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Understanding the Armed Forces Special Powers Act (AFSPA)
                                                                                                    January 7, 2018


Why in News?
  • Recently, AFSPA has been extended for six months in Nagaland.
  • The Centre is considering partial removal of the Armed Forces Special Powers Act from Assam and Arunachal Pradesh.
  • The Supreme Court has recently directed the CBI to constitute a Special Investigation Team (SIT) to investigate the alleged cases of extra-judicial killings in Manipur.
 
What is AFSPA?
  • Armed Forces (Special Powers) Acts(AFSPA) are Acts of the Parliament of India that grant special powers to the Indian Armed Forces and the state and paramilitary forces in areas classified as “disturbed areas”.
  • It gives powers to the army, state and central police forces to shoot to kill, search houses and destroy any property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry.
  • AFSPA is invoked when a case of militancy or insurgency takes place and the territorial integrity of India is at risk.
  • Security forces can “arrest a person without warrant”, who has committed or even “about to commit a cognizable offence” even based on “reasonable suspicion”.
  • It also provides security forces with legal immunity for their actions in disturbed areas.
  • While the armed forces and the government justify its need in order to combat militancy and insurgency, the Act has been associated with several human rights violations including fake encounters, rape, torture, abduction etc.
 
Historical Background
Pre-Independence
  • The AFSPA – like many other controversial laws – is of a 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.
 
Post-Independence
The Indian Parliament has enacted three different acts under AFSPA for different regions
1.  Armed Forces Special Powers (Assam and Manipur) Act, 1958
  • AFSPA was first enacted to deal with the Naga insurgency in the Assam region.
  • In 1951, the Naga National Council (NNC) reported that it conducted a “free and fair plebiscite” in which about 99 percent 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 order to deal with the situation, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels. When the situation worsened, the state government of Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, thus providing a legal framework for the paramilitary forces and the state police forces to combat insurgency in the region. But the Assam Rifles and the state police forces could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) set up a parallel government in 1956.
  • To tackle this threat, The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President Dr. Rajendra Prasad on 22 May 1958. It was later replaced by the Armed Forces (Assam and Manipur) Special Powers Act of 1958.
  • The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowered only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or the Union Territory as ‘disturbed’.
  • The reason for conferring such a power as per “Objects and Reasons'” included in the Bill was that “Keeping in view the duty of the Union under Article 355of the Indian Constitution, interalia, to protect every State against any internal disturbance, it is considered desirable that the Central government should also have the power to declare areas as ‘disturbed’, in order to enable its armed forces to exercise special powers”.
  • It was later extended to all North-Eastern states.
2. The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
  • The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act in 1983, by repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance of 1983, in order to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh which was battling the Khalistan movement in the 1980s.
  • In 1983 the Act was enforced in the whole of Punjab and Chandigarh. The terms of the Act broadly remained the same as that of the Armed Forces Special Powers Act (Assam and Manipur) of 1972 except for two sections, which provided for additional powers to the armed forces –
    1. Sub-section (e) was added to Section 4 stipulating that any vehicle can be stopped, searched and seized forcibly if it is suspected of carrying proclaimed offenders or ammunition.
    2. Section 5 was added to the Act specifying that a soldier has the power to break open any locks “if the key there of is withheld”.
  • As the Khalistan movement died down AFSPA was withdrawn in 1997, roughly 14 years after it came to force. While the Punjab government withdrew its Disturbed Areas Act in 2008, it continued in Chandigarh until September 2012 when the Punjab and Haryana high court struck it down.
3. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
  • The AFSPA in Jammu & Kashmir was enacted in 1990 in order to tackle the unprecedented rise in militancy and insurgency in Jammu and Kashmir.
  • If the Governor of Jammu and Kashmir or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition then this Act can be imposed.
  • Jammu and Kashmir has its own Disturbed Areas Act (DAA) a separate legislation that came into existence in 1992. Even after the DAA for J&K lapsed in 1998, the government reasoned that the state can still be declared as a disturbed area under Section (3) of AFSPA.
  • Implementation of AFSPA in J&K has become highly contentious but it still continues to be in operation.

