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Armed Forces (Special Powers) Act (AFSPA)

Armed Forces (Special Powers) Act (AFSPA)

AFSPA-1

Armed Forces (Special Powers) Act (AFSPA)

Armed Forces (Special Powers) Acts is collective name of several acts passed by Indian parliament for providing special powers to the Indian Armed Forces and to provide army officers and jawans legal immunity for their actions in disturbed areas.

Historical Background
The British had promulgated the Armed Forces Special Powers Ordinance in 1942 to suppress the Quit India Movement. On the lines of this ordinance, the Government of India promulgated four ordinances in 1947 to deal with internal security issues arising due to partition in Bengal, Assam, East Bengal and United Provinces. These ordinances, which later became acts, were repealed in 1957 but a year later, re-enacted in Assam and Manipur as Armed forces (Assam & Manipur) Special Powers Act 1958 due to growing Naga insurgency. Gradually, the scope of the act was extended to all seven states of North East. Later, the act was extended to Punjab and Chandigarh via Armed Forces(Punjab and Chandigarh) Special Powers Act in 1983. This act was withdrawn in 1997. In 1990, the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted.

 

Key Provisions of the Act
The salient provisions of this act are as follows:

  • Governor of the State and Central Government are empowered to declare any part or full of any state as disturbed area if it is in their opinion that it is necessary to prevent terrorist activity or any such activity that might disrupt the sovereignty of India or cause insult to the national flag, anthem or India’s Constitution.
  • Section 4 of the act gives special powers to army officers in disturbed area to shoot (even if it kills) any individual who violates law / or is suspected to violate law (this includes assembly of five or more people, carrying of weapons) etc. The only condition is that the officer has to give warning before opening fire.
  • Arrest anybody without a warrant, and carry out searches without consent.
  • Once a person is taken into custody, he / she has to be handed over to the nearest police station as soon as possible.
  • Prosecution of the officer on duty needs prior permission of the Central Government

Current Areas that come under AFSPA
Currently, AFSPA act is in force in the following areas.
Assam
Assam was the first state to have the AFSPA in 1958. Current act is in force in the state since November 1990, when ULFA’s activities were at peak. Currently, the entire state except Guwahati municipal area comes under AFPSPA.

Meghalaya
AFSPA is in force in Meghalaya only in a belt adjacent to 20 km of its boundary with Assam. This 20 Kilometres belt comes under disturbed area so that the armed forces in Assam are allowed to go into it in hot pursuit of the rebels.

Arunachal Pradesh
In Arunachal Pradesh, the AFSPA is in force in three districts viz. Tirap, Changlang and Longding; and also a 20 kilometre belt along the Assam Border. In March 2015, the government had brought entire state under AFSPA but due to protect from the state government, withdrew it.

Mizoram
The condition of the act in Mizoram is vague and unclear. The act has not been “applied” in Mizoram, since 1986 when Mizo Accord was signed. However, since there is not clarity, if this act was lifted from there, AFSPA should be considered a sleeping law in Mizoram.

Nagaland
The act was in force in Nagaland area even before the state came into existence in 1961 because at that time, state was Naga Hills district of Assam. The act is in force in the state since then. Things are changing gradually there as NSCN(IM) is in talk with centre.

Manipur
The law is in force in Manipur except in Imphal municipal area.

Tripura
Tripura was under AFSPA since 1997. In 2015, the act has been withdrawn from the state.

Jammu & Kashmir
AFSPA is in force in Jammu & Kashmir since 1990.

Criticism of AFSPA
The act has been justified by the security forces by citing the need for armed forces to have extraordinary powers to deal with militancy. However it has been a subject of intense criticism by the civil society, intellectuals and human rights organizations. The criticism of the act is based on the following premises:

  • Firstly, the provisions of the act are inherently flawed. The impunity provided by the law against any prosecution (except by central government permission) is manifested in cruelty and violation of human rights. There have been many cases of rape, torture etc. by the army personnel but none has been prosecuted so far. The most brutal case was of the Thangjam Manorama Devi, a 34-year-old Manipuri, who was arrested by Assam Rifles in 2004 on grounds of being a member of the banned organization. It was claimed by her family members that she was raped and murdered by the security officers. A commission was also formed to investigate the case but the personnel of the Assam Rifles repeatedly denied to appear before the commission and justice is still awaited.
  • Secondly, the grounds of declaration of a disturbed area have not been defined in the act. Moreover, once an area has been declared disturbed it cannot be subjected to judicial review. Critics say that the law does not provide adequate safeguards in application of AFSPA.
  • Thirdly, the power to shoot to the extent of causing death, and search without warrant are in contravention to the Article 21 of the constitution, the right to life, which forms the foundation of all other fundamental rights.
  • Fourthly, the critics say that the law overrides the Crpc which lays down a proper procedure for police personnel in dealing with law and order problems. Unlike Crpc there are no adequate safeguards in the implementation of the AFSPA. Even the SC has stressed the need for following the appropriate procedure especially when security forces work in the aid of civil authorities.
  • Fifthly, the act has not been able to contain insurgency and maintain law and order in the disturbed regions. When it was imposed in the north east there was few insurgent groups but today there are more than two dozen groups operating in the north east. In addition to this there has been rise in the number of civilians killed by the forces.
  • Sixthly, grave human right violations have actually helped the insurgents to mobilize the people against the government. AFSPA has further intensified the demand for autonomy by the people leading to increase in agitations. This gives rise to a vicious circle of continuing law for indefinite period.

