Is Armed Forces (Special Powers) Act still justifiable ?

What did the Government of India do?

On April 1st 2021, the Government of India extended the Armed Forces (Special Powers) Act, 1958 in three districts of Arunachal Pradesh – Tirap, Changlang, Longding and the areas falling within the jurisdiction of the four police stations in other districts of Arunachal Pradesh. These areas have been declared as ‘disturbed area’ under Section 3 of AFSPA up to September 30, 2021.

Why did the Indian Government do that?

According to a home ministry official, the law-and-order situation in these areas necessitated such a step. Banned groups like the National Socialist Council of Nagaland (NSCN-Khaplang), United Liberation Front of Assam (ULFA) and National Democratic Front of Boroland (NDFB) are active in these areas of Arunachal Pradesh.

Looking back, the objective of the NSCN has been to establish a sovereign State which the organisation and the people of the area proposed as ‘Greater Nagaland’ or Nagalim. The NSCN (Isak-Muivah) has been fighting for Nagalim.

it wants to extend Nagaland’s borders by including Naga-dominated areas in neighbouring Assam, Manipur and Arunachal Pradesh. Allegedly, in districts like Tirap and Changlang, Naga underground factions including NSCN (Isak-Muivah) and NSCN (Khaplang) are involved in extortion, recruitment of locals, and rivalry.

On the other hand, the National Socialist Council of Nagalim (Isak-Muivah) has been in peacefully cooperation with the Central government for some time now. They have asked the Government of India to be ‘more positive and sincere’ in finding a solution and has appealed to resolve the issue in line with the Framework Agreement of 2015 that was signed between the group and the Government of India.

This begs the question – was the recent application of AFSPA (Armed Forces (Special Powers) Act, 1958) against the people and the state of Arunachal Pradesh justified? In order to understand that we must look at the powers objectively granted under the Act.

What powers does AFSPA grant to the Army?

It would be insufficient to say that the Army is granted “overreaching” powers under the legislation. The then UN Commissioner for Human Rights Navanethem Pillay, stated in March 2009, that the law is a “dated colonial-era law that breach contemporary international human rights standards”. 

The Act grants officers of the armed forces to arrest without warrant, to conduct search and seizure without any warrant and to shoot even to the extent of causing death. What’s worse, is that no legal proceedings against such an abusive use of power may be started without the Centre’s assent.

The Army’s arbitrary use of power is nothing less than well documented. The Judicial Commission headed by former judge Santosh Hegde concluded that the Act had failed to tackling insurgency and that the armed forces had participated in the gross violation of human rights. Put simply – 

Normally, the greater the power, the greater the restraint and strictness in its use. In the case of AFSPA in Manipur, this principle appears to have been reversed…

It is thus abundantly clear that the Government only seek to protect its own while condemning thousands to the Army’s arbitrary use of power.

What about the rights of the innocent people living in these areas?

Commentators note that AFPSA violates human rights in several aspects – Free and Equal Dignity, Non-discrimination, Security of person, No torture, No Arbitrary arrest. The United Nations Human Rights Council, in 1991 itself, questioned the validity of AFSPA against India’s obligations under international law. The greatest outrage of AFSPA under both Indian and international law is the violation of the right to life. 

The concerns raised internationally echo themselves nationally. A Committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of the Supreme Court, categorically concluded that AFSPA must be repealed for the same reasons.

Thoughts

Just like all governments in the past, the present Indian government must have its arbitrary exercise of power in check by the citizens of the country. We, then, have an obligation to look to our friends in Nagaland or Arunachal Pradesh and ask whether the treatment under AFSPA is justified or not. We must do so before it is too late

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Ambuj Sachan

Cases argued by Aditya Pratap can be viewed here.

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