Key Provisions of the Act
The salient features of the AFSPA act are:
  • Governor of a State and the Central Government are empowered to declare any part or full of any state as a disturbed area if according to their opinion that it has become necessary to disrupt terrorist activity or any such activity that might impinge on the sovereignty of India or cause insult to the national flag, anthem or India’s Constitution.
  • Section (3) of AFSPA provides that, if the governor of a state issues an official notification in The Gazette of India then the Central government has the authority to deploy armed forces for assisting the civilian authorities. Once a region is declared ‘disturbed’ then it has to maintain status quo for a minimum of three months, as per The Disturbed Areas Act of 1976.
  • Section (4) of AFSPA gives special powers to army officers in disturbed areas to shoot (even if it kills) any individual who violates law / or is suspected to violate law (this includes assembly of five or more people, carrying of weapons) etc. The only condition is that the officer has to give a warning before opening fire.
  • Security forces can arrest anybody even without a warrant, and carry out searches without consent.
  • Once a person is taken into custody, he/she has to be handed over to the nearest police station as soon as possible.
  • Prosecution of the officer on duty for alleged violation of human rights requires the prior permission of the Central Government.
 
Disturbed Areas
Section 3 of AFSPA states that:
  • An area to be declared as ‘disturbed area’ is conferred on the Governor of the state or the Administrator of the Union Territory or the Central Government. The entire area or a part of it can be declared as disturbed by a notification in the official gazette.
  • The state governments can suggest whether the act is required to be enforced or not. But under Section (3) of the act, their opinion can be overruled by the governor or the Centre.
  • Initially when the act came into force in 1958 the power to confer AFSPA was given only to the governor of the state. This power was conferred on the central government with the amendment in 1978 (Tripura was declared a disturbed area by the central government, over the opposition by the state government).
  • The act does not explicitly explain the circumstances on which it can be declared as ‘disturbed area’. It only states that, “the AFSPA only requires that such authority be of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary.”
 
Powers granted to the security forces stationed in disturbed areas
Section 4 of the Act states that:
Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces in a disturbed area may have the following powers-
  • If he is of the opinion that in order to maintain public order it is necessary to fire upon or use force, even to the extent of causing death, against any individual who is deemed to be acting in contravention of any law that is in force in a disturbed area. Further, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunitions or explosive substances. This action can be taken up after giving such due warning that is necessary.
  • If he is of the opinion that it is necessary to destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made. Even the structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence.
  • Any individual who has committed a cognizable offence or against whom a reasonable suspicion exists that he/she has committed or is about to commit a cognizable offence can be arrested without a warrant, and may use such force as necessary in order to carry out an arrest.
  • An enter and search without warrant is provided for any location to carry out such arrests or to apprehend any individual believed to be wrongfully restrained or confined or any property reasonably suspected to be a stolen property or any arms, ammunition or explosives believed to be kept unlawfully in such premises and for this purpose reasonable amount of force can be used if necessary.
 
What is Disturbed Areas Act (DAA)?
  • The Assam Disturbed Areas Act was initially promulgated for Nagaland in 1955 to supress the Naga uprising. This act is called the mini AFSPA since it provides the same powers to the armed forces as in AFSPA.
  • The state government has got the power to declare the whole or any part of the district by notification in the Official Gazette as a disturbed area.
  • Many states including the Jammu and Kashmir have repealed the Disturbed areas Act and brought in the AFSPA.
 
How different is DAA from AFSPA?
  • The DAA is the mini version of the AFSPA; it almost confers the same powers to the armed forces to take control of the state in order to curb the violence.
  • The only difference is that the DAA is conferred as the power of the state but AFSPA can be invoked either by the Governor of the state or the Central Government.
 
Current status and issues of AFSPA and DAA in various states
Assam
  • Assam 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 Kashmir
  • The 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.
  • The Supreme Court in 1997, while upholding the constitutional validity of AFSPA said that “Section 3 of AFSPA does not confer an arbitrary to declare an area as a ‘disturbed area’ and that ‘a declaration under section 3 of AFSPA has to be for a limited time period and there must be a periodic review of the declaration every six months prior to its expiry’.
  • Based on these facts the validity of AFSPA in the region and the immunity given to the armed forces under AFSPA can be challenged.
  • 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.
  • While calls for review and repeal of AFSPA are growing, the government and the armed forces cite that increasing insurgency and violence in the region justifies its necessity.
 
