With effect from 30th June, 2020, the operation of Armed Forces (Special Powers) Act [AFSPA] has been extended in the state for a further period of six months as the Central Government has declared the whole of the State of Nagaland to be a ‘disturbed area’.
A notification has been issuedto this effect and is published on the Official Gazette on 30th June. Home Ministryin the notification provided that the area comprising the whole of State of Nagaland is in a disturbed and dangerous condition. Therefore, the use of armed forces in aid of the civil power is necessary, according to the Centre.
The Governor of that State or the administrator of that Union Territory or the Central Government in Section 3 of AFSPA provides that in either case, if of the opinion that the whole or any part of such State of Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case of disturbed area may be , may by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.
AFSPA Background
For more than six decades now, the AFSPA is operating in the state. Wide powers to any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces have been provided in section 5 of the Act:
If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or move persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;
If he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;
Arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;
Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.
Constitutional Validity of AFSPA upheld by the Supreme Court
In Naga People’s Movement, Of Human Rights vs Union of India, a judgment delivered in 1997, the Constitution bench of the Supreme Court had upheld the constitutional validity of the Armed Forces (Special Powers) Act, 1958. Section 3 of the Central Act does not confer an arbitrary or unguided power to declare an area as a “disturbed area” for declaring an area as a “disturbed area” under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union Territory of the Central Government can form an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of the civil power is necessary. Key observations were as follows:
A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.
Although a declaration under Section 3 can be made by the Central Government suo moto without consulting the concerned State Government, but it is desirable that the State Government should be consulted by the Central Government while making the declaration as disturbed area.
The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.
The conferment of the power to make a declaration under Section 3 of the Central Act on the Central Government is not in violation of the federal scheme as envisaged by the Constitution.
SC in 2015 had observed that Restoration of Normalcy cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces.
In 2016, The Supreme Court for AFSPA invocation in the State of Manipur, had observed in Extra Judicial Execution Victim Families Association v. Union of India,
Be that as it may, what is of significance is that this Court has implied that the armed forces of the Union could be deployed in public order situations to aid the civil power and on such deployment, they shall operate in cooperation and conjunction with the civil administration and until normalcy is restored. This view is predicated on and postulates that normalcy would be restored within a reasonable period. What would be the consequence if normalcy is not restored for a prolonged or indeterminate period? In our opinion, it would be indicative of the failure of the civil administration to take effective aid of the armed forces in restoring normalcy or would be indicative of the failure of the armed forces in effectively aiding the civil administration in restoring normalcy or both. Whatever be the case, normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces (particularly for public order or law and order purposes) as it would mock at our democratic process and would be a travesty of the jurisdiction conferred by Entry 2A of the Union List for the deployment of the armed forces in disturbed area to normalize a situation particularly of an internal disturbance.
