SC ends impunity for armed forces in disturbed areas

Supreme Court has ruled that armed personnel cannot just shoot to kill militants who create internal disturbances under the presumption that they are enemies, and would face criminal prosecution if found using excessive force even in areas where the Armed Forces Special Powers Act (AFSPA) is in force.

• The verdict is likely to have far reaching consequences in places where security forces have been insulated by AFSPA to carry out counter-insurgency operations.

Important observations made by the Court:

• Indefinite deployment of armed forces in the name of restoring normalcy under AFSPA “would mock at our democratic process”, apart from symbolising a failure of the civil administration and the armed forces.
• 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.
• There is no concept of absolute immunity from trial by a criminal court if an Army man has committed an offence.

Background:

The judgment came on a plea by hundreds of families in the north-eastern State of Manipur for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters involving the Army and the police.

Implications:

• The verdict tears down the cloak of secrecy about unaccounted deaths involving security forces in disturbed areas and serves as a judicial precedent to uphold civilian and human rights in sensitive areas under military control. Henceforth, a thorough enquiry will be conducted into “encounter” killings in disturbed areas.
• Also, errant armed personnel would face criminal charges notwithstanding the immunity conferred under Afpsa for anything done in “lawful exercise” of “official duties.”

What is AFSPA,1958?

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.

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.

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.”

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.

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.

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.