02 November, 2019
3 Min Read
Syllabus subtopic: Security challenges and their management in border areas; linkages of organized crime with terrorism
The Cabinet Secretariat has notified rules reasserting the Union Home Ministry as the authority that would decide on the imposition of the Armed Forces (Special Powers) Act (AFSPA) in the Union Territories of Jammu and Kashmir and Ladakh.
Prelims and Mains focus:
AFSPA- features, draconian provisions, misuses and need for review.
What qualifies as a “disturbed area” and who has the power to declare it?
Origin of AFSPA
The Act came into force in the context of increasing violence in the Northeastern States decades ago, which the State governments found difficult to control. The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958.
Special powers given to army officials
Role of the judiciary
There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court upheld the constitutionality of AFSPA in a 1998 judgement (Naga People’s Movement of Human Rights v. Union of India).
In this judgement, the Supreme Court arrived at certain conclusions including:
(a) a suo motu declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration;
(b) AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’;
(c) the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired;
(d) while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action,
(e) the authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.
Has there been any review of the Act?
On November 19, 2004, the Central government-appointed committee headed by Justice B P Jeevan Reddy made the following recommendations: (a) AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967; (b) The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and (c) grievance cells should be set up in each district where the armed forces are deployed.
The 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA.
These recommendations have not been implemented.
Source: The Hindu
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