The Supreme Court said on Friday that the Indian Army or paramilitary forces cannot use “excessive or retaliatory force” even in areas under the controversial Armed Forces (Special Powers) Act (Afspa) .
The top court’s verdict, which is a blow to the immunity enjoyed by security forces, came on petitions demanding a probe by the Central Bureau of Investigation (CBI) or a special investigation team into the alleged 1,528 cases of what critics say are extra-judicial killings in Manipur between 2000-2012 by the army.
The top court agreed to an independent inquiry into the cases of extra-judicial killings in the northeastern state.
Here are 10 points about the controversial legislation:
1. What is Afspa?
Afspa, which was enacted in 1958 amid the nascent Naga insurgency, gives powers to the army and state and central police forces to shoot to kill, search houses and destroy any property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry.
Security forces can “arrest without warrant” a person, who has committed or even “about to commit a cognizable offence” even on “reasonable suspicion”. It also protects them from legal processes for actions taken under the act.
2. Which states are under Afspa?
It is in force in Assam, Jammu and Kashmir, Nagaland, Manipur (except the Imphal municipal area). In Arunachal Pradesh, only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam come under its purview. And in Meghalaya Afspa is confined to a 20-km area bordering Assam.
3. What are ‘disturbed’ areas?
The state or central government considers those areas as ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”
4. How is a region declared ‘disturbed’?
Section (3) of the Afspa empowers the governor of the state or Union territory to issue an official notification in The Gazette of India, following which the Centre has the authority to send in armed forces for civilian aid.
Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.
5. What is state government’s role?
The state governments can suggest whether the act is required to be enforced or not. But under Section (3) of the act, their opinion can be overruled by the governor or the Centre.
6. Is the act uniform in nature?
Initially, it was meant only for Assam and Manipur, where there was an insurgency by Naga militants. After the reorganisation of the northeast in 1971, the creation of new states like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the Afspa to be amended, so that it could be applied to each of them.
The amendments contain different sections as applicable to the situation in each state.
7. What is the status of Jammu and Kashmir?
Jammu and Kashmir has its own Disturbed Areas Act (DAA) a separate legislation that came into existence in 1992. After the DAA for J-K lapsed in 1998, the government reasoned that the state can still be declared disturbed under Section(3) of Afspa.
8. What are the arguments for Afspa?
The army is opposed to the withdrawal of Afspa. Many argue that removal of the act will lead to demoralising the armed forces and see militants motivating locals to file lawsuits against the army.
9. What do detractors say?
Critics say the undemocratic act has failed to contain terrorism and restore normalcy in disturbed areas, as the number of armed groups has gone up after the act was established. Many even hold it responsible for the spiralling violence in areas it is in force.
Manipur’s human rights activist Irom Sharmila is on an indefinite hunger strike for over 15 years, demanding the withdrawal of the act in her home state.
The justice Jeevan Reddy Committee was set up in 2005 to review Afspa and make recommendations. It recommended that Afspa should be repealed and the Unlawful Activities Protection Act strengthened to fight militancy. However, no steps were taken to repeal or reform the act.
10. Which was the first state to completely do away with Afspa?
It was applied in Punjab and Chandigarh in 1983 due to secessionist movements and lasted for 14 years until 1997.
While the Punjab government withdrew its DAA in 2008, it continued in Chandigarh until September 2012 when the Punjab and Haryana high court struck it down following a petition filed by a local member of the Janata Dal (United).