Context: Recently, Nagaland Cabinet has recommended that the Armed Forces Special Powers Act (AFSPA), 1958 be repealed from the state after the incident in Mon district in which security forces gunned down 13 civilians.
About Armed Forces Special Powers Act (AFSPA)

• AFSPA was originally promulgated by the British in response to the Quit India movement in 1942. 
• After Independence, India decided to retain the Act, which was first brought in as an ordinance and then notified as an Act in 1958.

Where is AFSPA currently invoked?

• AFSPA can be imposed by the Center or the Governor of a state on the state or parts of it after it is declared “disturbed’’ under Section 3 of AFSPA Act.
• The Act defines Disturbed as areas that are “disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary’.

What is a “disturbed area” and who has the power to declare it?

• A disturbed area is one which is declared by notification under Section 3 of the AFSPA. An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities. 
• The Central Government, or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area. 
• A suitable notification would have to be made in the Official Gazette. As per Section 3 , it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
• The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments.

Which States are, or had come under this Act?

• It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh. 
• The Centre revoked it in Meghalaya on April 1, 2018. 
• Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border. 
• In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations and in Tirap, Longding and Changlang districts bordering Assam.
• Tripura withdrew the AFSPA in 2015. Jammu and Kashmir too has a similar Act.

What are the powers granted by the AFSPA Act to armed forces?

The Act gives sweeping powers to the armed forces.

• Firstly, It allows them to ‘open fire’, even causing death, against any person in contravention to the law or carrying arms and ammunition.
• Secondly, It gives them powers to arrest individuals without warrants, on the basis of reasonable suspicion and also search premises without warrants.
• Thirdly, It also provides blanket immunity to security personnel involved in such operations. There can be no prosecution or legal proceedings against them without the prior approval of the Center.

What are the safety nets provided under the AFSPA Act?

• The Act gives powers to security forces to open fire. But this cannot be done without prior warning given to the suspect. 
• The Act further says that any suspects apprehended by security forces should be handed over to the local police station within 24 hours.
• Moreover, it also says that armed forces must act in cooperation with the district administration and not as an independent body.

Naga killings point to AFSPA pitfalls

• The AFSPA gives the armed forces the licence to kill. And when they carry out such shameful operations without keeping the local police in the loop, as has been the practice for long, it gives the message that the Centre just does not care about the peace process.

Naga People’s Movement for Human Rights vs Union of India- SC’s 1997 verdict laid down guidelines for use of AFSPA:

• The 1997 judgment of a Constitution Bench held that the power under Section 4(a) of the AFSPA to use deadly force should be employed only under “certain circumstances”.
• The court noted that the “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
• These preconditions include a declaration by a high-level authority that an area is “disturbed”. The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
• The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.