Voices To Repeal AFSPA Renews : Supreme Court Laid-Down Guidelines For Armed Forces Operating Under Concerned Law

Posted in Featured, Nagaland, Northeast


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Amid the escalating demands from different quarters of Northeastern regions to repeal the Armed Forces (Special Powers) Act (AFSPA), let us have a look on the guidelines laid down by Supreme Court (SC) for the armed forces who are acting across areas – protected under the law.

There is a widespread controversy regarding the constitutional validity of this Act. This validity was challenged in the SC through the 1997 case of Naga People’s Movement of Human Rights v. Union of India (UOI).

Such provisions were laid down to ensure that the Act could not be misused.

According to Hindu report, the judgement advocated “caution and use of minimum force against our own people.”

In general words, the judgement basically depicted the greatest outrage of AFSPA, which is violation of the ‘Right to Life’.

This right comes under Article 6 of the International Covenant on Civil and Political Rights (ICCPR) & Article-21 of the Indian Constitution.

Therefore, the law clearly indicates that no situation, or state of emergency, or internal disturbance, can justify the suspension of this right.

According to Hindu report, Section 4(a) of the AFSPA shows that utilization of deadly force should be employed only under “certain circumstances”.

“Power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances” – noted the Court.

Such provisions include a declaration by high-level authority to specify an area or region as “disturbed”.

Based on maintenance of public order, the officials can decide the necessity of using deadly force. But “due warning” is required prior to conducting such deadly forces.

The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area” – the report further adds.

Therefore, armed forces must ensure that minimal force has been used for “effective action against the person/persons acting in contravention of the prohibitory order.”

“Remember that the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration,” – informed a July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association.

“Operations must be people friendly, using minimum force and avoiding collateral damage – restrain must be the key”, – added the same.

It also noted that if “members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are ‘enemy’ not only the rule of law but our democracy would be in grave danger”.

The act was passed by the Parliament of India to provide special legal security to the armed forces for initiating operations in the troubled areas of Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland, and Tripura. However, in 1990 the act was extended to the state of Jammu & Kashmir to deal with rising insurgency along the region.

After the heinous crime committed by Indian Armed Forces through incessant firing on innocent civilians by mistaking them as insurgents of Yung Aung faction of the banned militant outfit – National Socialist Council of Nagaland-Khaplang (NSCN-K), voices to repeal the AFSPA along Northeast regions got louder.

Recently, the Nagaland Chief Minister Neiphiu Rio has also demanded for its repeal. However, on Monday – the Nagaland cabinet has decided to urge Centre for repealing the concerned Act.

Its worthy to note that on June this year, the Centre had declared Nagaland as “Disturbed Area” and further extended the operation of the Armed Forces (Special Powers) Act, 1958 for 6 more months. The AFSPA has been in force in Nagaland for several decades.

Disturbed Areas (Special Courts) Act, 1976, asserts that once declared “disturbed”, the area has to maintain the status quo for a minimum of three months. Under this act, in a “disturbed” area, an officer has full power to warn, or open fire and other kinds of forces against the person who is acting against law.

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