A Special Authority Act
Source: The Indian Express
Context:
Nagaland's AFSPA has been extended for 6 more months.
The Center is considering the partial abolition of the Special Authority Act of the Armed Forces of Assam and Arunachal Pradesh.
The Supreme Court recently ordered the CBI to establish a Special Agent Team (SIT) to investigate allegations of extrajudicial killings in Manipur.
A brief walkthrough of AFSPA
It empowers the military, state, and central police to kill homes, search homes, and destroy property that is likely to be used by armed groups in areas that the Interior has identified as "disturbed."
AFSPA is called when a militant or riot incident occurs and India's territorial integrity is at stake.
Security forces can also commit identifiable crimes, or "attempt to commit identifiable crimes" and "arrest unwarranted persons," also on the basis of "reasonable suspicion."
It also grants security forces legal immunity for actions in disturbed areas.
While the military and government have demonstrated the need to fight armed groups and rebellions, critics have pointed out possible crime-related human rights abuses.
Main provisions of the AFSPA Law
The main features of the AFSPA Law are as follows.
The Governor and the Central Government have the authority to declare some or all of the state as disturbed areas.
Necessary for interruptions in terrorist activity, activities that may affect India's sovereignty or activities that may violate the national flag, national anthem, or the Constitution of India.
Section (3) of the AFSPA stipulates that if the Governor publishes an official notice in the Indian Bulletin, the central government has the authority to use the armed forces to support civil authority. When a region is declared "disturbed," the Disturbed Area Act of 1976, requires that the status quo be maintained for at least three months.
Section (4) of the AFSPA gives army officers special authority to shoot people suspected of violating the law, including gatherings of five or more, and carrying weapons. The only condition is that the officer must warn about the firing.
Security forces can arrest anyone without a warrant and conduct a search without consent. As soon as a person is detained, he must be handed over to the nearest police station as soon as possible. Prior consent of the central government is required to criminally charge.
Criticism of AFSPA
The law does not protect or endorse human rights. This can be demonstrated in the case of prison rape and the killing of Tanjam Manorama by Assam Rifles in 2004.
The law is strengthening its military approach to security, which has proven to be inefficient as well as counterproductive in addressing security challenges.
The absolute authority of the army to shoot with a view to crimes as basic as suspicion and command violation.
The ability to shoot with sight violates the fundamental right to life, making soldiers on the spot a judge of the values of various lives and people, and is merely at the discretion of the officer.
The power of arbitrary arrest and detention gave to the military violates the fundamental rights set out in Article 22, which provides for protective and criminal detention.
The Supreme Court clearly states that those arrested must appear in court within 24 hours of the FIR. However, these conditions are clearly ignored.
The greatest anger at AFSPA comes from the exemptions given to the military. No prosecution, proceedings, or other legal proceedings may be initiated without the prior consent of the central government. This exemption, which protects guards and sometimes facilitates unjustified decisions by the military, is clearly questionable.
Right to life and liberty under Article 21 and certain rights under Article 20 even during a state of emergency. Cannot be stopped. However, the absolute power given to the army eliminates the rights inherent in the basic rights, and all power lies with the officer.
CBI's previous intervention in face-to-face killings went nowhere. For example, consider the Pathribal murder case. Five days later, Indian Army soldiers claimed to have neutralized the five "foreign militants" who caused the Pathribal massacre. Investigations have revealed that it was a local man who played no role in the killing of Pathribal. Subsequent proceedings passed the court and CBI.
The CBI's indictment provided evidence that five soldiers were found guilty of a "cold-blooded murder." But then the SC said in a 2012 ruling that the military could choose to prosecute these men in civil court or in military court. The military chose the latter and ended the case in 2014 due to a lack of evidence.
Supreme Court Orders-2016-2017
2016 Decision:
The Supreme Court's decision on alleged murders committed under AFSPA is based on the families of 1,528 encounter victims killed in Manipur since 1979. Was there.
The bench said, "It doesn't matter if the victim is a normal person, a radical, a terrorist, an attacker a normal person, or a nation. The law is the same for both and applies equally to both. It will be equally applicable to both, this is a demand for democracy and the demand for the rule of law and the protection of personal liberty. "
The Supreme Court ruling states The "disturbed area", whether civilian or rebel, should be thoroughly investigated by criminal police in the case of NHRC. Not all armed people who break the ban in disturbed areas are enemies.
All citizens of India are considered enemies because they have all the basic rights, including Article 21 of the Constitution, but they need to be thoroughly investigated. Even if the investigation reveals that the victim is an enemy, it is necessary to investigate whether there has been excessive violence or retaliation.
There is no concept of absolute immunity for members of the army who have committed crimes.
July 2017 Decision:
The recent Supreme Court ruling on alleged illegal killings in Manipur represents an important institutional step. It acknowledges the existence of national violence in conflict areas. Also states that victims of such violence do not have access to justice, a fundamental human right recognized by the Constitution of India.
The Supreme Court dismissed the Center and Army objections and ordered the Central Investigation Bureau to set up a dedicated investigation team to investigate the deaths encountered.
The incident helped break through the organization's blindness to violence by members of security forces in conflict areas. In 2014, both the National Commission on Human Rights and the Supreme Court established guidelines that states must follow in the event of a collision death.
The FIR was first submitted, stating that the investigation should be conducted by an independent body rather than a police officer at the same police station and a judicial inquiry should be conducted. However, these rules remain on paper in most states. In Manipur, the Supreme Court has found that no FIR has been submitted to uniformed personnel or members of the state police. Instead, the victim was charged with violating law and order in the disturbed area.
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, the 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 center of 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 have 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 organization 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 rights 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 a few disturbing 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. The 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 to 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.
