Explained: Controversial Law AFSPA, Back In Focus After Naga Op Killings

The killing of Nagaland villagers in an Army ambush gone horrifically wrong has once again turned the spotlight back on the controversial Armed Forces (Special) Powers) Act of 1958.

On Saturday, 14 villagers and a soldier died in Nagaland's Mon district after an Army op to track down insurgents went off script. A police FIR has said the Army's 21 Para Special Forces "blankly opened fire".

The chief ministers of Nagaland and Meghalaya, both allied to the BJP, are demanding that the Act be withdrawn.

"AFSPA gives powers to the Army to arrest civilians without any arrest warrant, raid houses and also kill people. But there is no action against the security forces. They have created a law and order situation," said Chief Minister Neiphiu Rio.

What is AFSPA

The AFSPA gives the armed forces the power to maintain public order in "disturbed areas". It allows the armed forces the authority to use force or even open fire after warning a person who found to be in contravention of the law.

A "disturbed area" is one where the "use of armed forces in aid of civil power is necessary". Under section 3 of the AFSPA, any area can be declared disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities. The power to declare any territory "disturbed" initially lay with the states, but passed to the Centre in 1972.

The Act also allows the forces to arrest a person and enter and search premises without a warrant.

The controversial law is in place in Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh, besides Jammu and Kashmir. Tripura and parts of Meghalaya were taken out of the list.

The AFSPA also protects security forces from legal proceedings unless cleared by the centre. In the context of the Nagaland violence and killings, there are concerns the centre will cite the law to protect the Army's elite 21 Para Special Forces from investigation.

A murder case has been filed by the Nagaland police against the army unit, accusing the troops of "intent to murder".

Its genesis

The law is based on the Armed Forces (Special Powers) Ordinance of 1942, which was issued during the Quit India movement. Post-Independence, it came into being in the backdrop of rising violence in the northeastern states, which the state governments found difficult to control.

It was enacted by Parliament in 1958, and first implemented in the northeast, and then in Punjab.

The Jeevan Reddy Committee formed in 2004 had recommended a complete repeal of the law. "The Act is a symbol of hate, oppression and an instrument of high handedness," it said.

In 2016, in a rare intervention in a manner concerning internal security, the Supreme Court had ruled that the armed forces cannot escape investigation for excesses committed in the discharge of their duties even in 'disturbed areas'. In other words, legal protection offered by the AFSPA cannot be absolute.

In these many years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property.

The Army's view is that soldiers and officers will be dragged to civilian courts and that frivolous cases will be filed against them if the law were to be repealed.

The AFSPA was repealed in Tripura in 2015, and in 2018 the Centre also removed Meghalaya from the list, while also restricting its use in Arunachal Pradesh.

The 1958 Act applies not only to the three armed forces but also to paramilitary forces such as the Central Reserve Police Force (CRPF) and the Border Security Force.