Should Armed Forces Special Powers Act (AFSPA) be Revoked?

Introduction

Armed Forces Special Powers Act-1958, is an Act which has just six sections and was enacted to bestow certain special powers on the Armed Forces operating in the areas declared as ‘disturbed’, under the provisions of Article 355 of the Constitution, among other things, to protect every State against internal disturbance.

Many NGOs, human rights organisations and non-state bodies like the UNO find the AFSPA grossly violating the international laws on human rights and its enforcement is considered to resulting in arbitrary killings, torture, and cruel, inhuman and degrading treatment of the subjects.

However, the commanders of the troops deployed on the ground feel that the Act is highly essential for the proper conduct of operations to counter the menace of terrorism and feel that by providing the necessary flexibility to operate and adequate legal immunity and safeguards, the efficacy of the counter-terror operations is enhanced.

 Historical Background

The history of the Armed Forces Special Powers Ordinance of 1942 goes back to the British era, when, on 15 August 1942, it was promulgated to suppress the Quit India Movement.

Later, the United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance was invoked by the central government to deal with the internal security situation in the country in 1947 which arose out of Partition of India.

Prior to the creation of NE states, when ‘greater Assam ‘ existed as an entity, and included the territory of present Nagaland; in 1951, Naga National Council conducted a unilateral ‘free and fair’ plebiscite and declared that 99% of the Naga people had opted for ‘Free and Sovereign Naga Nation’. They boycotted 1952 general elections and also boycotted government schools and officials.

To tackle the civil disturbance in the area, 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.

As the situation worsened, Assam Rifles was deployed and in the Naga Hills and Assam Disturbed Areas Act of 1955, was enacted to provide a legal framework for the paramilitary forces and the armed state police to combat insurgency in the region.

But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government "The Federal Government of Nagaland" on 22 March 1956.

Finally, 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 Armed Forces (Assam and Manipur) Special Powers Act, 1958 on 11 September 1958.

 Territorial Extent of the Act

In 1972, the territorial scope of the Act was expanded to the five states of the North-East, - Assam, Manipur, Meghalaya, Nagaland, Tripura and to the Union Territories Arunachal Pradesh and Mizoram.

In addition, the words, "The Armed Forces (Assam and Manipur) Special Powers Act, 1958" were substituted by "Armed Forces (Special Powers) Act, 1958", getting the acronym of AFSPA, 1958.

On 15 October 1983, the central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act, to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh.

Once the situation in Punjab stabilised, the Act was withdrawn in 1997, roughly after 14 years of its enforcement.

On 05 July 1990, Armed Forces (Jammu and Kashmir) Special Powers Act, was enacted and was applicable to the whole state of J&K. The provisions of the Act are very similar to the ones which is applicable in the NE states.

 Special Powers under the Provisions of the AFSPA

According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:

After giving such due warning, 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.

Destroy any arms dump, hide-outs, 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 offences 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 handed 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.

Review of AFSPA

Supreme Court in its judgement in 1998 brought in certain restrictions on the exercise of power at various levels while imposing or using the provisions of the AFSPA and ruled that:

Central government to consult the state government before declaring an area as ‘disturbed’.

AFSPA does not confer arbitrary powers to declare an area as a 'disturbed area, the declaration has to be specific to an area and for a limited duration and there should be a periodic review of the declaration after the expiry of every 6 months.

While exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action and 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 B P Jeevan Reddy to review the provisions of the act in the north eastern states.

The committee submitted its report in 2005, which included the following recommendations:

AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967.

The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces.

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.

However, these recommendations have not been implemented.

 Representations against AFSPA

Irom Sharmila of Manipur has been on an indefinite fast for 12 years, seeking the repeal of the act in Manipur. Till date, the government has not agreed to this demand as the insurgency situation in the NE states continues to remain hostile.

J&K Chief Minister, Omar Abdullah also asked the central government to remove some parts of the state which have remained peaceful for the previous few years from the list of 'disturbed areas' and repeal AFSPA from selective areas.

When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. On 23 March 2009 and again on 31 March 2012, UN has asked India to revoke AFSPA, stating that it had no place in Indian democracy.

On 15 Nov 2014, Congress leader, Mr P Chidambaram has created a controversy by tweeting that AFSPA was an "obnoxious law", and said that it has no place in a modern, civilised country.

 Conclusion

It needs to be understood that, even a partial revocation of AFSPA will greatly curtail the freedom of the Forces, to carry out operations. It will be like asking our soldiers to combat terrorism with both their hands tied behind their back.

A soldier deserves all the legal protection he can get, for the result of any action/decision he takes on the spot, acting in the best interests of the situation. The AFSPA does not give unlimited powers to the troops on ground, but, is only an enabling Act that facilitates execution of their duties better.

Perhaps, the separatists and supports of the militants are the actual reasons for the misery of innocent citizens of these states. Army has always been quick to admit its follies, as in the case of mistaken identity in Budgam, where two youths had died in army firing.

Also, Army demonstrated zero tolerance towards human rights violation by punishing those who were found guilty in the case of fake encounter in Machil in Jammu and Kashmir. All five accused were given life sentence by an Army Court Martial.

Considering the extent of disturbance and intensity and frequency of militancy related incidents taking place in the areas notified as ‘disturbed’, it may not be in the national interest to revoke the AFSPA from these states unless the situation improves.