again ?( Recently, the Centre declared the whole of Nagaland as a “disturbed” area under the Armed Forces (Special Powers) Act, 1958, for a further period of six months.: in News )In the notification, Ministry of Home Affairs said the central government is of the opinion that the area comprising the whole state of Nagaland is in such a “disturbed and dangerous condition” that the use of armed forces in aid of the civil power is necessary. Nagaland has been under AFSPA for almost six decades now and it was not withdrawn even after a framework agreement was signed on August 3, 2015, by Naga insurgent group National Socialist Council of Nagaland (Isak Muivah) General Secretary Thuingaleng Muivah and government interlocutor R.N. Ravi in the presence of Prime Minister Sri Narendra Modi. The decision to maintain the status quo in Nagaland regarding coverage of AFSPA, a law slammed by many civil society groups as “draconian”, comes even as the insurgency has shown a declining trend in the state. According to Home Ministry data, violent incidents have fallen from 77 in 2014 to 19 in 2017, while extremists’ killing slid from 296 to 171. On March 31 last year, the Home Ministry withdrew AFSPA totally from Meghalaya as well as 8 of the 16 police stations in Arunachal Pradesh where it had been in force for the past few decades.The Home Ministry has underlined that incidents of insurgency in the northeast region were down by 96 per cent from the levels recorded in 1997.
Find the Official Docs of India at MHA site: the following for presentAFSPA-1958-28
NOTIFICATION FOR “DISTURBED AREAS” IN NORTH EASTERN STATES UNDER AFSPA ISSUED BY CENTRAL GOVERNMENT
The Armed Forces (Special Powers) Act, 1958-Notification of Disturbed Areas-State of Nagaland dated 30.06.2020NEdiv_Nagaland_07022020_2
State of Assam dated 21.08.2020AFSPA_25082020_0
State of Manipur dt. 06.01.2020NEdiv_AFSPAManipur22012020
State of Arunachal Pradesh dated 01.10.2020AP_AFSPANotification01102020_05102020
The AFSPA (armed forces Special Powers act 1958)– like many other controversial laws, is also from the colonial origin. The AFSPA was first enacted as an ordinance in the backdrop of Quit India Movement launched by Mahatma Gandhi in 1942. A day after its launch on August 8, 1942, the movement became leaderless and turned violent at many places across the country. Leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel and a host of others had been put behind the bars. Shaken by the massive scale of violence across the country, the then Viceroy Linlithgow promulgated the Armed Forces (Special Powers) Ordinance, 1942. This Ordinance practically gave the Armed Forces a “license to kill” when faced with internal disturbances. On the lines of this ordinance, the Indian government promulgated four ordinances in 1947 to deal with internal security issues and unrest arising due to partition in four provinces Bengal, Assam, East Bengal and United Provinces.
Armed Forces (Special Powers) Act, 1958 (AFSPA)The Act came into force in the context of increasing violence in the North-eastern States decades ago, which the State governments found difficult to control.AFSPA gives armed forces the power to maintain public order in “disturbed areas”. They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law.If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
AFSPA in Northeastern India:Nagaland has been under AFSPA for almost six decades now and it was not withdrawn even after a framework agreement was signed on August 3, 2015, by Naga insurgent group National Socialist Council of Nagaland (Isak Muivah) General Secretary Thuingaleng Muivah and government interlocutor R.N. Ravi.It also remains in force in Assam, most of Manipur, and three districts and areas falling under the jurisdiction of four police stations in Arunachal Pradesh.The AFSPA gives the military sweeping powers to search and arrest, and to open fire if they deem it necessary for “the maintenance of public order”, and to do so with a degree of immunity from prosecution.The Home Ministry has underlined that incidents of insurgency in northeast region were down by 96 per cent from the levels recorded in 1997.
What is Armed Forces Special Powers Act (AFSPA)?
- The Armed Forces (Special Powers) Act-(AFSPA) was passed on September 11, 1958 to help the army in tackling the disturbed areas of the Northeast India.
- AFSPA was implemented in the Kashmir amid increase in the insurgency in 1990.
- Presently, AFSPA, 1958 is operational in entire States of Assam, Nagaland, Manipur (except Imphal Municipal area), three districts namely Tirap, Changlang and Longding of Arunachal Pradesh and the areas falling within the jurisdiction of the 8 police stations in the districts of Arunachal Pradesh, bordering the State of Assam.
- AFSPA is levied only in those areas which have been declared as disturbed areas. Army and armed forces are sent in the area only after the implementation of this law.
- As per the Section (3) of the AFSPA, it is mandatory to seek the opinion of the state government that whether a area is disturbed or not. If a area is declared as the disturbed area ,it will be under the control of special forces for at least 3 months.
What is a “disturbed area” and who has the power to declare it?
Power to declare areas to be disturbed areas. (Section 3)
Power to declare areas to be disturbed areas.If, in relation to any State or Union territory to which this Act extends, the Governor of that State or the Administrator of that Union territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.]A disturbed area is one which is declared by notification under Section 3 of the AFSPA. An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.
The Central Government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area. A suitable notification would have to be made in the Official Gazette. As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments. The notification declaring Manipur and Assam as “Disturbed Areas’ has been issued by the State governments. For Nagaland, the notification is issued by the MHA.
