The AFPSA and its Disturbed Areas Analysis
- Parkhi Gupta
- July 5, 2023
- Research Paper
Abstract
The research studies the historical and constitutional validity of Armed Forces Special Powers Act. The Bill was passed by both the houses of Parliament on 11th September, 1958 and later, the AFSPA Act was formulated. It came into force as a result of increasing violence in the North-eastern States. It was difficult for the respective state governments to control the situation and thus, this act authorized them with the power to maintain public order in “disturbed areas”. Firstly, the history of AFSPA is discussed, throwing light on the rationale, orientation of its idea and questions regarding its deliberation and formulation. The validity of the act is analysed on the basis of its historical context, i.e., dharma, law and morality. Also, its constitutional validity is examined further. The study then highlights the functionality of AFSP in the current perspective, listing the states and regions where it is prevalent and the time-span for which it was existent. Further, citizens’ perspectives are taken into consideration for the same. An international comparative analysis is done between AFSPA and international laws which are similar to it. A brief description of international laws which govern aspects falling under the AFSPA act is made. Several committees have been formed to put a check on the validity of the same. Its decisions as well as several judgements have been discussed in this study. Therefore, this research paper aims to study and analyze the AFSPA Act from a multi-dimensional view thereby drawing a conclusion on its necessity as well as considering the criticism of the same.
Key Words – AFSPA, Constitution of India, International, Human rights, Judgements.
Methods and Practices
For the research paper, I have undertaken a doctrinal research mode and referred to past judgments and the authoritative precedents of India’s High courts and supreme courts of the territory. We have also taken reference from the various acknowledgeable journal articles and publications written within the specific context of AFSPA. Furthermore, we have extensively researched the reports published by international organizations such as the United Nations Human Rights Council (UNHRC). We have also taken data from the developmental reports laid out by international organizations and NGOs working on a global scale. We have covered newspaper articles cited from the source after due cognizance of the same. Keeping the research in mind, we have tried to formulate a conclusive report hereafter, the aforementioned data would be used to justify our main research point.
Limitations of the Research: I could not conduct the research in an empirical format by collecting data from the grass root level due to academic and resource limitations, and one of the other limitations faced by the group includes, the group might have missed some of data and might not have analysed all the viewpoints which can arise out of the said topic of discussion, due to paucity of time and resources.
INTRODUCTION
The Armed Forces Special Powers Acts promulgated in 1958, which gives overriding powers to the armed forces to maintain public order in the “disturbed areas”, finds its roots in the act passed in British India in 1942. Lord Linlithgow, the then Viceroy of India, enacted the Armed Forces Special Powers Ordinance on 15th August 1942 to curb the Quit India Movement launched by Mahatma Gandhi a week earlier (9th August). Gandhi, in this movement, gave the slogan “Do or Die” and demanded complete and immediate withdrawal of the British from the territories of India with the formation of a provisional government. Lord Linlithgow, under the presidency of Winston Churchill, curbed the movement with the draconian ordinance.
Winston Churchill, while justifying the promulgation of the ordinance, said that an ineffective government could not run a country where there is violence. The government must intervene regardless of the cause. India’s former Prime Minister Pt. Jawahar Lal Nehru, in 1958, echoed the words of Churchill while passing the Armed Forces (Special Powers) Act.
The Britishers encroached upon the Naga hills owing to their vested interests in tea plantations. The British administrative policies towards Nagas in the region were focused on protecting their interests in the region. Naga region was included under Inner Line Permit, 1873, to protect the region from outside externalities. The Naga tribes were, by a Regulation of 1880, excluded from coming under such laws as may be complex or in any way unsuitable to them. Naga region was included under Inner Line Permit 1873 to protect the area from outside externalities. But after World War 1, in 1918, the Nagas who had fought in the war developed a feeling of association and formed the Naga Club. In 1929, the Naga Club presented a proposal before the Simmon Commission to remain out of the proposed scheme of India but instead, they were clubbed as excluded areas.
