Written by Bastab Jyoti Das, 2^nd year law student, BA.LLB(H)

Introduction: – In the year 1942, under the leadership of Mahatma Gandhi, the AICC (All-India Congress Committee) launched the Quit India Movement with the slogan of ‘Do or Die’ to root the British Raj. In return, the British passed an ordinance named, (Armed Forces Special Powers Ordinance, 1942)¹, to crush the movement without any legal proceedings, the Act gave special powers to the British Army to deal with the movement without any legal problem.

Soon after Independence many similar Acts were passed by the Government of India to cope up with the problems like insurgency, separatism, etc. Nagaland became a stronghold of these problems, like the [Naga National Council (NNC)]² announced a free and independent state for the Naga People, leading to insurgency and related problems.

During that time Nagaland was not a state rather it was a part of Assam and was known as Naga Hills. So, in order to deal with the problem, the Assam Government introduced the [Assam Maintenance of Public Order Act]³ but it failed in its mission. Another act named [Assam Disturbed Areas Act, 1955] ⁴ was made. But with time insurgency & separatism became a common problem in the whole North East. So, in May 1958, the Indian Government framed a new law called [Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958] ⁵ . Later on, its jurisdiction was increased to the whole of North East and was renamed as [Armed Forces Special Powers Act, 1958 (AFSPA) ]⁶ which gave special powers to the Armed

Forces to deal with the problems, which are there in many places, called as the ‘Disturbed Areas.’

Relevance of AFSPA in North East

The AFSPA was introduced in late 50s to uproot the problems in North East, but due to some of its misuses which happened because of its provisions, it became

quite unpopular among the locals of North East. Some of its controversial sections are:-

• Section 4(a) of AFSPA provides the armed forces to shoot (even if it kills) any individual who violates the law/or is suspected to violate the law.

The only condition is that the officer has to give a warning.

• Section 4(d) of the act states that, on the basis of suspicion the Army can enter any premises and search without any warrant, and can also arrest and damage any structure without any prior permission.
• Section 6, also gives legal immunity to the forces, that, no prosecution, suit or other legal proceedings can be taken against them, if they do anything wrong under the act, the prosecution will only take place if the Centre sanction it.

Due to the above-mentioned sections of the Act, it was misused, and due to which the people of the North East find it discriminatory and it has further led to alienation of the locals of North East rather than bringing them to the mainstream. Some of its misuses are as follows:-

1. Fake- Encounters: – The biggest misuse of section 4(a) of this act was an increase in the extra judicial killings or fake-encounters. In a writ petition filed in the Supreme Court, it was alleged that 1528 fake encounters took place in between 1979 to 2012. Also, recently in December 2021, the forces accidently killed a van full of 13 civilians thinking them as insurgents, who were coming back from work.
2. Feeling of Alienation of the locals: – Due to the section 4(d), the use of force of AFSPA furthered the feeling of alienation of the local people, they are always threatened about their existence and living a peaceful life.
3. By-Passing State: – AFSPA gives full power to the centre that at anytime they may surpass the decision of the state, like we have seen in Tripura in 1972.

Protests Against AFSPA in North East

There have been numerous numbers of protests against the act, to either repeal it or reduce its area of jurisdiction, some of which are: –

• In 2000, Irom Sharmila (activist), started a hunger strike that continued till 2016 to repeal AFSPA from Manipur⁷.
• In 2004, Centre appointed a committee under former Justice Jeevan Reddy, which recommended the repeal of AFSPA, and called it as a sign of oppression⁸.

Due to this kind of protests AFSPA was withdrawn from Meghalaya, Tripura in 2018 & 2015 respectively. Till 2022, 31 districts completely and 12 districts partially in parts of Nagaland, Assam, Manipur and Arunachal Pradesh are AFSPA free. Recently in 2023, AFSPA was repealed from four more jurisdictions from Manipur, simultaneously, it was repealed from one district and three police station jurisdictions from Assam and Nagaland respectively.

Also, one of the leading case for the repeal of AFSPA was seen in the case of (Naga people’s Movement of Human Rights vs. Union of India)⁹ where during an anti-separatist operation by the armed forces, namely, ‘Operation Bluebird’, in Oinam and surrounding villages of Senapati district, it was alleged that the forces have committed murders, rape, and destruction of houses, and that as per AFSPA’s provision no legal suit can be filed against them, which violates their fundamental rights, and the petitioners also demanded for an enquiry. But the Union totally denied the allegations. Soon after examining the case properly the Court denied for an enquiry and rejected the application.

Conclusion

 AFSPA was originally introduced to tackle the problems of North East, but due to its misuse it created further problems and had alienated the locals from the rest of India, In my view AFSPA should be amended to better suit the current issues and a balance must be struck through proper policy making to ensure that the objective of AFSA is not diluted but the abuse of power is also curbed. All of which is wholly dependent upon the legislature. However, if the same is not possible, a new piece of legislation must be devised to address the prevalent needs. AFSA, as it currently stands, is the “go-to” now for the power abusers and it directly violates the most basic and fundamental ideals of a democratic society.

Reference

1. https://idsa.in/askanexpert/ArmedForcesSpecialPower
2. https://en.m.wikipedia.org/wiki/Naga_National_Council
3. https://legislative.assam.gov.in
4. https://legislative.assam.gov.in
5. https://www.latestlaws.com/bare-acts/state-acts-rules/manipur-state- laws/armed-forces-assam-and-manipur-special-powers-act-1958/
6. https://www.mha.gov.in
7. https://www.bbc.com/news/world-asia-india-37007494/
8. https://www.amnesty.org
9. (1998) 2 SCC 109