The rise in huge pressure for the repeal of the Armed Forces (Special Powers) Act of 1958 (AFSPA) is gathering key boost up throughout the Northeast. Massive rallies are being held against the law in Nagaland. The Chief Minister and his Cabinet have backed the demand and Meghalaya’s Chief Minister has also joined in. In Assam, large rallies are being held by student organizations against the Act. The catastrophe that happened in Nagaland has shocked the nation’s conscience. The death of 14 civilians and a soldier, on the face of it, was essentially caused by gross intelligence failure. An egregious error in judgment has led to the killing of the innocent. The executive excess had a devastating effect, given the irrational immunity provided by the law. The behavior of the commando unit was instigated and abetted, at least indirectly, by the Armed Forces (Special Powers) Act (AFSPA), 1958, in which lawlessness became the law. Such incidents are a culmination of the impunity granted to the Army by the statute. It is unfortunate that the incident might adversely impact the country's progress in the discourse with the armed rebels in the Northeast.
The AFSPA – like many other controversial laws – is of a colonial origin. The AFSPA was first enacted as an ordinance in the backdrop of the Quit India Movement launched by Mahatma Gandhi in 1942. A day after its launch on August 8, 1942, the movement became leaderless and turned violent in many places across the country. Leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel and a host of others had been put behind the bars. Shaken by the massive scale of violence across the country, the then Viceroy Linlithgow promulgated the Armed Forces (Special Powers) Ordinance, 1942.
The Armed Forces (Special Powers) Act was enacted in 1958 by the parliament of India and grants extra-ordinary powers and immunity to the armed forces to bring back order in the disturbed areas. Some of these extraordinary powers include:
Armed forces personnel have legal immunity for their actions.
Presently AFSPA is enforced in the 6 states of North East and J&K. Tripura recently decided to lift this act.
The key provision of AFSPA is the sweeping empowerment of individuals from the police and the military and the paramilitary forces to open fire “if he is of the opinion that it is necessary to do so for the maintenance of public order”. The forces could use force “even to the causing of death” and would be immune from prosecution for their actions except with the sanction of the Central government.
Second, they could destroy anything they thought was a hideout, a fortified position or shelter from which an attack could be made. And they could arrest and detain without a warrant anyone they wanted and could use force in effecting the arrest. What happens when you give armed men such freedom in a place that has been declared hostile by the State is not difficult to imagine.
In simple terms, AFSPA gives armed forces the power to maintain public order in “disturbed areas”. They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law. If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search a premises without a warrant; and ban the possession of firearms. Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.
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The Indian Parliament has enacted three different acts under AFSPA for different regions
1. Armed Forces Special Powers (Assam and Manipur) Act, 1958
Post-Independence AFSPA was first enacted to deal with the Naga insurgency in the Assam region.
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. When the situation worsened, the state government of Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, thus providing a legal framework for the paramilitary forces and the state police forces to combat insurgency in the region. But the Assam Rifles and the state police forces could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) set up a parallel government in 1956. To tackle this threat, The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President Dr. Rajendra Prasad on 22 May 1958. It was later replaced by the Armed Forces (Assam and Manipur) Special Powers Act of 1958. The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowered only 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’. The reason for conferring such power as per “Objects and Reasons'” included in the Bill was that “Keeping in view the duty of the Union under Article 355of the Indian Constitution, interalia, to protect every State against any internal disturbance, it is considered desirable that the Central government should also have the power to declare areas as ‘disturbed’, in order to enable its armed forces to exercise special powers”. It was later extended to all North-Eastern states.
2. The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act in 1983, by repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance of 1983, in order to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh which was battling the Khalistan movement in the 1980s. In 1983 the Act was enforced in the whole of Punjab and Chandigarh. The terms of the Act broadly remained the same as that of the Armed Forces Special Powers Act (Assam and Manipur) of 1972 except for two sections, which provided for additional powers to the armed forces
As the Khalistan movement died down AFSPA was withdrawn in 1997, roughly 14 years after it came into force. While the Punjab government withdrew its Disturbed Areas Act in 2008, it continued in Chandigarh until September 2012 when the Punjab and Haryana high court struck it down.
3. 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. If the Governor of Jammu and Kashmir or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition then this Act can be imposed. 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. Implementation of AFSPA in J&K has become highly contentious but it still continues to be in operation.
Why is this Act Controversial?
This Act provides the security personnel with absolute powers without being accounted for. This leads to various atrocities and human rights violations by the security agencies. AFSPA violates the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture( India is a signatory, but it has not ratified it). BP Jeevan Reddy committee examined it in relation to the Northeast in 2005, and the Veerappa Moily report of the Second Administrative Reforms Commission of 2007, recommended that the Act be repealed. The reports of the Justice Verma Committee (2013) and the Justice Hegde Commission (2013) supported the need to address the abuses committed under the AFSPA and end the effective impunity enjoyed by security forces. The Supreme Court-appointed Hegde Commission (2013) found that all seven deaths in the six cases it investigated were extrajudicial executions, and also said that the AFSPA was widely abused by security forces in Manipur.
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It has been alleged that immunity granted by the act has led the armed forces to misuse the powers given to them by this act and commit offences like fake encounters and sexual assault. This gross human rights violation weakens people’s faith in democracy and leads to vicious circle syndrome. This leads to suspension of fundamental rights and liberties guaranteed to the citizens by the constitution. This weakens democracy. It has been alleged that the sweeping powers without accountability has resulted in making armed forces unprofessional and insensitive. Critics argue that this act has failed in its objective of restoring normalcy in disturbed areas despite being in existence for about 50 years. The Government of Tripura recently decided to lift this controversial act from the state. However the power to lift this act lies with the Governor or the Centre.
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It is essential for the armed forces to function effectively in insurgency and militancy-affected areas. Provisions of this act have played a crucial role in maintaining law and order in disturbed areas. Thus protecting the sovereignty and security of the nation. Hundreds of armed forces personnel lose their lives every year at the hands of insurgents and militants. It is crucial to empower them. Withdrawal would result in poor morale.
Judicial intervention in dealing with AFSPA:
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 judgment (Naga People’s Movement of Human Rights v. Union of India). In this judgment, the Supreme Court arrived at certain conclusions including (a) a suo-motto declaration can be made by the Central government, however, it is desirable that the central government should consult the state government before making the declaration; (b) AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’; (c) the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired; (d) while exercising the powers conferred upon him by AFSPA, the authorized officer should use the minimal force necessary for effective action, and (e) the authorized officer should strictly follow the ‘Dos and Don’ts’ issued by the army. On November 19, 2004, the Central government appointed a five-member committee headed by Justice BP Jeevan Reddy to review the provisions of the act in the northeastern states. The committee submitted its report in 2005, which included the following recommendations: (a) AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967; (b) The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and (c) grievance cells should be set up in each district where the armed forces are deployed. The 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA.