AFSPA

Armed Forces Special Powers Act 

 History of AFSPA:

In the year 1942, the Viceroy of India, Lord Linlithgow, promulgated the Armed Forces Special Forces Act. It was done to suppress the Quit India Movement launched by Mahatma Gandhi.

Indian freedom fighters and the civilians protested by burning down police offices, telegraph and railway lines. These protests were responded with violence by the British.

After this, in the year 1947, Jawaharlal Nehru, the first Prime Minister of India, faced his first insurgency. In Assam, Baptist missionaries converted a majority of the Nagas into Christianity, and a community emerged within themselves called the “Naga National Council”.

In the year 1954, the Naga began an uprising for independence. India’s response to this was to send in hundreds and thousands of Indian Army soldiers from the Assam Rifles to crush the rebellion. It was at this point that Nehru’s government passed the “Armed Forces Special Powers Act” (1958), in the parliament.

This incident was the starting point on how the AFSPA began to be imposed in the various parts of insurgency struck North- East India. A brutal cycle of insurgency and counterinsurgency has been prevalent since then, affecting thousands of people.

 The Armed Forces Special Powers Act, when it was first promulgated was confined to certain “disturbed areas” in the hills of North-east India.

A disturbed area is defined as one that is declared so by a notification under section 3 of the AFSPA. It may be invoked in places “where the use of armed forces in aid of civil power is necessary”.

Moreover, the union government, the state government, or even the administrator of a Union Territory has the powers to declare a whole state or a part of the whole state as a “disturbed area”.

• Currently, the AFSPA is enforced in the whole of Nagaland, Assam and Manipur. It is also imposed in part of Arunachal Pradesh.
• The state of Tripura withdrew the AFSPA in the year 2015, eighteen years after its imposition.
• The act was promulgated in Punjab in the year 1983 and removed by the state government itself in 1997.
• AFSPA has also been imposed in the state of Jammu and Kashmir from the year 1990.

 

Features of AFSPA:

 

 Section 3 of the Act

• The governor of a state or an administrator of a union territory has the power to impose the act if it is felt that either the whole or the part of the country is in such a disturbed condition.
• Only a notification in the central gazette is necessary to declare such an area to be under disturbance and thereby impose the act.
• This section cannot be taken as conferring a power without any limit. There must be a periodic review of the declaration before the expiry of the six months, from when it was first imposed.

Section 4 of the Act

• Empowers armed forces to prohibit the gathering of five or more persons in an area.
• They can open fire after giving a due warning if they feel that any person or people are in the contravention of the law.
• The forces have the power to stop and search any vehicle if they have a reasonable suspicion that the vessel/vehicle might be carrying weapons of any kind.
• If reasonable doubt exists, the army can arrest the person (s) without a warrant, in the case a cognizable offence has been committed.
• The armed forces are permitted to enter and search the premises without a warrant.

Section 5 of the Act

Any person arrested and taken into custody, must, in all circumstances be handed over to the officer in charge, with the least possible delay. This must be accompanied by a report of the cases occasioning the arrest.

Section 6 of the Act

• No prosecution, suit, or any other kind of legal proceeding shall be instituted against a person in respect of any act done or purported to have been done in the exercise of the powers conferred under this act.
• Protection of persons acting in good faith, under the provisions of the act, except if otherwise sanctioned by the central government.

Protests Against AFSPA:

There has been severe insurgency and violence that has marred the state of Manipur since the year 1980 when AFSPA was imposed on this state. This act gave the soldiers impunity from all the acts committed on the region it was imposed. There were several reports of houses being bombed, people being mutilated, and women being raped.

Irom Sharmila, a native of the state of Manipur, in the year 2000, decided to fast indefinitely for the repeal of the AFSPA. She went on a fast for sixteen years. The indefinite fast ended in August 2016, without a successful outcome.

The judgement of SC on AFSPA (2016)

The Supreme court, in a curative petition, held that, whoever the victim may be, there must be a thorough enquiry. This is to apply irrespective of the fact whether the aggressor was a common person or one of the states.

The judge held that this was necessary for the preservation of individual liberties. The court also held that there is no concept of absolute immunity from a trial enjoyed by the army personnel if an offence contrary to the law of the land has been committed by such an army person. Lastly, a thorough enquiry must be conducted on all the encounter killings.

 Should AFSPA be Repealed?

From the above-listed provisions of the act, it can be understood that the act is one of the more draconian legislation to be ever enacted in India.

Under this act, all the security forces are given unlimited powers to carry out any task, or operation- so long as the place has been declared disturbed. Killing, searching a house and vehicles without a warrant, opening fire, all these acts may be done on “mere suspicion” alone, without any procedure to be followed.

Moreover, the enforcement of AFSPA in these states has led to a lot of reports of dacoits, torture, rape of women, as well as arbitrary detention by the army personnel. None of this personnel can be prosecuted for these acts, as they are protected for acting under “good faith” by the provisions enlisted in the AFSPA.

The reasons for declaring an area as disturbed is also often justified by the central and the state governments, such as that it was done to stop the above-mentioned areas from the seceding from the Indian Union. This only goes to show how arbitrary the legislation is and why there is an imminent need to repeal it. The AFSPA also poses a clear danger to the constitutional provisions of India, i.e. freedom of expression, liberty and the rule of law.

 

Should AFSPA Continue?

AFSPA should not be removed as it will encourage miscreants and anti-state people to instigate tensions in the disturbed areas.

AFSPA will also tie the hand of our army which is regarded as the most exemplary one. It will decrease the morale of the army. They will think twice before acting against any person who they suspect as a criminal.

A soldier undergoes psych evaluation and other procedures which confirm his mental faculties. Personnel of the armed forces should be given immunity against things done by them during the heat of the moment.

Therefore, the AFSPA must either be repealed by setting out clear procedures, scrapping of the Act or it must be struck down by the Supreme court as entirely unconstitutional. Amendments may be in the form of making the armed forces more accountable for the attacks committed.

If any officer of the army has been involved in any activity of killings under this act, there must be an independent committee set up to decide whether the officer must be prosecuted or punished for the acts committed.