The AFSPA is in force in most parts of the Northeast. Activists have been demanding repeal of the law that gives special powers to the armed forces to bring back order in areas designated as “disturbed” by the government.

Killing of civilians in Nagaland: What is AFSPA and why is it so controversial?

Indian Army soldiers ride past the main town in a convoy in Kohima, capital of Nagaland, India, Sunday, December 5, 2021. (AP Photo)

The Armed Forces Special Powers Act (AFSPA) is back in controversy after Indian Army’s para commandos shot 14 civilians in Nagaland’s Mon district. The government has described the incident as a case of mistaken identity.

Nagaland Chief Minister Neiphiu Rio said that the AFSPA tarnished the image of India and should be removed. Meghalaya Chief Minister Conrad Sangma, too, called for a repeal of the AFSPA.

The AFSPA is in force in most parts of the Northeast with activists demanding repeal of the law that gives special powers to the armed forces in areas where it is in force.

What is AFSPA?

The introduction of the AFSPA says that it has been enacted to assist state governments which were incapable to maintain internal disturbance. The AFSPA grants the armed forces extraordinary powers and legal immunity to bring back order in areas designated as “disturbed” by the government.

Some of these powers include opening fire upon anyone who is acting against law and order, arrest anyone without a warrant, stop and search any vehicle or vessel, and prohibit a gathering of five or more people.

Possession of firearms by civilians is also banned under the AFSPA. The law also confers special power on non-commissioned officers.advertisement

Once AFSPA is enforced in an area, “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.

When did AFSPA come into existence?

The AFSPA finds its origin in colonial India when the British brought the Act as an ordinance in the backdrop of the Quit India Movement launched by Mahatma Gandhi in 1942.

After Independence, then Prime Minister Jawaharlal Nehru decided to continue with the law in view of insurgency in Assam and Manipur. The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by then President Dr Rajendra Prasad on May 22, 1958.

Later, it was later replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958 on September 11, 1958.

Initially, the AFSPA was imposed in insurgency-affected areas of the hills of undivided Assam that were identified as “disturbed areas”. Nagaland Hills were among those areas. Later on, all seven states in the Northeast were brought under the AFSPA.

The law was also enforced in Jammu and Kashmir and Punjab during years of militancy. In 2008, Punjab became the first state to withdraw the AFSPA.

Where is AFSPA in force now?

Apart from Nagaland, the AFSPA is currently in force in Jammu and Kashmir, Assam and Manipur except Imphal and Arunachal Pradesh.

The stringent Act can be completely or partially removed if the government feels insurgencies have subsided in the region. Besides Punjab, the AFSPA was revoked in Tripura in 2015 and in Meghalaya in 2018.

The use of AFSPA was also restricted in Arunachal Pradesh and Manipur by the government.

Why AFSPA is so controversial

With special powers accorded to the armed forces, there have been multiple allegations of “fake encounters” and other human rights violations by the security forces in ‘disturbed’ areas.

A public interest litigation (PIL) filed in the Supreme Court claimed that at least 1,528 extra-judicial killings took place in Manipur between 2000 and 2012. The petition alleged that a majority of these killings were carried out in cold blood while the victims were in custody and were allegedly tortured.

Activists such as Irom Sharmila have protested the existence of the AFSPA. She undertook a 16-year-long hunger strike against the law.advertisement

In 2013, the Supreme Court appointed a committee headed by its former judge Justice Santosh Hegde to probe six “sample cases of alleged fake encounter” in Manipur. Former Chief Election Commissioner JM Lyngdoh and former Karnataka DGP Ajay Kumar Singh were other members of the committee.

In July 2016, the Supreme Court directed the armed forces and police not to use “excessive or retaliatory force” in even areas declared ‘disturbed’ where the AFSPA is applicable.

A year later, the Supreme Court directed the Central Bureau of Investigation (CBI) to probe various cases of alleged fake encounters in Manipur. The Supreme Court also decided to monitor the investigation.