AFSPA empowers armed troops to protect public order in “disturbed areas.” They have the ability to prevent a gathering of five or more people in a given location, to use force, or even to open fire after providing sufficient warning if they believe someone is breaking the law.

If there is probable suspicion, the army can also arrest someone without a warrant, enter or search a person’s home without a warrant, and prohibit the possession of firearms.

Why have AFSPA

• The Army obviously sees AFSPA as a capstone enabling Act that provides it with the authority it needs to execute counter-insurgency operations effectively.
• If AFSPA is repealed or weakened, the army command believes that battalions’ effectiveness in counter-insurgency operations will suffer, and terrorists or insurgents will seize the initiative.
• Furthermore, unusual circumstances necessitate a unique approach. Given that the army has no police powers under the Constitution, it is in the national interest to grant it specific operational capabilities when called upon to conduct counter-insurgency operations in troubled areas.
• Many fear that repealing the statute will demoralise the armed troops and encourage locals to initiate lawsuits against the army.
• The absence of such a legislative regulation would have a negative impact on organisational flexibility and the use of the state’s security capability. As a result, the security forces would be unable to carry out their mandate.
• AFSPA is required to keep peace and order in troubled areas; otherwise, things will go wild. The law also discourages the expansion of terrorist activity in certain locations.
• Furthermore, the forces understand that they cannot afford to fail when called upon to protect the country’s integrity. As a result, they require the bare minimum of legislation to enable the effective use of military capability. This includes precautions against legal harassment and empowering its officers to decide on the use of the bare minimum of force that they deem necessary.

The issues

• Critics argue that the legislation has failed to contain terrorism and restore normalcy in troubled areas, as the number of armed groups has increased since the act’s inception. Many blame it for the escalation of violence in regions where it is in effect.
• The government’s decision to declare a specific location “disturbed” cannot be contested in court. As a result, many incidences of human rights violations go unrecorded.
• Activists claim that security personnel burned homes based only on the idea that rebels were sheltering inside. They point out that Section 4 allows armed personnel to arrest individuals without a warrant and detain them for several days.
• They also object to Section 6, which protects security forces personnel from prosecution unless the federal government first approves it. According to critics, this clause has led to even non-commissioned officers opening fire on crowds without being required to justify their actions.
• It’s been called a “licence to kill.” The principal criticism of the Act is addressed at Section 4, which grants the armed forces the authority to open fire and even kill if prohibitory orders are disregarded. Human rights activists are concerned that these rules provide security personnel the authority to arrest, search, seize, and even shoot to kill.

Recommendations

• Jeevan Reddy Committee: In 2004, a committee led by Justice Jeevan Reddy was formed to review AFSPA. Despite the fact that the committee determined that the powers granted by the Act are not absolute, it concluded that the Act should be repealed.

It did, however, suggest that key elements of the Act be incorporated into the Unlawful Activities (Prevention) Act of 1967.

• The Reddy Committee’s primary recommendations were as follows:
  • If the circumstances calls for it, the state administration may request that the army be deployed for no more than six months.
  • The Union government may also deploy the armed forces without the state’s request. However, after six months, the situation should be evaluated, and Parliament’s consent should be sought to extend the deployment.
  • Non-commissioned officers may retain the ability to shoot.
  • In each district, the Union government should establish an autonomous grievances cell.
• The Act was referenced in the Justice Verma report as part of a section on crimes against women in conflict zones. “Sexual violence against women by members of the armed forces or uniformed personnel must be brought within the purview of ordinary criminal law,” the report stated, adding that “there is an urgent need to review the continuation of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.” This is consistent with the Supreme Court’s July finding that the Army and police are not free to use excessive force even under the AFSPA.
• The Second Administrative Reforms Commission, led by then-Union law minister M Veerappa Moily, also proposed that AFSPA be repealed and its key provisions integrated into the UAPA. If this course of action is taken, it will be a step backwards that will significantly undermine

Innovative approaches must be implemented to address the practical challenges of ensuring transparency in counter-insurgency operations. The army must be entirely transparent in examining complaints of human rights breaches and bringing violators to justice as soon as possible. Where the charges are proven, exemplary punishment must be meted out.

How to structure:

1. Give an intro about AFSPA
2. Discuss the pros and cons of it
3. Suggest way forward
4. Conclude

Reference:

1. https://www.hindustantimes.com/opinion/afspa-has-no-place-in-a-constitutional-democracy-101638975208685.html