1998 Verdict of Supreme Court in Naga People’s Movement Case
The constitutional validity of the law was challenged in the Supreme Court. In a 1998 judgment in the Naga People’s Movement of Human Rights v. Union of India case, the Supreme Court upheld the constitutionality of the law. However, the judgment made some notable conclusions such as:

  • Although Central Government is empowered to declare an area disturbed on its own, it is desirable that it consults the state before making such declaration
  • The act is not conferring any arbitrary powers to declare an area as a ‘disturbed area
  • The declaration should be for a limited duration and there should be periodic review at 6 months.
  • The officers should use minimal force necessary for effective action.
  • The authorized officer should strictly follow the ‘Dos and Don’ts’ issued by the army.

BP Jeevan Reddy Committee
Justice B P Jeevan Reddy committee was appointed in 2004 to review the provisions of the act in the north eastern states. This committee recommended that the AFSPA should be repealed and its appropriate provisions should be included in the UAPA. Further, the powers of the army / paramilitary officers should be clearly demarcated. Moreover, the committee recommended that grievance cells should be created in each district where such law is in force. The report was endorsed by the 2nd ARC report also. But since the conditions of the North East have not improved, the committee report was junked by the Central Government.

Santosh Hegde Committee
The Supreme Court had constituted the Santosh Hegde Committee to investigate six separate cases of possible AFSPA abuse in Manipur. According to the report of the committee, five out of six killings were encounters fabricated by both the Assam Rifles and the Manipur Police. The committee also reported the use of disproportionate force and intrusion of security forces in areas which are not notified as disturbed areas. Even the local police was found to be encroaching its domain in using lethal force thus misusing the immunity granted to security forces. The Commission even went to the extent of saying that AFSPA was an impediment to achieving peace in regions such as Jammu and Kashmir and the northeast. However the government is yet to act on these recommendations.

Which other states are under AFSPA right now?
Assam, Nagaland, Manipur (except the Imphal municipal area), Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam), Meghalaya (confined to a 20-km belt bordering Assam) and Jammu and Kashmir.

Why is this required?
The government (either the state or centre) considers those areas to be ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities.”

How does one officially declare a region to be ‘disturbed’?
Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the centre has the authority to send in armed forces for civilian aid. It is still unclear whether the governor has to prompt the centre to send in the army or whether the centre on its own sends in troops. Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.

What about the state government’s role?
The state governments, as in Tripura’s case, can suggest whether the Act is required to be enforced or not. But under Section (3) of the Act, their opinion can still be overruled by the governor or the centre.

Is the Act uniform in nature?
No. Originally, it came into being as an ordinance in 1958 and within months was repealed and passed as an Act. But, this was meant only for Assam and Manipur, where there was insurgency by Naga militants. But after the northeastern states were reorganized in 1971, the creation of new states (some of them union territories originally) like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA Act to be amended, so that it could be applied to each of them. They may contain different sections as applicable to the situation in each state.

What about Jammu and Kashmir?
There were reports saying that it technically wasn’t a disturbed area after 1998. This is a bit more complex. Jammu and Kashmir (as with a lot of things) has a separate legislation for this—its own Disturbed Areas Act (DAA) which came into existence in 1992. So, as this Indian Express article points out, even if the DAA for J&K lapsed in 1998, the government reasoned that the state can still be declared disturbed under Section(3) of AFSPA.

Is Tripura then the first state to completely do away with AFSPA?
No. It was applied in Punjab and Chandigarh in 1983 due to secessionist movements and lasted for 14 years until there 1997. What is interesting was that while the Punjab government withdrew its DAA in 2008, it continued in Chandigarh till September 2012 when the Punjab and Haryana high court struck it down following a petition filed by a local member of the Janata Dal (United).

Why the Act is a Necessary Evil?
There is no doubt that killings and human rights violations have occurred due to AFSPA but the problems posed by an array of internal and external agents necessitate an act with teeth to deal with them. A soldier deserves all the legal protection for the action he does or judgment he makes on the spot acting in best interest of the country. Our armed forces operate in very difficult circumstances and are much acquainted with actual ground situation than the bedroom patriots. The act needs to continue, however, needs more humane provisions so that state does not take away the right to life of the people.

Why AFSPA has been imposed in J&K and North East but not in LWE affected Areas?
Declaring an area “disturbed” and putting it under AFSPA has been used by the Governments as last resort to deal with the threat to law & order and national security. If the government feels that local police is capable of handling the situation on its own or with the support of the Central Armed Police Forces, there is no need to impose AFSPA. Further, the situation in North East and J&K is different because of visible external influence on the insurgency and terrorism there. The issue of deploying armed forces has been discussed in past; but the government felt that there is a need to build capacity of local police and central armed police forces instead of bringing them directly under army.

What could be the consequences of the Tripura’s decision to withdraw AFSPA?
AFSPA was imposed in Tripura in 1997 in the aftermath of several kidnappings by the National Liberation Front of Tripura (NLFT). It was being renewed every time for the last 18 years. This time when it came for renewal, the state government sought advice of all state departments including the security establishments. Since Tripura has not seen violence for many year by now and also doing well on economic front and has been one of the best governed states in the country, the act has been withdrawn.
The outcomes will be certainly positive. Tripura now can promote itself as insurgency free state and thereby try to attract larger investments for development and upliftment of the people. Given that law and order is a state subject and Tripura has established its reputation for god governance, withdrawal of AFSPA is a sign of positive development.

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