• The Centre wanted to reduce the areas under the Armed Forces Special Power Act (AFSPA) in Assam but the State government did not concur.

Reason

• The parliamentary panel report said there was some difference of opinion between the Government of India and the State government with regard to the areas to be declared “disturbed areas.”
• The Committee is unable to comprehend the divergent perceptions of the situation in Assam.
• The Ministry has asserted that there has been an improvement in the security situation in Assam.
• On the other hand, the area declared as disturbed area under the AFSPA has been increased on the plea that it is not the appropriate time to reduce the area.

Why AFSPA Needed?

• Violence became the way of life in north-eastern States of India. State administration became incapable to maintain its internal disturbance.
• Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated by the President on 22nd May of 1958.
• In which some special powers have been given to the members of the armed forces in disturbed areas in the State of Assam and Union Territory of Manipur.

What does AFSPA Mean?

• 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 a premise without a warrant
• ban the possession of firearms.
• Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

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.

Declaration of Disturbed Area:

• 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.

States under AFSPA:

• Assam
• Nagaland
• Manipur (except the Imphal municipal area)
• Arunachal Pradesh (some districts plus a 20-km belt bordering Assam)
• Jammu and Kashmir

Critical Analysis:

• This law gives immunity to the armed forces against any legal proceeding. To institute any legal proceeding against an armed force official consent of the Central Government is to be sought.
• The Act does not define or even lay down precisely the grounds for declaring an area as a disturbed area. This has vested an uncontrolled power with the Government on which no limitation is prescribed. The law also doesn’t even allow judicial review with regards an area being declared as disturbed.
• The Act authorizes an uncontrolled use of force which is considered to be a violation of the right to life guaranteed under Article 21 of the Constitution of India. the Act not only authorizes the use of force but also allows the use of force to the extent of causing death and the power to even fire. This is regarded as a violation of the human rights and infringing the right to life of the people which is not only a fundamental right but also a human right.
• Comparing AFSPA with the Code of Criminal Procedure it is said that this draconian law overrides the Code of Criminal Procedure and does not lay safeguards for the implementation. As the Code of Criminal Procedure lays down a proper procedure which is to be followed by the police personnel while dealing with the law and order problem. AFSPA does not provide for any procedure which is to be followed by the armed forces it simply gives them an uncontrolled power an authority to deal with the law and order problem.
• The Act has not been able to achieve its objectives as the law and order situations are said to have worsened in the areas where this draconian law is in force. This Act has further also created a rift between the people of the area and the armed forces due to the abuse of the power by the forces. The prime purpose for enacting such a law was to maintain law and order and protect the life of the innocent. But the abuse of the power has further threatened the life of the innocent and resulted in various atrocities
• Lastly, the abuse of power by the forces has also paved way for the insurgents to motivate people against the Government and increased the demand for autonomy by the people. This has ultimately resulted in the increase of the agitations as the people lose faith in the Government. The victims not having any remedy available against the armed forces further get disappointed by the Government and seek other measures for achieving justice.

Way Forward:

• AFSPA should be made compliant with international and national norms of human rights and humanitarian law.
• Greater transparency in communicating the status of existing cases to include its display on the army and government’s web sites.
• Proactive feedback to petitioners on action taken by the government in past human rights cases.
• Create committees at the district level with representatives of army, police, civil administration and the public to report, assess and track complaints in the area.
• There is a need to keep detailed records of operations, to ensure suitable proof of conduct of forces and operational imperatives. The provision of technological capability for facilitating the same should be considered.