Tripura
  • The 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.
  • Ever since it was enforced in Tripura, the Act, as per its provisions, was reviewed and extended after every six months.
  • Local rights groups and political parties in Tripura had described the act as “draconian” and wanted it repealed since it was oppressing the tribal population of Tripura.
  • 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 Kangleipak.
  • The primary role of the Army in Manipur is to engage in counter-insurgency operations. The state shares a border with the Republic of Myanmar, from where several terrorist outfits operate.
  • In July 2016, the Supreme Court questioned the validity of AFSPA which is in force in state of Manipur since 1958. The SC stated that the armed forces should not be used to control its own citizens and also should not treat every person carrying a weapon in the disturbed area as a militant/ insurgent.
  • The SC said the state or the central government can impose AFSPA in a disturbed region to enforce normalcy within a stipulated time period.
  • It has been alleged that over 1,528 people died in extra-judicial killings (‘fake encounters’) carried out by the army between 1979 and 2012 in Manipur. The Supreme Court said that the army and paramilitary forces couldn’t use “excessive and retaliatory force” in Manipur, and asked for a report on alleged fake encounters in the state.
  • Recently in July 2017 the Supreme Court directed the CBI to setup a Special Investigative Team (SIT) to investigate the allegations of fake encounters and human rights violations under the AFSPA in Manipur.
  • The public interest litigationwhich led to intervention by the Supreme Court was filed by the Extra Judicial Execution Victim Families Association Manipur, which has recorded 1,528 deaths between 1979 and 2012.
  • The association is a registered trust whose members are women who have lost sons and husbands to violence by the state police and other security forces, including the Army and the Assam Rifles.
  • The 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 Pradesh
  • Three districts – Tirap, Changlang, Longding and 16 other police station limits in the state have been specified as ‘disturbed areas’ under Section 3 of AFSPA.
  • One of the primary reasons given by the Central government for the continued imposition of AFSPA in Arunachal was the increase in kidnapping and extortion activities and killing of security forces by the National Socialist Council of Nagaland (Isak-Muivah) and NSCN-K in these areas.
  • In 2015, the centre initiated on extending AFSPA for the entire state, but due to huge protests from the state government it was withdrawn.
  • 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
  • In Meghalaya a region along the 20km belt having common access with the Assam region is under AFSPA.
  • Recently 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.
  • Recently AFSPA has been extended in June 2017 for six more months by the central government due to increased insurgency, killings, loot and extortion in various parts of Nagaland leading to the extension of the “disturbed area” in the region.
 
Violations of the Constitution and International Conventions due to the enactment of the AFSPA
  • Article 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. 
 
CRITICISM of AFSPA
  • The act fails to protect and uphold human rights; this can be witnessed in the case of alleged custodial rape and killings of the Thangjam Manorama by the Assam rifles in 2004. The act reinforces a militarised approach to security which has proved to be not only inefficient but, also counterproductive in tackling security challenges.
  • The absolute authority vested in the armed forces to shoot on sight based on mere suspicion and for an offence as basic as violating an order. The power to shoot on sight violates the fundamental right to life, making the soldier on ground the judge of value of different lives and people the mere subjects of an officer’s discretion.
  • The power of arbitrary arrest and detention given to the armed forces goes against the fundamental right vested in Article 22, which provides safeguards on the preventive and punitive detentions. The Supreme Court has clearly stated that the person arrested has to be submitted to the court within 24hrs of the FIR. But, these conditions have clearly been ignored.
  • The greatest outrage against AFSPA is due to the immunity given to the armed forces. No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the central government. This immunity which protects guards and also facilitates the armed forces to take unwarranted decisions at times is clearly questionable.
  • Even during the state of emergency the right to life and liberty- Article 21 and certain rights under article 20 cannot be suspended. But the absolute power given to armed forces dissolves the inherent rights given under the fundamental rights and all the powers are vested in the officers.
  • The CBI’s past interventions in encounter killings have led nowhere. Take the Pathribal killings for example. In March 2000, unidentified gunmen shot dead 34 Sikhs in the village of Chittisinghpora in South Kashmir. Five days later, soldiers of the Indian Army claimed they had neutralised five “foreign militants” who were responsible for the massacre in Pathribal. After investigation, those killed turned out to be local men who had no role in the Pathribal killings. The ensuing case wound through courts and the CBI. The CBI’s charge sheet provided evidence that five soldiers were guilty of “cold-blooded murder”. But then the SC in its 2012 judgement said that the Army could choose whether these men were to be prosecuted in a civilian court or in a military tribunal. The Army opted for the latter and closed the case in 2014 citing lack of evidence.
 
