Armed Forces Special Powers Act, 1958 (AFSPA) – Paradise under the Shade of Swords
Introduction
The idea and legal framework on AFSPA (Armed Forces Special Powers Act) first originated during the colonial rule. It was further reinstated to combat the internal security issues arising due to the partition. Its main objective is to maintain Law & Order within the Country. As the name goes it provides special powers and privileges to the Armed Forces and Central Armed Police Force (CAPF). AFSPA is invoked when a case of militancy or insurgency takes place and the territorial integrity of India is at risk. It gives the armed forces a free hand in conducting search operations and taking necessary actions based on any given situation.
This law is imposed in highly disturbed areas where there is high number of insurgencies. It is usually imposed in the Border States like Jammu & Kashmir and North-Eastern States, where people illegally migrant into the country with an intention to carry out anti-state activities and many other forms of armed rebellion. While the armed forces and the government justify its need in order to combat militancy and insurgency, critics have pointed out cases of possible human rights violations linked to the act.
Historical background of the Act
The AFSPA like many other controversial laws is of a colonial origin. It was first enacted as an ordinance in the backdrop of a massive scale of violence across the country due to Quit India Movement in 1942. Subsequently, the movement became leaderless and turned violent in many places across the country. It gave the Armed Forces a “license to kill” when faced with internal disturbances. On the lines of this ordinance, the Indian government promulgated four ordinances in 1947 to deal with internal security issues and unrest arising due to partition in four provinces Bengal, Assam, East Bengal and the United Provinces.
Later, the Indian Parliament enacted three different acts under AFSPA for different regions. It empowered the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or the Union Territory as ‘disturbed’. This was done in line of the objects and reasons entailed in the Bill. In the view of Article 355 of the Constitution, the Central Government also had the power to declare areas ‘disturbed’ to protect every State against any internal disturbance by its armed forces to exercise the special powers.
Armed Forces Special Powers (Assam and Manipur) Act, 1958
The Indian AFSPA was first enacted to deal with the Naga insurgency in the Assam region. In 1951, as per the report of the Naga National Council (NNC), 99 percent of Nagas voted for a ‘Free Sovereign Naga Nation’. There was also a boycott of the first general election of 1952 which later extended to a boycott of government schools and officials. In order to deal with the situation, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels. But, the Assam Rifles and State Police forces failed to contain the Naga Rebellion. At this juncture, the Armed Forces (Assam and Manipur) Special Powers Act, 1958 was enacted to tackle the threat. It was later extended to all North-Eastern states.
The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
The Central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act in the state of Punjab and the union territory of Chandigarh which was battling against the Khalistan movement in the 1980s. It was materially similar to the one enacted in Assam. As the Khalistan movement died down AFSPA was withdrawn in 1997.
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
The AFSPA in Jammu & Kashmir was enacted in 1990 in order to tackle the unprecedented rise in militancy and insurgency in Jammu and Kashmir. Jammu and Kashmir has its own Disturbed Areas Act (DAA) separate legislation that came into existence in 1992. Even after the DAA for J&K lapsed in 1998, the government reasoned that the state can still be declared as a disturbed area under Section (3) of AFSPA. Its implementation in J&K has become highly controversial and in the light of the same the Government seeks to withdraw it.
Special powers extended to the Armed Forces under the law
The Act bestows the Armed forces with the power to conduct operations which include the right to search the local people’s premises, vehicles and destroy the property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry. The security forces can “arrest a person without a warrant”, who has committed or is even “about to commit a cognizable offence” even based on “reasonable suspicion”. In case of violation of law, the Armed Forces have the Right to open fire at anyone acting against the Law & Order. The law also prohibits gathering of 5 or more people. It protects the Armed forces from any kind of legal prosecution. It gives them legal immunity to bring back order in areas that are designated as disturbed areas.
Recent Developments
The Act was amended in 1972 and the powers to declare an area as “disturbed” were conferred concurrently upon the Central government along with the States. Currently, the Union Home Ministry issues periodic “disturbed area” notification to extend AFSPA only for Nagaland and Arunachal Pradesh. Tripura revoked the Act in 2015 and Meghalaya was under AFSPA for 27 years, until it was revoked by the MHA from 1st April 2018.
In September, 2023 the Manipur Government declared the entire State as ‘Disturbed area’ and extended AFSPA for 6 months. In October, 2023 the AFSPA was extended to four districts for 6 more months and was withdrawn from four other districts.
In March, 2024 the Home Minister Amit Shah indicated the Government’s willingness to revoke AFSPA and pull back the troops from J&K. Subsequently, the MHA extended AFSPA for 6 months in Arunachal Pradesh, Nagaland and four districts of Assam, effective from April 1st.
Criticism of AFSPA
The Act fails to protect and uphold human rights as witnessed in the case of alleged custodial rape and killings of the Thangjam Manorama by the Assam rifles in 2004. The absolute authority vested in the armed forces to shoot on sight based on mere suspicion and for an offence as basic as violating an order leads to its misuse and violates the fundamental right to life of the people. The absolute power given to armed forces dissolves the inherent rights given under the fundamental rights. The Act immunizes the officers from the prosecution against all the punitive actions. It protects the guards and also facilitates the armed forces to take unwarranted decisions at times is clearly questionable.
Recommendations
The Central Government must make necessary changes to the existing law and address the injustice caused to the people. There must be active efforts by the armed forces and Government to rebuild the trust with the local populace. Likewise, the must be also extend their support to the armed forces to fight terrorism and insurgent activities. Since, the Act extends sweeping powers to the armed forces there is a high probability of its misuse. Hence, there have to be enough measures to be taken to repeal some of the powers when the situation simmers down. The involvement of the state bureaucracy, army and the grass-root civil society organisation in the developmental activities of the state will make the army ‘pro-development than a mere ‘law and order agency. The security forces and the government should fast track existing cases and ensure speedy justice for victims by prosecuting the guilty. They should adopt a transparent process in place of the current opaqueness to deal with allegations of human rights violations by the forces. They must abide by the guidelines set out by the Supreme Court, Committees and the NHRC.
References
https://economictimes.indiatimes.com/topic/afspa
Article written by – Keerthi K