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Is it time to retire the 64-year-old AFSPA act?

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The Armed Forces (Special Powers) Act (AFSPA) was enacted in 1958 in response to the Naga insurgency in the northeastern state of Nagaland in India. The act was intended to give the military additional powers to deal with the insurgency and to maintain law and order in the region.

Over the years, the AFSPA has been applied in other areas of the country that have been declared “disturbed” by the government, including in the states of Assam, Manipur, and Punjab, as well as in the union territory of Jammu and Kashmir. It has also been used in other countries, such as Sri Lanka and Myanmar. 

However, in recent years, the AFSPA has been lifted or modified in some areas, including in the state of Tripura and in some districts of the state of Arunachal Pradesh.

The need for the AFSPA has been debated in India, with some arguing that it is necessary to maintain law and order in areas that are dealing with insurgency, terrorism, or other forms of violence, while others argue that it is not needed and that other measures can be taken to address these issues.

It is true that some areas in India where the Armed Forces (Special Powers) Act (AFSPA) has been implemented have continued to experience violence and bloodshed. The AFSPA has been controversial since it was enacted, with many critics arguing that it gives the military too much power and can lead to human rights abuses, including extrajudicial killings, torture, and arbitrary detention.

It is important to note that the root causes of violence and instability in these areas are complex and multifaceted, and the AFSPA is just one factor among many that may contribute to the situation. Other factors, such as political and economic issues, social and cultural factors, and historical tensions, may also play a role.

Let’s take a look at some of the pros and cons associated with AFSPA:

Pros:

Maintaining law and order: The AFSPA gives the military the authority to use force, including deadly force, if necessary, to maintain law and order in areas that are dealing with insurgency, terrorism, or other forms of violence. This can help to protect civilians and maintain public safety.

Protecting military personnel: The AFSPA grants immunity to military personnel for actions taken while carrying out their duties under the act. This can protect them from prosecution if they are accused of wrongdoing while carrying out their duties.

Cons:

Human rights abuses: The AFSPA has been criticized for giving the military too much power and leading to human rights abuses, including extrajudicial killings, torture, and arbitrary detention.

Lack of accountability: The immunity granted to military personnel under the AFSPA can make it difficult to hold them accountable for any wrongdoing. This can lead to a lack of justice for victims of abuse.

Alienating local populations: The AFSPA has been accused of alienating local populations and contributing to a sense of resentment and mistrust towards the military and the government.

Lack of effectiveness: Some have argued that the AFSPA has not been effective in addressing the root causes of violence and instability in the areas where it has been applied, and that other measures, such as political and economic reforms, are needed to address these issues.

What factors contribute to the continued existence of the AFSPA?

Despite calls for its repeal or modification from some quarters. There are a number of social & political factors that may contribute to the decision not to repeal the AFSPA. These may include:

Security concerns: Some political leaders may argue that the AFSPA is necessary to maintain law and order in areas that are dealing with insurgency, terrorism, or other forms of violence, and that repealing the act could lead to an increase in violence and instability.

Political support: The AFSPA may have support from certain political parties or factions, and repealing the act could alienate these supporters.

Military support: The military may support the AFSPA and oppose its repeal, and political leaders may be reluctant to alienate the military by repealing the act.

Political risk: Repealing the AFSPA could be seen as a politically risky move, as it could be unpopular with certain segments of the population and could potentially lead to backlash or criticism.

Lack of consensus: There may be a lack of consensus among political leaders and parties on the issue of repealing the AFSPA, which could make it difficult to move forward with repeal.

Fear of violence: Some people in areas where the AFSPA has been implemented may support the act out of fear that repealing it could lead to an increase in violence and instability.

Social and cultural factors: There may be social and cultural factors at play that contribute to support for the AFSPA in certain areas, such as traditional values or social norms.

In light of these concerns, what are the alternatives available?

To address these concerns, AFSPA could be modified or replaced with alternative measures. Some potential alternatives to the AFSPA that could be considered:

Increased police presence: Instead of relying on the military, some have suggested that increasing the police presence in certain areas could help to maintain law and order. This could involve providing additional resources and training to the police, as well as implementing community policing strategies.

Economic and social development programs: Addressing the root causes of violence and instability, such as poverty, inequality, and social exclusion, could be more effective in the long term than relying on military measures like the AFSPA. This could involve implementing economic and social development programs, such as job creation initiatives, education and training programs, and social welfare programs.

Political and economic reforms: Addressing political and economic issues, such as corruption, lack of transparency, and inequality, could be key to addressing violence and instability in certain areas. This could involve implementing reforms such as decentralization, accountability measures, and transparency

In order to reduce the restrictive nature of the existing legislation, the following modifications may be made:

Limiting the immunity granted to military personnel: The AFSPA currently grants immunity to military personnel for actions taken while carrying out their duties under the act. Some have suggested that this immunity could be limited or removed in cases where military personnel are accused of human rights abuses or other wrongdoing.

Increasing civilian oversight: The AFSPA provides for civilian oversight of the military’s actions through the appointment of a District Magistrate, who is responsible for receiving and investigating complaints about the military’s conduct. This oversight could be strengthened by increasing the number of District Magistrates, giving them more authority, or establishing other mechanisms for civilian oversight.

Clarifying the definition of “disturbed” areas: The AFSPA can only be applied in areas that have been declared “disturbed” by the government. Some have suggested that the definition of “disturbed” areas could be clarified to ensure that the act is not applied in situations where it is not needed.

Requiring prior approval for the use of force: The AFSPA gives the military the authority to use force, including deadly force, if necessary, to maintain law and order. Some have suggested that the act could be modified to require prior approval from a higher authority before the military is allowed to use force.

A summary of the Supreme Court’s rulings so far:

The act has been the subject of numerous legal challenges and Supreme Court rulings in India. Here are a few important Supreme Court rulings related to the AFSPA:

In 1997, the Supreme Court ruled in the case of Naga People’s Movement of Human Rights v. Union of India that the AFSPA was constitutional, but it also noted that the act should not be used as a “shield for unlawful acts of the armed forces.”

In 2004, the Supreme Court ruled in the case of People’s Union for Democratic Rights v. Union of India that the AFSPA was constitutional, but it also laid out guidelines for the use of the act, including the requirement that the military seek permission from the state government before using force.

In 2016, the Supreme Court ruled in the case of Armed Forces Tribunal v. Union of India that military personnel accused of human rights abuses under the AFSPA could not claim immunity from prosecution if there was sufficient evidence against them.

In 2017, the Supreme Court ruled in the case of Extra Judicial Execution Victim Families Association v. Union of India that the government must investigate all alleged extrajudicial killings in areas where the AFSPA has been implemented.

Ultimately, the decision on whether to repeal or modify the AFSPA or to pursue alternative measures will depend on the specific circumstances and needs of each situation. It will be up to the government and other stakeholders to carefully consider the options and make a decision that is in the best interests of the people and the country as a whole.

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