The Armed Forces Special Powers Act, 1958 was passed by the Indian Parliament on Sep11, 1958. The Act conferred special powers upon the Armed Forces in “disturbed areas” in the state of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The Act was later extended to the state of Jammu & Kashmir as the Armed Forces (J& k) Special Powers Act, 1990.
According to AFSPA, in an area declared “disturbed”, an officer of the armed Forces has following powers:-
“Fire upon or otherwise use force, even to the extent of causing death, against any person, who is acting in contraventions of any law” against “ assembly of five or more persons” or in possession of deadly weapons.
To arrest without warrant and with the use of “necessary” force anyone who has committed certain offenses or is suspected of having done so.
To enter and search any premise in order to make such arrest
The Act gives legal immunity to the Armed Forces. There can be no prosecution, suit or any other legal proceeding against any one acting under the law. Nor is the Government’s decision on why an area has been declared “disturbed” subject to judicial review. The Manipur State Govt withdrew the Act in some parts in Aug 2004. But it is active in the state of Jammu & Kashmir since July 1990. The Act came under scanner following three months long violence in the state since July 2010.
4. Opposition & Criticism.
(a) The Act has invited national and international condemnation as it violates the human rights standards. In 1991, UNHRC questioned the validity of AFSPA. Besides questioning the constitutionality of the AFSPA under Indian law, the committee members asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights (ICCPR).The second United Nation protest against AFSPA came in 2009 when United Nation Commissioner for Human Rights Navanethem Pillay in 2009 asked India to repeal AFSPA, citing that the Act breached “contemporary international human rights standards”
(b) An International NGO, Human Rights Watch criticized AFSPA as a, “tool of state abuse, oppression and Discrimination.” Human Rights Watch said that abuses facilitated by the AFSPA, especially extrajudicial killings, torture, rape and “disappearances,” have fed public anger and disillusionment with the Indian state. This has permitted militant groups to flourish in the northeast and Jammu and Kashmir. The AFSPA has not only led to human rights violations, but it has allowed members of the armed forces to perpetrate abuses with impunity. They have been shielded by clauses in the AFSPA that prohibit prosecutions from being initiated without permission from the central government. Such permission is rarely granted. “Violations under the AFSPA have served as a recruiting agent for militant groups,” said Ganguly. “In both Kashmir and the northeast, we have heard over and over again that abuses by troops, who are never punished for their crimes, have only shrunk the space for those supporting peaceful change.”
(c) Indians have long protested against the AFSPA. The Supreme Court has issued guidelines to prevent human rights violations, but these are routinely ignored. Since 2000, Irom Sharmila, an activist in Manipur, has been on hunger strike demanding repeal of the act. The government has responded by keeping her in judicial custody, force-fed through a nasal tube, and has ignored numerous appeals for repeal from activists in Jammu and Kashmir. Following
widespread protests after the 2004 murder in custody of an alleged militant called Manorama Devi in Manipur, the Indian government set up a five-member committee to review the AFSPA. The review committee submitted its report on June 6, 2005, recommending repeal of the act. In April 2007, a working group on Jammu and Kashmir appointed by the prime minister also recommended that the act be revoked. However, the cabinet has not acted on these recommendations because of opposition from the armed forces. There has long been international criticism of the AFSPA. Over 10 years ago, in 1997, the United Nations Human Rights Committee expressed concern over the “climate of impunity” provided by the act. Since then, the UN Special Reporter on extrajudicial, summary or arbitrary executions (2006), the Committee on the Elimination of Discrimination against Women (2007) and the Committee on the Elimination of Racial Discrimination (2007), have all called for an end to the AFSPA. Human Rights Watch said that the government should follow its own example when in 2004 the government of Prime Minister Manmohan Singh repealed the widely abused Prevention of Terrorism Act (POTA). POTA was enacted soon after the September 11, 2001 attacks on the United States and allowed security agencies to hold suspects for up to 180 days without charges. In practice, the law was often used against marginalized communities such as Dalits (so-called “untouchables”), indigenous groups, Muslims, and the political opposition. “The Indian government acted with principle when it repealed the
controversial Prevention of Terrorism Act,” said Ganguly. “It must display the same courage now in repealing AFSPA.”
(d) According to the reports of Amnesty International regarding the AFSPA, imposed in North-Eastern States in the year 1958 and subsequently in Jammu and Kashmir in 1990, it has proved counter-productive and increased alienation of the people to alarming levels. Even when it is being admitted in subtle voice that AFSPA has worsened the situation instead of improving, few efforts are being made to review the same.
(e) Human Rights organizations have been reportedly saying that application of laws like the AFSPA has generated a feeling of alienation among the locals against the armed forces. They suggest that a situation of internal disturbance involving the local population requires a different approach suggesting that involvement of armed forces in handling such a situation brings them in confrontation with their own people.
(f) Removal of AFSPA from J&K is a contentious issue as the Central Government, State Government and Indian Armed Forces are divided on the issue. The top political leaders in Kashmir are demanding the withdrawal of AFSPA because there have been accusations that the Armed Forces have misused the powers and have committed human rights violation in the garb of
collateral damage during anti-militancy operations. The State Government has further suggested that the Act should be diluted or removed from the parts of J&K. The Home Ministry also wants the Act to be removed from the parts of the state where the militancy related violence has reduced. In a seminar on Kashmir on Jan 14 at the Jamia Millia University, Delhi, the Home Secretary of India Shri G k Pillai made the following statement, “Why can’t the State Government take a decision, take a leap of faith and notify all the J&K or parts of it are not disturbed now? The AFSPA applies to the areas which the State Government notifies as disturbed. If the area is no longer disturbed, the AFSPA doesn’t apply”. [16] But the Defence Ministry is opposed to this idea because it feels that the Act is a “necessary blanket” which the Indian Armed Forces require to fight militancy.
The Armed Forces Special Powers Act is applicable in ‘disturbed areas’ which are notified by the Central and State governments from time to time. It provides certain powers to the security personnel’s while working in these areas. But the Act is highly controversial in nature and is in the limelight since its inception. It is applicable to all the security personnel’s operating in the same area. But the understanding of such legal aspects is different amongst the various forces. A proper synergy between the various security agencies will help in better understanding of such legal issues.