forces to operate in "disturbed areas" where public order is seriously threatened.
Currently, AFSPA is in effect in parts of Nagaland, Assam, Manipur, and Arunachal Pradesh.
- It was lifted from Tripura in 2015, Meghalaya in 2018 and Mizoram in 1980s.
AFSPA also remains in force in Jammu and Kashmir through the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.

Key Provisions of the Act

Declaration of Disturbed Area (Section 3): Governor, Administrator, or Central Government can declare part or whole state/UT as "disturbed" if they believe the situation requires armed forces to aid civil authorities.
Special Powers of the Armed Forces (Section 4): Grants special powers to armed forces personnel in areas declared as "disturbed" -
- Use force, including shooting to kill, against anyone violating law.
- Arrest and Enter/Search premises without warrant based on suspicion.
- Prohibit assembly of 5 or more persons.
- Destroy any arms dump, fortified position from which armed attacks can be made or any training camp for armed volunteers
Immunity to Armed Forces personnel (Section 6): Protection from prosecution and legal suits for acts under AFSPA without the Central government's sanction.
Treatment of arrested person: Armed forces required to hand over the person to the nearest police "with least possible delay."

Landmark Judicial Decisions

Naga People's Movement of Human Rights v. Union of India (1997): Validated AFSPA constitutionally with safeguards on use of force and immunity.
Extra-Judicial Execution Victim Families Association v. Union of India (2016): Immunity under Section 6 is not absolute; accountability for excessive force is mandatory.
Sebastian M. Hongray v. Union of India (1984): Security personnel can be held accountable despite AFSPA immunity.

Critical analysis of AFSPA

Arguments in Favor of AFSPA

Arguments Against AFSPA

National Security: Empowers armed forces to swiftly tackle insurgency and protect India's sovereignty in conflict-prone and border areas like the North East and J&K.
Aids Civil Administration: Allows quick deployment of military support when civil authorities are unable to maintain law and order in "disturbed" regions.
Prevents Legal Paralysis: Officers can arrest, search, or use force without warrants, preventing delays that insurgents could exploit.
Accountability Through "Sanction Clause": Central government approval is required to prosecute personnel safeguarding them from frivolous or politically motivated cases.
Judicial and Legislative Validation: Supreme Court ruling (Naga People's Movement of Human Rights v. Union of India (1997)) affirms AFSPA's constitutionality, emphasizing that armed forces act in aid of, not above, civil power.
Proven Role in Stabilizing Regions: Contributed to reducing insurgency in states like Mizoram, Tripura.

Violation of Fundamental Rights: Sections allowing shoot-to-kill and legal immunity clash with Articles 14, 21, and 22 on equality, life, and liberty.
Lack of Accountability: Sanction clause effectively shields security personnel from prosecution, creating a culture of impunity.
Prolonged Militarization: Areas remain under military control for decades without a defined time limit, normalizing conflict conditions and anti-Army sentiment.
Federalism and Civil-Military Friction: Central deployment undermines state autonomy and demoralizes local police forces, leading to tension.
Damages India's Democratic Image: Continued use of AFSPA contradicts international human rights commitments under Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture.
Allegations of Human Rights Abuses: Numerous reports allege cases of extrajudicial killings, torture, and sexual violence.

Way Ahead

Restrict & Phase Powers: Apply AFSPA only in disturbed districts; gradually reduce powers as situations improve.
Amend Sections for Accountability: Amendments may include provisions to prevent extrajudicial killings; present arrested persons before magistrates within 24 hours and limit immunity while establishing oversight for prompt investigations.
Alternative Policing: Use CRPF/state police for routine law and order; reserve army for high-intensity conflicts.
Human Rights Compliance: Ensure military operations respect human rights; strengthen professionalism in counterinsurgency.
Local Trust & Participation: Involve civil society, bureaucracy, and army in local development to gain public support.
Follow Committee Recommendations:
- Jeevan Reddy Committee (2005): Repeal AFSPA; restrict prolonged army deployment; merge powers into Unlawful Activities (Prevention) Act, 1967.
- Second ARC (2007): Repeal AFSPA after stakeholder consultations.
- Santosh Hegde Committee (2013): Investigate unlawful encounters; prevent misuse of powers.
- Justice J.S. Verma Committee (2013): It recommended for immediate review of AFSPA and if any officer of armed forces commits sexual violence against women he should be dealt under ordinary criminal law.

Conclusion

AFSPA, while vital for counterinsurgency in disturbed areas, raises concerns over human rights and accountability. A balanced approach restricting its scope, ensuring oversight, and strengthening local governance can safeguard security without compromising democratic values.