ARMED FORCES SPECIAL POWERS ACT (AFSPA)
— AFSPA allows for the armed forces to be conferred with ‘special powers’, in any region designated as a ‘disturbed area’, either by the Centre or the Governor of a State or the Administrator of a Union Territory. AFSPA, in general, has not helped the Indian Army in the North-East to a greater extent as was expected.
— Section 3 gives power to the government to declare certain parts of the country as ‘disturbed areas’ and Section 4 allows an officer of the armed forces to ‘fire upon or otherwise use force, even to the causing of death’, against persons breaking the law or lawful orders, as per the conditions stated in the Act. This power is meant to be used for ‘the maintenance of public order’. The section also empowers the Army to arrest persons, enter premises and conduct search and seizure without a warrant from any authority. By virtue of Section 6, protection is granted to ‘persons acting under (the) Act’.
— The statute does not even require that the acts, to qualify for protection, should be one done in good faith, a rider that the law adopts in several other enactments. The cumulative effect of these provisions creates a kind of military regime in the AFSPA-declared areas. Tenure of the law is often extended mechanically.
HISTORY
— The foundational legislation for AFSPA was promulgated by the colonial British government in an attempt to stifle the Quit India movement in 1942. It was then titled the Armed Forces (Special Powers) Ordinance, 1942.
— After Independence, at a time when the Partition had just hurled India into searing internal unrest, the ordinance was converted into an Act, which was initially only supposed to remain in force for a year, but was only repealed in 1957.
— A few years into Independence, the government of India was faced with pockets of insurgency in the Naga district, along the borders of Burma. The resistance had taken a form of a fight for independence from the Indian state by 1954. In light of these developments, ‘The Armed Forces (Assam and Manipur) Special Powers Act’ was passed on 11 September 1958, when the Naga insurgency was at its peak and Nagaland as a State was yet to be formed. Nagaland was formed in 1963.
— According to the ‘Disturbed Areas (Special Courts) Act’, 1976 once declared ‘disturbed’, the area has to maintain the status quo for a minimum of 3 months.
— In the following decades it spread, one by one, to the other Seven Sister States in India’s northeast.
— Another one passed in 1983, applicable to Punjab and Chandigarh, was withdrawn in 1997, roughly 14 years after it came to force.
— This act was later applied in 1990 to Jammu and Kashmir and has been in force since.
WHERE IS AFSPA IN OPERATION TODAY?
— All of the states/UTs of Jammu and Kashmir, Assam and Nagaland.
— All of the state of Manipur, except the Imphal Municipal Area.
— Eastern districts of Tirap, Changlang and Longding in Arunachal Pradesh, and areas falling under Namsai and Mahadevpur police stations in Namsai district.
SOME OBSERVATIONS
— The North-East has many tribes and sub-tribes and these tribes are scattered through different states and not necessarily delineated by the state borders.
— Technological advancement in recent times also makes the logic of the 1958 statute obsolete.
— The Centre-appointed committee headed by former Supreme Court judge BP Jeevan Reddy had recommended that it be repealed and any relevant provisions to be added to the Unlawful Activities (Prevention) Act.
— Also, in an important judgment on a plea by the Extra Judicial Execution Victim Families Association (EEVFAM), the apex court ruled that the Act cannot be said to ‘provide blanket immunity’ to army personnel amidst anti-insurgency missions.
WAY AHEAD FOR INDIA
— The pragmatic approach is to keep the dialogue going, keep the conversations going. The prudent course now would be to lift AFSPA from most of the North-Eastern States, barring, maybe, some 25-30 km along the border with Myanmar and China. The J&K issue will take some more time for a complete repeal.
— The Army has the firepower and the right to respond, when under attack.
— If Punjab could see peace after AFSPA ended there in 1997, the North-East too can.
— The factions not aligned with the Constitution of India, and multiple stakeholders, who often privilege linguistic, regional, ethnic and clan identity can be brought on the table through negotiations, confidence building, providing some basic autonomy, and be invited to sign the peace accords for tactical and political incorporation.
— The agenda or some rebel groups to demand a separate Constitution and a separate flag, say, for the Naga separatists, should not be entertained.
— Tripura is a very fine example of how to repeal the AFPSA police station by police station.
— Counter-insurgency operations are full of uncertainties. Hence, intelligence should be techno-revolutionised to be more accurate.
— Mixing up religion with nationalism can have dire consequences in this region, where multiple fault lines have been endured for decades.
— We can leverage the friendship of Bangladesh and conduct joint military exercises to thwart attacks by insurgent groups in collusion with China.
— Countering insurgency in the Northeast is fraught also because of the Free Movement Regime (FMR) between India and Myanmar. India shares a 1,643 km border with Myanmar. The FMR signed between the two countries allows movement up to 16 km inside each other’s territory for trade and commerce. But it is misused by militants to smuggle drugs and arms. Here is where BSF has a role to play. Military-To-Military ties with Mynamar, intelligence sharing along with continued people-to-people contacts can help strengthen ties with Myanmar.
— AFSPA in the North-East will only weaken the Constitution and make the North-Eastern people feel humiliated and alien to India. Time perhaps has come to repeal it from the region.
— BY YOGITA KADU
