Armed Forces Special Powers Act (AFSPA)

Introduction

The Armed Forces Special Powers Act (AFSPA)-1958 was enacted by the Parliament on September 11, 1958, to provide necessary powers and legal protection to the Armed Forces while carrying out proactive operations against the insurgents in a highly hostile environment. Since then, the Armed Forces have been able to effectively contain insurgency and establish stability in the region. It grants special powers to the armed forces in what the act calls "disturbed areas". AFSPA was first applied to the Northeastern States of Assam and Manipur, and was amended in 1972 to extend to the other States of Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland.It was later extended to Jammu and Kashmir as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.

Operational Importance of AFSPA

 An analysis of ground realities vis-a-vis the situation in early 1950s makes it evident that the fighting capability of the militants in the North East and J&K has improved considerably over the years. They possess sophisticated weapons, modern communication equipment and have moral and financial support from across the borders. Areas close to the international border witness trans-border movement of militants from their camps and hide-outs in neighbouring countries.

The Armed Forces are required to operate in varied terrain such as thick forests, in far flung areas and also in the built up areas ranging from small hutments and villages to towns and cities, where the insurgents have established their training camps and support bases. Not only do the troops operate in hostile terrain, they also work in an unfriendly population environment exposing themselves to grave dangers demanding very high degree of operational effectiveness. At the same time, the Armed Forces are under pressure to be extremely cautious and avoid collateral damage and loss of innocent lives or property. Any violation or perceived violation attracts media attention and provides a opportunity for propaganda to factions with vested interests. On most occasions, allegations have been found to be false and evidence fabricated but nevertheless, have to be answered, rebutted or contended with. Operating under such environment requires a protective law lest the forces get embroiled in legal battles and their effectiveness is reduced in operations for which they have been deployed in the first place. 

Militants in different parts of the country exploit popular anger and frustration of the people at the failures of the civil administration on the development and welfare fronts. It has to be stopped. In order to get to the root of the problem one needs to take a look at the wider scenario where underground outfits have created violent security situations to further their causes and AFSPA had to be enforced.

It is the duty of the State to harmonize the rights of the individual on one hand and with the requirement of the community on the other. The Central Government vide Art 355 of the Constitution of India is duty bound to protect every State not only against the external aggression but also internal disturbances and to ensure that the governance of every State is carried out in accordance with the provisions of the Constitution of India. 

Provisions under AFSPA

Powers to declare areas to be disturbed areas (Section 3 of the Act)

In relation to any state or Union Territory to which this act extends, the Governor of that State or the administrator of that Union Territory or the Central Government, in either case, if of the opinion that the whole or any part of such State of Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be , may by notification in the Official Gazette,declare the whole or such part of such State or Union territory to be a disturbed area

The Governor is empowered to declare any area of the State as “disturbed area’. It could not be arbitrary on ground of absence of legislative guidelines (Inderjit Barua v.State of Assam)

Section 3 cannot be construed as conferring a power to issue a declaration without any time limit. There should be periodic review of the declaration before the expiry of six months; Naga People’s Movement of Human Rights v. Union of India.

Special Powers of the armed forces (Under the AFSPA)

 Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area can

• Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order, after giving such due warning.

• Destroy any arms dump, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence

• To arrest without a warrant anyone who has committed cognizable offenses or is reasonably suspected of having done so and may use force if needed for the arrest.

• To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.

• Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.

• Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

• Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government's judgment on why an area is found to be disturbed subject to judicial review.

• Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.

  
Demand to Repeal/Revoke AFSPA

According to those who want repeal of AFSPA,the large scale violations of  fundamental rights in the north eastern states and kashmir is a direct consequence of the provisions of the AFSPA.The AFSPA, which grants armed forces personnel the power to shoot to arrest, search, seize and even shoot to kill, violates the Right to Life enshrined in Article 21 of the Constitution of India which guarantees the right to life to all people.The AFSPA also violates the International Covenant on Civil and Political Rights (ICCPR). India signed the ICCPR in 1978, taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens. In particular, the Act is in contravention of Article 6 of the ICCPR guaranteeing the right to life.Some believe that AFSPA seeks to supplant rather than supplement civil authority with military authority in the administration of everyday life.It  blurs the necessary distinctions between the police and the military, between the civilian and the combatant, and between ‘domestic’ and ‘alien’ space.

