THE ARMED FORCES (SPECIAL POWERS) ACT (AFSPA) 1958

THE ARMED FORCES (SPECIAL POWERS) ACT (AFSPA) 1958

 

AFSPA (1958) act enables certain special powers to be conferred upon members of the Armed forces in disturbed areas in the states.

ORIGIN OF AFSPA

  • The Act came into force in the context of increasing violence in the North-eastern States decades ago, which the State governments found difficult to control.
  • The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958.
  • AFSPA is combination of two legislationfirst is for handling the insurgency in North-east passed in year 1958 and second is for handling the situation in of insurgency and terrorism in Jammu and Kashmir passed in the year 1990. Since inception these laws are controversial in the nature. As both laws are more or less same so, they are collectively called as AFSPA.

WHY WE NEED AFSPA?

  • Normal CrPc and IPC provisions are not able to address these violent situations like insurgency and terrorist activity.

DEFINITION
Armed forcesArmed forces under the act means military forces operating and air forces operating, and include any other armed forces of the Union so operating.
Disturbed area

 

Areas are considered disturbed “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities”. This is for the time being declared by notification under section 3 of AFSPA Act, to be a disturbed area.

Power to declare Areas to be disturbed Areas

The Governor of the state or the Administrator in the case union territory or by the central government can declare areas as disturbed areas it may be particular region or whole state after that the armed forces is used to aid the civil power.

Special powers of the Armed Forces

Any commissioned officer, Warrant officer, Non-commissioned officer or any other person of Armed forces equivalent rank.

  • After giving such due warning as he considered 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 areas prohibiting the assembly of five or more persons or carrying of weapons.
  • Arrest without warrant and use of force for that purpose.
  • Destroy any arms dump or destroying the fortified position and shelter.
  • Enter and search the premises over the suspicion without warrant.

 

 

Presently AFSPA is enforced in the 5 states of North East (parts of Arunachal, Assam, Manipur, Mizoram & Nagaland) and J&K.

 

Arguments in Favour of AFSPA –

  • Provide more power to the armed forces to perform their activities to restore the normal situation.
  • If AFSPA prematurely withdrawn the security situation deteriorated and it took more time to store peace there.
  • Normal CrPC provides limited power to deal with violent situation.
  • In disturbed areas the involvement of proxy group are also there so, in order to break that nexus extra-ordinary powers are required. Extra-ordinary powers are also necessary as the armed forces face asymmetric warfare involving raids, ambushes, mines and explosive devices, sabotage etc
  • Effective functioning – A sense of security in the member of Armed forces is essential to function effectively in insurgency and militancy affected areas.
  • Security of nation – Provisions of this act have played a crucial role in maintaining law and order in disturbed areas. Thus, protecting sovereignty and security of the nation.
  • Protection of member of armed forces – It is crucial to empower members of armed forces who constantly face threat to their lives at the hands of insurgents and militants. Its withdrawal would result in poor morale.

Arguments against the AFSPA

  • Misuse of the provisions of Acts like fake encounters, extra-judicial killings, etc.
  • AFSPA is described as draconian, repressive, colonial and archaic law in Indian democracy.
  • AFSPA as license to kill given to the Armed forces.
  • AFSPA can be seen as violation of all other constitutional rights like prevention against arrest and detention, privacy etc.
  • Abolition will bring down the feeling of alienation in people of particular state and especially north-east.
  • Gross violation of constitutional values, Human rights and natural justice in the country.
  • Abuse of power – It has been alleged that immunity granted by the act has led the armed forces to misuse the powers and commit offences like enforced disappearances, fake encounters and sexual assault.
  • Threat to justiciable fundamental rights – It leads to suspension of fundamental rights and liberties guaranteed to the citizens by the constitution. Thus, it weakens democracy.
  • Human rights violations in AFSPA areas are not inquired into and followed by adequate action. Thus, it is against the principle of natural justice.
  • Diminishing credibility of democracy – People’s disillusionment with democratic setup is exploited by secessionists and terror sympathizers, which leads to more violence & more counter violence creating a vicious cycle.
  • Ineffective – Critics argue that this act has failed in its objective of restoring normalcy in disturbed areas although being in existence for about 50 years.

OBSERVATION OF GOVERNMENT COMMITTEES OVER THE AFSPA –

 

 

 

 

The Jeevan Reddy committee to review AFSPA

 

After the years of protest against the AFSPA and issue of human right violation the committee recommended-

1.      After consultation with all the stakeholders committee recommended abolition of AFSPA.

2.      Instead of AFSPA some comprehensive arrangement should be made under unlawful activities prevention act.

3.      Central forces must act to aid civil power.

4.      Only commissioned officer can order to use the force if he/she feels necessary.

5.      Each district must have a grievances cell where these forces are deployed this cell should be independent and competent to enquire into violation of rights.

Justice Santosh Hegde CommitteeJustice Santosh Hegde Committee to investigate fake encounters in Manipur described it as a “symbol of oppression”.
Justice Verma CommitteeJustice Verma committee (on offenses against women in conflict areas) said “AFSPA legitimizes impunity for sexual violence” E.g. Kunan Poshpora incident; Thangjam Manorama case in Manipur.
Second ARC ReportThe 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA.

Role of the judiciary

  • There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement (Naga People’s Movement of Human Rights v. Union of India).
  • In this judgement, the Supreme Court arrived at certain conclusions including:
  • a suo-motto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration;
  • AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’;
  • The declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired;
  • While exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action;
  • The authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.
  • Recently SC ruled that every death caused by armed forces in a disturbed area involving either a common person or an insurgent must be thoroughly enquired into so as to find out whether the killing was extra-judicial or not.
  • Thus there is no absolute immunity for armed forces personnel who commit a crime even in a disturbed area.
  • Supreme Court was hearing the plea demanding probe into 1528 deaths alleged to be fake or extra-judicial encounters by the armed forces in the state of Manipur

CURRENT STATUS OF AFSPA-

  • AFSPA is in force to the North-Eastern States of country fully or partial except the Sikkim, Meghalaya and Tripura (recently in 2018) along with the UT of Jammu and Kashmir.
  • The Supreme Court had removed the blanket immunity to the members of armed forces.

Conclusion –

We cannot run our country on the basis force we need to develop the alternatives.

  • Peace can be established by only synchronised efforts of central and state government along with security forces.
  • Final solution is political one as demonstrated in case of Tripura and Mizoram.
  • There need to work on the mechanism which can lead to the building trust among armed forces and public in general.
  • There is no need to run the country on the basis of bullet while the matter should be resolved on the basis of the ballet

Way Forward

  • Adherence to Human rights – It needs to be emphasized that human rights compliance and operational effectiveness are not contrarian requirements. In fact, adherence to human rights norms and principles strengthens the counter insurgency capability of a force.
  • Robust safeguards – Protection for the armed forces must be accompanied by provisions that ensure responsibility and accountability, within the parameters of law. It is for this reason that robust safeguards need to be incorporated in the existing or any new law. Supreme Court’s judgement should be followed in letter and spirit –
  • Removing ambiguity in law – The terms like “disturbed”, “dangerous” and “land forces” need to be clearly defined to ensure greater clarity.
  • Ensuring transparency – Greater transparency in communicating the status of existing cases to include its display on the army and government’s web sites.
  • Independent inquiry – Every death caused by the armed forces in a disturbed area, be it of a common person or a criminal, should be thoroughly enquired into.