Armed Forces (Special Powers) Act, 1958
||This article is written like a personal reflection or opinion essay rather than an encyclopedic description of the subject. (October 2010)|
The Armed Forces (Special Powers) Act (AFSPA), was passed on September 11, 1958, by the Parliament of India. It grants special powers to the armed forces in what the act terms as "disturbed areas" in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.
The Republic of India has seen a history of insurgency in the states of Kashmir, Punjab, Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. Each of these states are in regions that border with Pakistan or China - countries which India has border disputes with. The AFSPA has been a subject of wide debate and discussion between the government and civilian NGOs.
The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:
- Failure of the administration and the local police to tackle local issues.
- Return of (central) security forces leads to return of miscreants/erosion of the "peace dividend".
- The scale of unrest or instability in the state is too large for local forces to handle.
In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a 'disturbed area'. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.
By Act 7 of 1972, this power to declare areas as being disturbed was extended to the central government.
In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like. 
Armed Forces (Special Powers) Act
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 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.
For declaring an area as a 'disturbed area' there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary .
In December 2006, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report.
The Jeevan Reddy Commission
In 2004, in the wake of intense agitation  that was launched by several civil society groups following the death of Thangjam Manorama, while in the custody of the Assam Rifles and the indefinite fast undertaken by Irom Sharmila, Union Home Minister Shivraj Patil visited Manipur and reviewed the situation with the concerned state authorities. In the same year, Prime Minister, Manmohan Singh assured activists that the central government would consider their demand sympathetically.
The Central Government accordingly set up a five-member committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of the Supreme Court. The panel was given the mandate of "review[ing] the provisions of AFSPA and advise[ing] the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act."
The Reddy committee submitted its recommendations on June 6, 2005.
Non-state Views and Commentary
United Nations view
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. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards."
On 31 March 2012, the UN asked India to revoke AFSPA saying it had the no place in Indian democracy. Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions said "During my visit to Kashmir, AFSPA was described to me as 'hated' and 'draconian'. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well."
Non-governmental organizations' analysis
"This reasoning exemplifies the vicious cycle which has been instituted in the North East due to the AFSPA. The use of the AFSPA pushes the demand for more autonomy, giving the people of the North East more reason to want to secede from a state which enacts such powers and the agitation which ensues continues to justify the use of the AFSPA from the point of view of the Indian Government." - The South Asian Human Rights Documentation Centre
A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by security forces against civilians in Manipur since the passage of the Act. The report states that residents believe that the provision for immunity of security forces urge them to act more brutally. The article, however, goes on to say that repeal or withering away of the act will encourage insurgency.
Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by police such as "extra-judicial executions", "disappearances", and torture; the "Armed Forces Special Powers Act", which "provides impunity for human rights abuses and fuels cycles of violence. The Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such powers because the army is only deployed when national security is at serious risk from armed combatants. Such circumstances, they say, call for extraordinary measures." Human rights organizations have also asked Indian government to repeal the Public Safety Act, since "a detainee may be held in administrative detention for a maximum of two years without a court order.".
Activists who are working in J&K for peace and human rights include names of Madhu Kishwar, Ashima Kaul, Ram Jethmalani, Faisal Khan, Ravi Nitesh, Swami Agnivesh, Dr. Sandeep Pandey and many others. They all accept that people to people communication and development of new avenues are the only way for peace, however laws like AFSPA are continuously violating human rights issues there.
United States leaked diplomatic cables
The Wikileaks diplomatic cables have recently disclosed that Indian government employees agree to acts of human rights violations on part of the Indian armed forces and various paramilitary forces deployed in the north east parts of India especially Manipur. The violations have been carried out under the cover of this very act. Governor S.S. Sidhu admitted to the American Consul General in Kolkata, Henry Jardine, that the Assam Rifles in particular are perpetrators of violations in Manipur which the very same cables described as a state that appeared more of a colony and less of an Indian state.
Earlier leaks had also stated that International Committee of the Red Cross (ICRC) had reported to the United States diplomats in Delhi about the grave human rights situation in Kashmir which included the use of electrocution, beatings and sexual humiliation against hundreds of detainees. This act is in force in Kashmir since 1990.
- “THE ARMED FORCES (SPECIAL POWERS) ACT, 1958”
- “(PDF) The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990” Indian Ministry of Law and Justice Published by the Authority of New Delhi
- Harinder Singh (July 6, 2010). "AFSPA: A Soldier’s Perspective". Institute for Defence Studies and Analyses.
- The Hindu (Chennai, India) http://www.hindu.com/nic/afa/afa-part-ii.pdf
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- Anil Kamboj (October 2004). "Manipur and Armed Forces (Special Power) Act 1958". Institute for Defence Studies and Analyses.
- “(PDF) The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990” Indian Ministry of Law and Justice Published by the Authority of New Deli
- "Naga People's Movement of Human Rights vs. Union of India,1998".
- "MANIPUR ON FIRE". Frontline. September 2004. Retrieved 2011-06-05.
- "United Nations asks Indian govt to repeal AFSPA". IRNA. March 23, 2009. Retrieved 2009-03-24.
- UN asks India to repeal Armed Forces Special Powers Act
- “Crisis in Kashmir” Council on Foreign Relations
- India: Repeal Armed Forces Special Powers Act; 50th Anniversary of Law Allowing Shoot-to-Kill, Other Serious Abuses. Human Rights Watch
- AFSPA South Asian HRDC
- Institute for Defense Studies and Analysis, 'Manipur and Armed Forces (Special Powers) Act 1958' "the alleged rape and killing of Manjab Manorama", "security forces have destroyed homes", "arrests without warrants", "widespread violations of humane rights", "The cases of Naga boys of Oinam village being tortured before their mothers by Assam rifles Jawans in July 1987; the killing of Amine Devi and her child of Bishnupur district on April 5, 1996 by a CRPF party; the abduction, torture and killing of 15-year-old Sanamacha of Angtha village by an Assam Rifles party on 12th February 1998; the shooting dead of 10 civilians by an Assam Rifles party in November 2000 are some of the glaring examples that are still fresh in the mind of Manipuris."
- "Blood Tide Rising". TIME Magazine. January 18, 1993.
- BBC NEWS | World | South Asia | Kashmir's extra-judicial killings
- Behind the Kashmir Conflict - Abuses in the Kashmir Valley
- India: Repeal the Armed Forces Special Powers Act
- Behind the Kashmir Conflict: Undermining the Judiciary (Human Rights Watch Report: July 1999)
- Nambath, Suresh (March 21, 2011). "‘Manipur more a colony of India'". The Hindu (Chennai, India).
- Burke, Jason (December 16, 2010). "WikiLeaks cables: India accused of systematic use of torture in Kashmir". The Guardian (London).
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