SUPREME COURT GUIDELINES 1998
In the case of Naga People’s Movement of Human Rights vs. Union of India, the validity of AFSPA was challenged before the Supreme Court and the five judge bench concluded that the act cannot be considered as violative of the Constitution and the powers conferred under the section 4 and 5 of the Act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.
Further the guidelines stated that
  • The army personnel are required to strictly follow minimum force under Section 4 against suspected of violating prohibitive orders.
  • A person arrested and taken to custody under section 4 has to be handed over to the nearest police station within 24hours of such arrest.
  • The act has to be reviewed every six months by the state.
 
B P JEEVAN REDDY COMMITTEE
  • In 2005 the killing of Thangjam Manorama by the Assam Rifles in Manipur triggered widespread protests and outrage against the enforcement of AFSPA and as a follow up the government set up the Jeevan Reddy Commission to review AFSPA.
  • After a thorough research and various visits and hearings held within and outside the North-Eastern States, the committee was firm that the Armed Forces (Special Powers) Act, 1958, should be repealed.
  • The committee was also of the view that the act is too sketchy and inadequate in several particulars. The committee also said that “Due to the number of reports of sexual offences committed by the armed forces in India’s conflict areas such as Kashmir and the North East, the Armed Forces Special Powers Act (AFSPA) – a controversial law that gives sweeping powers to and often confers immunity on security forces – must be reviewed. Security forces must be brought under the purview of ordinary criminal law rather than under army law.”
  • It also noted that AFSPA had become “an object of hate and an instrument of discrimination and highhandedness’’.
 
SANTOSH HEGDE COMMIITTEE
  • In 2013, a committee headed by Supreme Court Judge Santosh Hegde was appointed to review the encounter killing of 1528 people in Manipur since 1979.
  • The Supreme Court was prompted to set up the Santosh Hegde committee following the petition filed by the Extra Judicial Execution Victim Families Association of Manipur asking it to look into six charges of unlawful encounter killings in Manipur.
  • The Santosh Hegde committee submitted its report in 2013, saying five of the six encounters were “not genuine”, that “disproportionate force” had been used against persons with “no known criminal antecedents”, and that AFSPA gave “sweeping powers” to men in uniform without granting citizens protection against its misuse.
  • Further, the committee was of the view that if greater power was given then greater would be the restraint and stricter would be the mechanism to prevent its misuse or abuse, but this possibility was absent in the case of Manipur.
 
SUPREME COURT ORDERS – 2016 to 2017
The 2016 judgement: Supreme Court’s ruling against the alleged encounter killings carried out under AFSPA came due to the plea submitted by the victim’s family of 1528 encounter killings carried out since 1979 in Manipur. The bench said “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the 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 Supreme Court judgement said:
  • Every death in the ‘disturbed areas’, be it of common person or insurgent, should be thoroughly enquired by the CID at the instance of the NHRC.
  • Not every armed person violating the prohibitory order in a disturbed area is an enemy. Even though he is considered as an enemy a thorough investigation has to be conducted, since every citizen of India is entitled to all the fundamental rights including article 21 of the constitution.
  • Even if the enquiry finds the victim to be an enemy, a probe should look into whether excessive or retaliatory force was used.
  • There is no concept of absolute immunity for army personnel who commit a crime.
The July 2017 judgement:  Supreme Court’s recent judgement on alleged unlawful encounter killings in Manipur has marked an important institutional step –
  • It recognises the presence of state violence in conflict ridden areas. It also notes that the victims of such violence have no access to justice, which is a basic human right recognised under the Constitution.
  • The Supreme Court has overruled the objections of the Centre and the Army and ordered the Central Bureau of Investigation to set up a special investigation team to probe encounter deaths. The case has gone a long way in piercing the institutional blindness to violence by members of the security forces in conflict zones.
  • Both the National Human Rights Commission and the Supreme Court in 2014 have laid down the guidelines to be followed by the state in case of encounter deaths. It states that first an FIR should be filed, investigation should be conducted by an independent agency and not by officers of the same police station and a magisterial enquiry needs to be held.
  • These rules, however, have remained on paper in most states. In Manipur, the Supreme Court observed that not a single FIR was filed against any uniformed personnel or members of the state police forces. Instead, charges have been filed against the victims for alleged violations of law and order in a disturbed area.
 