Realising the ethnic and cultural differences between the tribes of the Northeast and Burma from those of mainland India and Burma, Sir Robert Reid, a former deputy commissioner of the Naga Hills district and the governor of Assam, proposed a plan in 1941 to create a Trust Territory called Crown Colony, which would include the Naga Hills, North East Frontier Areas, and the Hill areas in upper Burma. But the Nagas themselves disagreed because they were adamant about seeking liberty from the Britishers.
Eventually, the Nagas actively participated in World War 2. After the battle, the Naga Hills Deputy Commissioner established a group named the Naga Hills District Council to fix the harm inflicted upon them. This group, later, in April 1946, was metamorphosed as the Naga National Council (NNC) and demanded independent status. Pt. Jawahar Lal Nehru, the Congress President, declined any such request. Nehru then sent Sir Akbar Hydari, the Governor of Assam, to discuss the issue with the Naga leaders. The Naga people and Sir Akbar Hydari then signed the nine-point agreement, but it was not celebrated for being vague and loosely worded. Being denied anything concrete, the NNC declared Naga National Independence on 14th August 1947 and further refused to celebrate India’s Independence.
There was no mention of the nine-point agreement in the draft of India’s Constitution which further instigated the Nagas who later declared a separate state in 1950, with AZ Phizo as their head. The NNC, additionally, in 1951, conducted a plebiscite where 99.9% of people voted in support of a “sovereign Nagaland”. To further their demands, Phizo organised the Naga underground army. The Indian government, under PM Nehru, deployed the Indian Army and enacted the Assam Disturbed Areas Act in 1955 in the whole of the Naga Hills District.
This resulted in Phizo establishing the “Federal Government of Nagaland” on March 22, 1956. The new group included a military branch to deal with the Indian soldiers, who the separatists said had violated their civil rights. Regardless, in August 1957, the moderates planned an all-tribes Naga congress in Kohima, which representatives from every tribe attended. The Naga Hills district of Assam and the Tuensang division of the North East Frontier Agency (NEFA) were placed under the External Affairs Ministry as part of the resolution that called for a negotiation to resolve the Naga issue. The radicals were not pleased by this negotiation, and it resulted in increased rebellious activities in the region.
The Government of India enacted and promulgated the Armed Forces (Special Powers) Act 1958 in order to maintain peace and stability in the region.
The Introduction to the Act read:
“Violence became the way of life in the north-eastern States of India. State administration became incapable to maintain its internal disturbance. Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated by the President on 22nd May of 1958. In which some special powers have been given to the members of the armed forces in disturbed areas in the state of Assam and Union Territory of Manipur. Later the Ordinance was replaced by the Armed Forces Special Powers Bill.”
The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it received the assent of the President on 11th September, 1958. The act applied to the Naga Hills, then part of Assam. In the following decades, it spread, one by one, to the other Seven Sister States in India’s Changlang, Longding and Tirap districts of Arunachal Pradesh, and areas falling within the jurisdiction of the eight police stations of districts in Arunachal Pradesh bordering the State of Assam. Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An act passed in 1990 was applied to Jammu and Kashmir and has been in force since. The Act was further revoked from Tripura and Meghalaya in 2015 and 2018 respectively[i]. Another such act, Armed Forces (Jammu and Kashmir) Special Powers Act[ii] was approved in 1990 and has been implemented to Jammu & Kashmir ever since.
Currently, the Armed Forces (Special Powers) Act 1958 has been amended to reduce disturbed areas in Nagaland, Assam and Manipur after decades[iii]. Out of the 30 districts in Assam originally designated as disturbed areas, only 9 remain entirely under AFSPA while the Act partially governs 1. The Disturbed Area Notification has been withdrawn from 15 police stations in 7 districts in Nagaland. In Manipur, 15 police station areas in 6 districts are excluded from the disturbed area notification, but it will remain effective in 16 districts in the state.
[i] https://pib.gov.in/PressReleasePage.aspx.
[iii] https://pib.gov.in/PressReleasePage.aspx.
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