When a state or region declared is a disturbed area? its a matter of public safety, When differences in the communities arise on the basis of race, religion, language, region and caste and the anarchic situation arises then the state or central government is entitled to declare that area as “Disturbed Area Act”.Arguments in the favour of AFSPA: On the basis of the power given to the armed forces, they are able to protect the boundaries of the country. In the absence of strict law, the armed forces will not be able to tackle the insurgent inside the country esp. in the Kashmir and Northeastern region of the country. The powers are given in the ASFA boost the morale of the armed forces to ensure the rule of law in the disturbed areas of the country. Arguments against the AFSPA: There are so many examples when the oppressive powers given to the armed forces have been misused.The armed forces are conducting fake encounters and sexually exploiting the women in disturbed areas. AFSPA violates human rights.
Violations of the Constitution and International Conventions due to the enactment of the AFSPAArticle 21–Right to life: the power conferred on the army to kill, arrest by force.Article 22– Protection against arrest and detention: the act has given complete authority to the officers to arrest any person on the said reasonable grounds and there is no stipulated time within which the army has to produce the person before the court.The violation of the Criminal Procedure Code (CrPC) since the army is not exactly trained to perform the search and seizure operation it is mainly the act of the police which is conferred on the army under AFSPA. Immunity to the security forces: The members of the armed forces in the whole of the Indian Territory are protected from the arrest for anything done within the line of official duty. The AFSPA provides them with absolute immunity for all the atrocities committed under the AFSPA. If the citizens have to file a suit against a member of the armed forces for the abuses carried out under AFSPA they must first seek the permission of the central government.AFSPA violates various international conventions such as the Universal Declaration of Human rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), Convention against Torture, UN Code of Conduct for Law Enforcement Officials, The UN Body of Principles for Protection of All Persons Under Any Form of Detention, The UN Principles on Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.
way back status and issues of AFSPA
AssamAssam was the first state to come under the AFSPA in 1958.The entire state of Assam has been under the Act since November 1990; this was necessitated due to the rise of ULFA’s activities in the region which was at its peak during the 1990’s.The Union Ministry of Home Affairs has recently expressed its readiness for a partial withdrawal of AFSPA from Assam and Arunachal Pradesh due to the improved security situation in these two states.According to data obtained from MHA through an RTI in July 2017, 31% of the complaints with regard to human rights violations were received from Assam. Jammu and KashmirThe state can confer an area as ‘disturbed’ on two grounds – either by invoking the Disturbed Areas Act (DAA) or by AFSPA. But with the lapse of DAA as early as 1990 the state of J&K has conferred the power to the armed forces to control the militant action by invoking AFSPA.According to data obtained from MHA through an RTI in July 2017, it shows that over the last three-four years, the maximum number of complaints of human rights violation have come from Jammu and Kashmir. J&K accounted for 49.5% of the complaints. TripuraThe AFSPA was first enforced in Tripura in 1997 when terrorism was at its peak in the crucial border state, which shares an 856-km long border with Bangladesh.Members of two separatist groups – National Liberation Front of Tripura (NLFT) and All Tripura Tiger Force (ATTF) – were sheltered and accused of getting arms training in Bangladesh. These two insurgent groups have been demanding the secession of Tripura from India.In May 2015, the Government of Tripura withdrew AFSPA after 18 years due to the consistent dip in the insurgent activities. The government religiously conducted the six months review as per the Supreme Court guidelines of 1998 and on seeing the reduced militant activity and normal functioning of the region decided to withdraw AFSPA. Manipur The state of Manipur was first given ‘disturbed area’ status in 1980. This was done to combat four insurgent groups which were active in the state at that time. Some Manipuri’s consider their state’s merger with India in 1949 to have been signed under “duress,” and a large number of insurgent groups demanding a separate state are active in the state. These include the United National Liberation Front of Manipur, the People’s Liberation Army of Manipur, and People’s Revolutionary Party of KangleipakThe Supreme Court’s July 2017 judgementon alleged extrajudicial killings in Manipur takes an important institutional step. It recognises the presence of state violence in conflict areas. It also notes that the victims of such violence have no access to justice, which is a basic human right recognised by the Constitution. Arunachal PradeshThree districts – Tirap, Changlang, Longding and 16 other police station limits in the state have been specified as ‘disturbed areas’ under Section 3 of AFSPA.In May 2017, the Ministry of Home Affairs had extended the AFSPA for 3 months by stating that these three border districts of Arunachal were being used by militants belonging to the National Democratic Front of Bodoland (NDFB) to escape to Myanmar. The Ministry of Home Affairs has recently expressed its readiness for a partial withdrawal of AFSPA from Assam and Arunachal Pradesh due to the improved security situation in these two states. Meghalaya a region along the 20km belt having common access with the Assam region is under AFSPA. in November 2015, the High Court of Meghalaya has made a suo-moto suggestion to the central government to impose AFSPA in the Garo hill region of Meghalaya. Mizoram The insurgency in Mizoram came to an end after the signing of the Mizoram Peace Accord in 1986. Since then Mizoram has been a peaceful state. But there has been no attempt from the government to lift AFSPA from the state. Nagaland The AFSPA has been in force in Nagaland for several decades and has been applicable for the entire state of Nagaland,It has not been withdrawn even after a framework agreement was signed on August 3, 2015, by Naga insurgent group NSCN-IM general secretary Thuingaleng Muivah and the government’s interlocutor R N Ravi in the presence of Prime Minister Narendra Modi.