Why The Act is a Necessary Evil?
Even though there is a high dose of criticism, there are certain genuine arguments which validate the retention of AFSPA. They are:
  • The AFSPA is applied to an area only when the ordinary laws of the land are found to be inadequate to deal with the extraordinary situation perpetrated by insurgents spreading terror. It is applied when, in the terror-stricken area, the police force is found wanting and incapable of dealing with the terrorists and, thus, the induction of the army becomes imperative to battle the terrorists and maintain the territorial integrity of the country.
  • Insurgent movements in India have more or less been proxy-wars being waged against India by external actors and this necessitates the deployment of armed forces in a counter-insurgency role with enhanced legal protection.
  • The army has, repeatedly, made it clear that it cannot operate without the AFSPA. It needs special powers to tackle home grown and as well as foreign terrorists. The arguments enumerated above, and many more, have frequently been put forward by the army to retain the AFSPA in the areas it operates in. The underlying point is that the army cannot operate in militancy hit areas without the AFSPA and if AFSPA is repealed, as is being demanded, the army would have to be withdrawn from that state or area. That will create a huge gap in the security grid and will give terrorists, be it in Kashmir and Manipur, the upper hand.
 
RECOMMENDATIONS FOR THE BETTERMENT OF THE ACT
  • There is a clear and present danger of AFSPA becoming a symbol of oppression and hostage to previous human rights violations if the demands of the regions affected by terrorism and insurgency are not heard and their grievances redressed. Therefore, status quo is no longer an acceptable solution.
  • A message must be sent out to the people of disturbed stated like the Manipur, J&K that the government is willing to address their injustice, by making necessary changes to the existing law.
  • The army fights high intensity conflicts and people are the centre of the gravity. Therefore there must be support from the people of the region to the armed forces to fight terrorism and insurgent activities. The armed forces must build the necessary trust factor amongst the local populace to ensure their support in countering insurgency.
  • The existence of AFSPA in J&K is mainly to fight the proxy war being waged by external agencies and therefore such tough stringent laws are required to be given to the armed forces to act at when the need arises. But, there has to be enough measures to be taken to repeal some of the powers when the situation simmers down.
  • Involvement of the state bureaucracy, army and the grass root civil society organisation in the developmental activities of the state. This will make the army ‘pro development than a mere ‘law and order’ agency.
  • The security forces and the government should fast track existing cases and ensure speedy justice to victims by prosecuting the guilty. They should adopt a transparent process in place of the current opaqueness to deal with allegations of human right violations by the forces.
  • The government should consider the imposition and lifting of AFSPA on a case by case basis and limit its application only to few disturbed districts instead of applying it for the whole state.
  • The government and the security forces have to abide by the guidelines set out by – The Supreme Court, Jeevan Reddy Commission, Santosh Hegde Committee and the NHRC.
 
Conclusion
As the CBI now investigates the Manipur encounter killings, the Supreme Court must ensure that the probe reaches its logical conclusion and it should be insulated from political pressures. Judicial intervention has done a lot to push for accountability in conflict areas, to turn the conversation back to basic democratic and human rights. But progressive rulings by the judiciary can only go so far when they are constantly buffeted against attitudes in the government and the Army, which would preserve the status quo.
It is high time that sincere and concerted efforts are made continuously by the four stakeholders — civil society, the Armed Forces, the States and the Government of India to find a lasting and peaceful solution to the festering problem, with a little consideration from all quarters. It is never too late to bring peace and harmony in society. The recent SC verdict is likely to have far reaching consequences in places where security forces have been insulated by AFSPA to carry out counter-insurgency operations.