AFSPA ordinance was first promulgated by the British government to suppress the Quit India Movement in 1942. At the time of independence, Indian Government issued four ordinances on similar lines to check the internal security disturbances due to partition. These ordinances were clubbed together under AFSPA, 1948.
AFSPA 1958 was enacted to curb the violence by the Nagas living in the then unified state of Assam.They did not want to merge their areas with India as they felt, they are racially different from the rest of India. They opposed general election of 1952 and formed a parallel government. As violence continued unabated, government imposed Armed Forces (Assam and Manipur) special Powers Act in 1958. The Act conferred special powers on Armed forces to deal with the disturbed areas of the state of Assam and UT of Manipur.
The Act was later extended to the remaining north eastern states. According to the Act, AFSPA can be enforced only when a state or part of it is declared as ‘disturbed area’, for example, due to border unrest, insurgency and militancy. Similar Acts were imposed in the state of Punjab in 1983 and in the state of Jammu and Kashmir in 1990.
The Act gives unbridled powers to the army. The provisions like, fire upon anyone defying order against unlawful assembly and arrest without warrant, have drawn severe criticism for human rights violations. The Act provides legal immunity to army personnel, and their prosecution requires a prior approval of the central government.
According to its critiques, AFSPA is worse than the Emergency, for state can not take away right to life even during emergency and its continuance is subjected to parliamentary approval. Under AFSPA , armed forces have right to shoot on sight on mere suspicion.
Similarly , Art 22 provides us the right to be informed about grounds of detention, right to be defended by a lawyer and right to be produced before court within 24 hours of arrest. No such right is available for a person arrested under AFSPA.
This treatment is perceived as discriminatory by inhabitants of these states. The alienation caused due to this further foments people to go against the state. The blanket immunity provided to armed forces protects them against prosecution. So, unlike other Indians who can seek judicial remedy under Art 32/226, an arrestee under AFSPA appears to have no remedy.
Those who support the Act, consider it necessary to tackle malicious intents of neighboring countries against India. Though the internal situation has improved in these states over the years, there is still a possibility that non state actors resort to violence again.
Due to the constant infiltration by terrorist groups based in Pakistan on Kashmir border, and their attempt to radicalize Kashmiris has made proponents of the AFSPA to support its continuance in the state.
Army, too, admits its mistakes about human rights violation, and is said to have reduced allegations against its personnel from 1170 in 1999 to 4 in 2011. There is an established system to look into all allegations.
As per Army, the suggested measures like imposition of the Act in selected areas of state would make it difficult for the Army to operate against insurgents and terrorists. Operation through CrPC under the directions of magistrate will delay the counter insurgency operations of the army.
It is true that the situation in these states is volatile and the decision of removal or continuance of the said Act requires comprehensive talks at both centre and state level. But drawing an analogy between similar secessionist tendencies in Punjab in 1980s, imposition and then subsequent removal of AFSPA in 1997, shows that to a large extent, development acts as a counter measure to suppress these anti state tendencies.
Situation, for example, in north eastern states started worsening because of ineffective governance in those states. Funds allocated to tribal people in these areas never reached them. Gradually, they lost interest in Indian political system and started struggling against the state. When government fails to address the plight of its masses, opportunists will start reaping the benefits by radicalizing people to meet their own ends. The same is happening in north eastern states for past one decade now.
Kashmir is a difficult issue to deal with. But certain measures can help take people into confidence. Like, complaints against army personnel for human rights violation should be looked into without any delay. Some accountability mechanism should be incorporated in provisions like ‘blanket immunity to personnel ‘, but at the same time, they should be protected against frivolous complaints.
The same strategy of development should be adopted in Kashmir to provide people with employment so that the youth channelize their energy in right direction. With time, when situation comes back to relatively normal, army can by deployed only on border areas, and civilian government can be given charge to tackle any incident of violence within the state, like any other state of India.
India is an interesting mix of various religious and ethnic identities. It is not easy to keep the required balance always, but both central and state governments have to constantly strive hard to keep this balance intact in order to materialize the goals enshrined in the constitution.