By Kartik Pathania, Amity Law School, Delhi.
Disturbed area is an area where any magistrate or police officer of the rank of Sub-Inspector or Head Constable of Armed Police have been given the right to fire or otherwise use force even to the point of causing death, against any person who is indulging in any activity which results in a serious breach of public order.
Declaring an area as a ‘disturbed area’ falls under the ambit of The Armed Forces (Special Powers) Act. This Act was enacted in 1958 by the Government of India in order to bring things under control in the ‘disturbed area’.
An area is declared by the government as ‘disturbed’ when there are differences or disputes between different religions, racial language or regional groups or castes or communities in that area.
Areas which have been declared as ‘disturbed areas’ are Assam, Nagaland, Manipur (except Imphal Municipal area), Arunachal Pradesh (only the Tirap, Changlan and Longding Districts plus a 20km belt bordering Assam), Meghalaya (confined to a 20 km belt bordering Assam), and Jammu and Kashmir. These terms were for the first time applied to the north-eastern States of Assam and Manipur. The Government of India officially declares a region to be ‘disturbed’ under Section (3) of the AFSPA Act, which empowers the Governor of the State or Union Territory to issue an official notification in the Gazette of India, following which, the Centre has the authority to send in armed forces for civilian aid.
Once a region is declared to be ‘disturbed’, that particular region has to maintain status quo for a minimum of 3 months according to the Disturbed Areas (Special Courts) Act, 1976. The AFSPA gives the Indian Armed Force full authority and power in the areas declared as ‘disturbed’ in the name of assisting civil administration.
- They could fire upon or force against any person for the contravention of any law in the disturbed area;
- They have the authority to arrest suspicious people without warrant;
- They could demolish any building when activities like arms dump or manufacture are carried out;
- They could conduct searches without warrants for evidence to recover a wrongfully confined person or property.
This Act has received criticism from various Human Rights groups, as it administers a wide range of power and immunity to the Army in the conflict ridden areas. No prosecution, suit or other legal proceedings shall be conducted against them except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of the power conferred by this Act. This Act has been referred to as draconian and anti-democratic in nature. It gives a license to kill people indiscriminately. It even fundamentally conflicts with the Fundamental Rights enshrined in the Constitution of India. Such an Act should be declared as void but it is still being enforced in many of the North-Eastern States of India.
AFSPA was enacted in the State of Nagaland in 1958. It has been around 59 years since the enforcement of this Act in Nagaland.
- It was implemented because the inhabitants of the Naga hills which extend across the Indo-Burmese border came under one banner of Naga National Council (NNC), aiming for a common homeland and self governance in 1951.
- An election was conducted by the Naga National Council (NNC) in which about 99% Nagas voted for a Free Sovereign Naga Nation.
- NNC boycotted the first general election, government schools and officials.
- It was this time that the Armed Forces Special Power Ordinance, 1958, was promulgated by the then President, Dr. Rajendra Prasad, on 22nd May, 1958. It was replaced by Armed Forces (Assam and Manipur) Special Powers Act, 1958.
Many a times since its enforcement, people have appealed to the government for its revocation but every time its revocation has been cancelled or postponed by the government. It has not been repealed even after a framework agreement was signed in August 2015, by the Naga insurgent group NSCN-IM General Secretary, Thuingaleng Muivah, and the government’s interlocutor, R. N. Ravi, in the presence of Prime Minister Narendra Modi.
Recently, the AFSPA 1958 has been extended for another six months with effect from 30th December, 2017. Government has extended the enforcement of this Act because it is of the opinion that Nagaland is still in a disturbed and dangerous condition. Killings, lootings and extortion are still being carried out in parts of Nagaland, which necessitates the indulgence of the armed forces. It is still far away from the condition where it can be controlled by the State Police.
The government of Nagaland is opposing such an extension of AFSPA while asserting that Nagaland is no longer a ‘disturbed area’. The Secretary of Nagaland feels that the overall situation in Nagaland is by and large peaceful as compared to the other States of the Country. The agencies working for law enforcement of the State are working effectively and efficiently. It is far away from being addressed as ‘disturbed’. In the past decade, not a single casualty has been reported from amongst the soldiers.
Many National and International Human Rights activists and organisations have requested India to repeal this Act as it is neither in consonance with the principles enshrined under International Law nor with the Constitution of India. It violates Article 21 – Right to Life, Article 22 – Protection against Arrest and Detention, Article 14 – Equality before Law, Article 32 – Right to Constitutional Remedies, et al. Amnesty International, a non-governmental organisation, focused on human rights, has urged India to repeal this law. AFSPA also violates the International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory.
Nagaland, since the enforcement of such an Act has suffered a lot. With its introduction, the troop deployed by the Indian Government burnt hundreds of Naga villages. Naga people died due to bombings, succumbed to bullets, starvation, diseases and so on. According to various reports, people were brutally exploited and killed by the Indian soldiers who were granted supreme powers by the Indian government just to prohibit the independence of the Nagas and to impose governmental rule on them. Indian army created a fiasco by destroying several parts of Nagaland like burning and damaging the churches, destroying the hideouts of the Naga armies, burning the jungles, etc.
The people of Nagaland have been denied their right to freedom as it is being abused by the Army. This has led to the development of a feeling of hatred against the Indian Army, among the people of Nagaland. They have been under oppression for almost six decades now.
By continuous implementation and support of an Act like AFSPA, the government is making a mockery of its Constitution. Such an Act should be held unconstitutional.