Why Debate Over Controversial AFSPA Has Rekindled After Nagaland Firing?

Armed Forces (Special Powers) Act (AFSPA) is a Parliamentary act that grants special powers to the Indian Armed Forces and the state and paramilitary forces in areas classified as “disturbed areas”.

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As many as 14 civilians were killed in Nagaland's Mon district by Army's elite 21 Para Special Forces after they 'mistook' a group of workers for militants and opened fire on Saturday, December 4. The Indian Army called it a 'case of mistaken identity', however, the local residents have firmly rejected the claim.

One army personnel and seven more people died after protestors clashed with soldiers in the area. Later, one more civilian was killed by forces after a mob attacked an army camp.

Heart-wrenching visuals emerged from the shattered families burying their close ones in a mass grave. In an emotional ceremony, men and women were seen crying their hearts out while other relatives comforted them.

Tension prevailed in the state for the fourth consecutive day on Tuesday with authorities shutting down the internet services and imposing curfew to prevent any law and order situation. Home Minister Amit Shah said that the Special Investigation Team (SIT) will probe the incident in a month's time. He also asserted that all agencies must ensure such incidents do not happen again in the future.

The violence is being seen as one of the deadliest escalations in recent times in the northeastern state. It has once again rekindled the debate over the controversial Armed Forces Special Powers Act (AFSPA), with people as well as certain politicians demanding its revocation.

Nagaland Chief Minister Neiphiu Rio said that he has requested the central government to remove the draconian law in the state as it is a 'black spot on the image of India'.

Meghalaya Chief Minister Conrad Sangma said that he is deeply saddened by the killings in Oting village and has demanded to revoke AFSPA from Nagaland.

AIMIM President and Lok Sabha MP Asaduddin Owaisi and Congress leader Pradyut Bordoloi have also raised questions over the controversial law.

Raijor Dal President, opposition in Assam, Akhil Gogoi too condemned the killings. He said that the National Investigation Agency (NIA) should investigate the unfortunate incident and declare it as a 'terrorist act'. "Nagaland killings are a caricature of the Indian Government. Revoke AFSPA," Gogoi tweeted.

What Is AFSPA?

Armed Forces Special Powers Act (AFSPA), 1958 is an act of the Indian Parliament that grants special powers to the Indian Army to maintain public order in "disturbed areas".

As per the Disturbed Areas (Special Courts) Act, 1976 once declared 'disturbed', the area has to maintain the status quo for at least three months. One such act passed on September 11, 1958 was applicable to the Naga Hills, then part of Assam. Later, it spread to the other Seven Sister States in India's northeast. Currently, it is in force in the states of Assam, Manipur, Nagaland, Longding, Changlang, and Tirap districts of Arunachal Pradesh.

Another such act passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, nearly 14 years after it came into existence. In 1990, an act passed was applied to Jammu and Kashmir and has been in force since.

History AFSPA (Assam and Manipur)

In 1952, the Naga National Council (NNC) reported that it conducted a "free and fair plebiscite" in which about 99 per cent of Nagas voted for a 'Free Sovereign Naga Nation'. There was a boycott of the first general election of 1952 which later extended to a boycott of government schools and officials.

In 1953, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills and increased police action against the rebels to deal with the situation. When the condition deteriorated, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, providing a legal framework for the paramilitary troops and the armed state police to deal with the insurgency.

But the two groups could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government "The Federal Government of Nagaland" in 1956. The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by then President Dr Rajendra Prasad on May 22, 1958. Later, it got replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958 on September 11, 1958.

The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowered only the State Governors and the Administrators of the Union Territories to declare areas in the state or the UT as 'disturbed'. The territorial scope of AFSPA also expanded to the seven northeastern states - Assam, Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura. Additionally, the words "The Armed Forces (Assam and Manipur) Special Powers Act, 1958" were substituted by "Armed Forces (Special Powers) Act, 1958".

According to the AFSPA, in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:

  • After giving due warning, fire upon or use other kinds of force even if it causes death, against the individual who acts against law or order in the disturbed area for the maintenance of public order.
  • Destroy any hide-outs, arms dump, prepared or fortified position or shelter or training camp from which the armed volunteers make armed gangs or ared attacks or absconders wanted for any crime.
  • To arrest without a warrant any person who has committed cognizable offences or is suspected and may use force if required for the arrest.
  • To enter and search any premise to make such arrests or recover any person wrongfully restrained or any arms, ammunition, or explosive materials and seize it.
  • Search and stop any vessel or vehicle reasonably suspected of carrying weapons or a person.
  • Paramilitary troopers have legal immunity for their actions, and there can be no prosecution, suit or any other legal proceeding against any person acting under this law.

AFSPA Violates Human Rights

In 1991, when India presented its second periodic report to the United Nations Human Rights Committee, members of the UNHRC asked various questions about the validity of this Act. They questioned the constitutionality of the Act under the country's law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On March 23, 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law "dated and colonial-era law that breaches contemporary international human rights standards."[25]

On March 31, 2012, the UN asked India to revoke the Act, saying it had no place in the democracy. Human Rights Watch has criticized the act as a "tool of state abuse, oppression, and discrimination". The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is part of the issue.

What Does the Supreme Court Say About AFSPA?

The Supreme Court said that any encounter carried out by the troops in the garb of AFSPA should be subjected to proper inquiry. "It does not matter whether the victim was a common individual or a militant, nor does it matter whether the aggressor was an ordinary person or the state. The law is same for both and is equally applicable to both. This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties," the Apex Court said.

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Editor : Palak Agrawal
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Creatives : Tashafi Nazir