Jeevan Reddy Commission on AFSPA stated that "the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness." The report also stated that "It is highly desirable and advisable to repeal the Act altogether, without of course, losing sight of the overwhelming desire of an overwhelming majority of the (North East) region that the Army should remain (though the Act should go)".The report recommends the incorporation of AFSPA in the Unlawful Activities (Prevention) Act, 1967, which will be operable all over India.

Provisions against misuse of the Act

It is also an established fact that the judiciary is the custodian of the Constitution. An independent judicial system performs better than any other agency to maintain prefect equilibrium between the liberty of the. individual and the powers of the State. It is in this light, it is emphasized that the Hon'ble Supreme Court of India has upheld the constitutional validity of the Armed Forces (Special Powers) Act. The court further observed that the instructions issued by the military authorities in the form of 'DO's' and DON'Ts while acting under the AFSPA are to be treated as binding instructions which are required to be followed by the members of, the Armed Forces. 

Adequate checks and safeguards are built in the AFSPA to prevent the Armed Forces from assuming sweeping powers. Violations of its provisions are liable for legal action and prosecution. The DO's and DON'Ts issued to the units having found approval of Apex Court have acquired legal status, are binding on the troops which are restraining factors to ensure the guidelines are taken very seriously and promt disciplinary action is taken against the defaulters under Army Act 1950.

It is reiterated that the Armed Forces of the Union deployed in aid of the Civil Powers have to operate in the State concerned in co-operation with the Civil Administration to deal with the situation affecting maintenance of public order which has necessitated the deployment or Armed Forces so that normalcy is restored. Thus the governance of the State yet remains in the hands of Civil Administration and not taken over by the Armed Forces, as is wrongly perceived by many people.The armed forces must act in cooperation with the district administration and not as an Independent body. Armed Forces could work in harmony when they deployed in disturbed area.

From bare reading of the Act, it appears that security forces enjoy vast powers, which are akin to the powers vested in the local police, yet power to investigate the offences remains reserved with the police alone.Arrested persons to be made over to the police –Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

By analysing the issue of safeguard further, it would transpire that the protection envisaged is for only those persons, who act in good faith in discharge of their official duties and not otherwise. Acting in good faith would mean to act without any malice in the discharge of the official duties, i.e., exercising due care and caution. Sec 7 of the Act reads thus :-­

"Protection of persons acting in good faith under this Act. No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act."

The protection under Section 7 would not be available to a member of the security forces, who commits acts which constitute criminal offences not in the discharge of his official duties even in the area which has been declared as disturbed. 

Supreme Court Judgements

Conferment of power on non-commissioned officers like a Havaldar cannot be said to be bad and unjustified ( Inderjit Barua v .State of Assam )

The Governor is empowered to declare any area of the State as “disturbed area’. It could not be arbitrary on ground of absence of legislative guidelines (Inderjit Barua v.State of Assam)

Section 3 cannot be construed as conferring a power to issue a declaration without any time limit. There should be periodic review of the declaration before the expiry of six months; Naga People’s Movement of Human Rights v. Union of India.

In the stringent operating environment it is but human to make mistakes. While mistakes do occur the guilty must be justly punished. Army has been unilaterally taking disciplinary actions against defaulters under the Provision of the Army Act.

Soldier functioning in areas where AFSPA is in place is not above the law of the country. If and when the government feels that a crime has been committed which requires punishment in accordance with the law of the land it retains the right to give sanction for prosecution and put the process of civil law into motion; this by itself places a huge check on the conduct of the forces personnel. Also, trial by a military court is not easy on an offender; military courts are known to mete out swift and more severe punishment than that given by the civilian courts.

The nation has to be assured that personnel from the army, the Para-military forces, the Police services or any other government agency are subject to stringent disciplinary procedures which greatly reduce the possibility of their indulging in such heinous crimes and that the miniscule few who do so are brought to book much faster than their civilian counterparts. The army in particular needs to inform the public about the actions that it has taken and is taking to ensure that its soldiers are properly educated, indoctrinated and monitored to ensure that they do not indulge in barbaric acts. Also the process by which such heinous crimes, if committed, would be handled in places which are under AFSPA should be made public.

The common ground between the supporters and detractors of AFSPA is that, AFSPA can only be a temporary phase to bring normalcy to a disturbed area, restore democratic institutions and create an atmosphere where these institutions can function normally. The main disagreement is on the timing of it’s removal. Increasingly, the public, rightfully, is emerging as an important stakeholder whose opinion has started to matter a lot in issues such as AFSPA.

Details of the Act -- Click Here