Nagaland probe on AFSPA and 1997 SC judgment

Context:

• The killing of civilians in a botched ambush by the armed forces in Nagaland’s Mon district and its violent fallout have put the spotlight on the Armed Forces (Special Powers) Act [AFSPA] of 1958.
• The death of 15 people — six of them coal miners “mistaken” as extremists — and a soldier over 24 hours of madness also threatens to cast a shadow on the 24-year-old Naga peace process besides undoing the military-civilian ties built over the last two decades.

Relevance:

GS-II: Polity and Constitution, GS-II: Governance, GS-III: Internal Security Challenges

Dimensions of the Article:

1. Armed Forces Special Powers Act (AFSPA)
2. AFSPA Acts in force
3. Powers Given to an officer of the Armed Forces in a “disturbed” area under AFSPA
4. Arguments Against AFSPA
5. Important Criticisms of AFSPA and commissions regarding AFSPA
6. Constitutionality of AFSPA
7. Supreme Court judgment on AFSPA
8. Reactions to the killing of 14 civilians by security forces in Nagaland
9. Who are the Nagas?
10. What is the Naga Issue?
11. Peace Initiatives with the Naga
12. No clarity on peace process

Armed Forces Special Powers Act (AFSPA)

• Armed Forces Special Powers Act (AFSPA), 1958 is an act of the Parliament of India that grant special powers to the Indian Armed Forces the power to maintain public order in “disturbed areas”.
• AFSPA is invoked when a case of militancy or insurgency takes place and the territorial integrity of India is at risk.
• Security forces can “arrest a person without warrant”, who has committed or even “about to commit a cognizable offence” even based on “reasonable suspicion”.
• It also provides security forces with legal immunity for their actions in disturbed areas.
• While the armed forces and the government justify its need in order to combat militancy and insurgency, critics have pointed out cases of possible human rights violations linked to the act.
• According to The Disturbed Areas (Special Courts) Act, 1976 once declared ‘disturbed’, the area has to maintain status quo for a minimum of 3 months.
• The Acts have received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened.

AFSPA Acts in force

It is effective in the whole of Jammu and Kashmir, Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh.

History of AFSPA Acts

• An AFSPA Act passed in 1958 was applicable to the Naga Hills, then part of Assam.
• In the following decades it spread, one by one, to the other Seven Sister States in India’s northeast (at present, it is in force in the States of Assam, Nagaland, Manipur, Changlang, Longding and Tirap districts of Arunachal Pradesh, and areas falling within the jurisdiction of the eight police stations of districts in Arunachal Pradesh bordering the State of Assam).
• Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force.
• An Act passed in 1990 was applied to Jammu and Kashmir and has been in force since.

Powers Given to an officer of the Armed Forces in a “disturbed” area under AFSPA

1. After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order,
2. Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.
3. To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.
4. To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.
5. Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.
6. Any person arrested and taken into custody under this Act shall be made present over to the officer in charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.
7. Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government’s judgment on why an area is found to be disturbed subject to judicial review.
8. Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.

Arguments Against AFSPA

• Symbol of Hatred: The Jeevan Reddy Committee, which was founded in 2004, criticised AFSPA as a symbol of hatred, persecution, and a tool of oppression.
• Immunity to Security Forces: AFSPA has been dubbed a “draconian Act” for the unrestricted authority it grants the military forces and the impunity that security officers have for their acts performed under the law. Under AFSPA, the “armed forces” have the authority to shoot to kill or demolish a structure based solely on suspicion.
• Human Rights Issue: The AFSPA’s activities have been criticised because people have died as a result of them. It’s been a contentious issue, with human rights organisations condemning it as being too forceful.
• Prolonged continuation: Despite a nearly 25-year ceasefire accord, the Union Government has been chastised for renewing the “disturbed region” tag on Nagaland every year to keep the AFSPA alive.
• Concerns of AFSPA in Manipur: Many protests over suspected extrajudicial executions by the security forces have taken place in Manipur throughout the years. The bullet-riddled body of Thangjam Manorama, who was reportedly raped and killed by a group of Assam Rifles troops in 2004 sparked outrage across the state. Irom Sharmila, often known as the Iron Lady of Manipur, is a towering figure who is well-known for her 16-year hunger strike in protest of AFSPA atrocities.

Arguments in Favour of AFSPA

• The AFSPA is described as a law that takes a straightforward approach to control criminal activity in disturbed areas.
• Fascist techniques and all groups, private and public, that engage in violence and attempt to pressure the government by organised violence must be controlled. As a result, the AFSPA is vital.

Important Criticisms of AFSPA and commissions regarding AFSPA

• When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA.
• They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR.
• In 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy.
• The Act has been criticized by Human Rights Watch as a “tool of state abuse, oppression and discrimination”.

Justice Jeevan Reddy Commission

• The commission recommended to repeal AFSPA as “the Act is a symbol of hate, oppression and instrument of high handedness”.

Second Administrative Reforms Commission

• The second Administratively Reforms Commission (ARC) in its fifth report on “Public Order,” recommended to repeal of Armed Forces Special Powers Act, 1958.
• It commented that its scrapping would remove sentiments of discrimination and alienation among the people of the North East India.
• The commission recommended to amend the Unlawful Activities (Prevention) Act, 1967 inserting a new chapter to deploy the armed forces of the Union in the North eastern States.
• It supported a new doctrine of policing and criminal justice inherent in an inclusive approach to governance.

Supreme Court of India

• Supreme Court said that any encounter carried out by armed forces in the garb of AFSPA should be subjected to thorough inquiry.
• According to the Supreme Court – it does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both.

Constitutionality of AFSPA

• The Act’s constitutionality has been challenged on the grounds that it violates the right to equality and the federal framework of the Constitution because law and order is a state responsibility.
• The Supreme Court affirmed the validity of AFSPA in Naga People’s Movement of Human Rights v Union of India in a majority ruling in 1998, finding that the Act does not provide arbitrary powers to label a region a “disturbed area.”
• The Court concluded that, while the Constitution permitted the deployment of military troops to assist civil authorities, such deployment could only be temporary until normalcy was restored.
• It further said that the Central government should contact state governments before declaring an area a “disturbed area,” and that the authorised official should use the least amount of force necessary for successful action.

Supreme Court judgment on AFSPA

1997 judgment on AFSPA

• In Naga People’s Movement for Human Rights vs Union of India 1997, a Constitution Bench ruled that the ability to use deadly force under Section 4(a) of the AFSPA should only be used in “certain circumstances.”
• A 1997 Supreme Court judgment advocated “caution and use of minimum force against our own people” in AFSPA regions.

Extra-Judicial Execution Victim Families Association (EEVFAM) case 2017

• The Supreme Court addressed the extrajudicial executions in 2016, clarifying that the bar under Section 6 of the AFSPA does not offer officers “complete immunity” from any investigation into their alleged misconduct.
• The government received severe criticism from the Supreme Court in 2016 for the continuance of AFSPA.

Reactions to the killing of 14 civilians by security forces in Nagaland

• Lok Sabha members condemned the killing of 14 civilians by security forces in Nagaland with some Opposition MPs calling for the repeal of the Armed Forces (Special Powers) Act (AFSPA) as well.
• Nagaland Chief Minister has also called for scrapping the Armed Forces (Special Powers) Act.
• Human rights bodies in India and beyond are debating the contentious AFSPA that gives unbridled powers to the security forces.
• Nagaland Chief Minister also criticised the Centre for extending the “disturbed area” tag on Nagaland every year to prolong the AFSPA despite a ceasefire agreement for almost 25 years.
• In the northeast, the AFSPA is in force in Assam, Nagaland, Manipur, the Tirap, Changlang and Longding districts of Arunachal Pradesh and areas falling within the jurisdiction of eight police stations of the State bordering Assam.
• For Jammu and Kashmir, the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, is in force.

Who are the Nagas?

• The Nagas are not a single tribe, but an ethnic community, belonging to Indo-Mongoloid Family, that comprises several tribes who live in the state of Nagaland and its neighbourhood.
• There are nineteen major Naga tribes, namely, Aos, Angamis, Changs, Chakesang, Kabuis, Kacharis, Khain-Mangas, Konyaks, Kukis, Lothas (Lothas), Maos, Mikirs, Phoms, Rengmas, Sangtams, Semas, Tankhuls, Yamchumgar and Zeeliang.

What is the Naga Issue?

• After India became independent in 1947, the Naga territory initially remained a part of Assam.
• In 1957, after an agreement was reached between Naga leaders and the Indian government, the Naga Hills region of Assam and the Tuensang frontier division to the northeast were brought together under a single unit directly administered by the Indian government.
• Nagaland achieved statehood in 1963, however, rebel activity continued.
• The key demand of Naga groups has been a Greater Nagalim (sovereign statehood) i.e., redrawing of boundaries to bring all Naga-inhabited areas in the Northeast under one administrative umbrella.
• The Naga inhabited areas include various parts of Arunachal Pradesh, Manipur, Assam and Myanmar.
• The demand also includes the separate Naga Yezabo (Constitution) and Naga national flag.

Peace Initiatives with the Naga

• Shillong Accord (1975): A peace accord was signed in Shillong in which the NNC leadership agreed to give up arms. However, several leaders refused to accept the agreement, which led to the split of NNC.
• Ceasefire Agreement (1997): The NSCN-IM signed a ceasefire agreement with the government to stop attacks on Indian armed forces. In return, the government would stop all counter-insurgency offensive operations.
• Framework Agreement (2015): In this agreement, the Government of India recognised the unique history, culture and position of the Nagas and their sentiments and aspirations. The NSCN also appreciated the Indian political system and governance. However, the details of the agreement are yet to be released by the government.
• Recently, the State government decided to prepare the Register of Indigenous Inhabitants of Nagaland but later due to pressure from various fractions, the decision was put on hold.

Issues:

• The 2015 agreement apparently made the peace process inclusive but it created suspicion about the central government exploiting divisions within the Nagas on tribal and geopolitical lines.
• The issue of integration of contiguous Naga-inhabited areas of Manipur, Assam and Arunachal Pradesh in view of the demand for territorial unification of ‘Greater Nagalim’ will trigger violent clashes in the different affected states.
• Another major hindrance to the peace process in Nagaland is the existence of more than one organisation, each claiming to be representative of the Nagas.

No clarity on peace process

• Several factions of the NSCN (K) joined the peace process between 2001 and 2021.
• There is no clarity on the peace process that culminated in the Framework Agreement the Centre had signed with the NSCN (I-M) in 2015 and the Agreed Position signed with the rival Naga National Political Groups in 2017.
• After the death of its chief the NSCN (K) became the NSCN (K-Yung Aung) and it has along with allies such as the United National Front of Asom (Independent) had several run-ins with the armed forces since 2015.
• The Army and the paramilitary Assam Rifles have been conducting operations in Nagaland primarily against the NSCN (K-YA) in Mon and southern Arunachal Pradesh bordering Myanmar where the outfit is based.

-Source: The Hindu