Armed Forces (Special Powers) Act
|Armed Forces (Special Powers) Act|
|Enacted by||Parliament of India|
|Status: In force|
Armed Forces (Special Powers) Acts (AFSPA), are Acts of the Parliament of India that grant special powers to the Indian Armed Forces in what each act terms "disturbed areas". According to The Disturbed Areas (Special Courts) Act, 1976 once declared ‘disturbed’, the area has to maintain status quo for a minimum of 3 months. One such Act passed on September 11, 1958 was applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one, to the other Seven Sister States in India's northeast. Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An Act passed in 1990 was applied to Jammu and Kashmir and has been in force since.
- 1 History
- 2 The Act
- 3 Non-state views and commentary
- 4 See also
- 5 Footnotes
- 6 External links
The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15 August 1942 to suppress the Quit India Movement. Modeled on these lines, four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance were invoked by the central government to deal with the internal security situation in the country in 1947 which arouse out of the Partition of India.
Armed Forces Special Powers (Assam and Manipur) Act, 1958
In 1951, the Naga National Council (NNC) reported that it conducted a "free and fair plebiscite" in which about 99 percent of Nagas voted for a ‘Free Sovereign Naga Nation’. There was a boycott of the first general election of 1952 which later extended to a boycott of government schools and officials. 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, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, providing 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 23 March 1956. The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President Dr. Rajendra Prasad on 22 May 1958. It was replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958 on 11 September 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 a power as per "Objects and Reasons'" appended to the Bill was that "Keeping in view the duty of the Union under Article 355 of the Constitution, interalia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as 'disturbed', to enable its armed forces to exercise the special powers". The territorial scope of Act also expanded to the five states of the North-East - Assam, Manipur, Meghalaya, Nagaland, Tripura, 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.
Recently the Tripura state government has decided to withdraw the controversial Act, citing significant reduction in the extent of terrorist activities in the state. In June 2015, after review, the AFSPA in Nagaland state was extended by one more year.
In November 2016, Government of India has extended AFSPA in three districts of Arunachal Pradesh- Tirap, Changlang and Longding. These have been declared as “disturbed area” under Section 3 of the AFSPA. In these districts, Naga underground factions including National Socialist Council of Nagaland (Isak-Muivah) and NSCN (Khaplang) are involved in extortion, recruitment of locals, and rivalry.
The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act on 6 October 1983, repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983, to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh. The Act was enforced in the whole of Punjab and Chandigarh on 15 October 1983. 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 additional powers to the armed forces.
- Sub-section (e) was added to Section 4 stipulating that any vehicle can be stopped, searched and seized forcibly if it is suspected of carrying proclaimed offenders or ammunition.
- Section 5 was added to the Act specifying that a soldier has the power to break open any locks "if the key there of is withheld".
The Act was withdrawn in 1997, roughly 14 years after it came to force.
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
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.
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, the 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.
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 present over to the officer in charge of the nearest police station with 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.
On July 8, 2016, in a landmark ruling, The Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA, saying, in an 85 page judgement, “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.” 
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 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 too 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. Irom Chanu Sharmila also known as the "Iron Lady of Manipur" or "Mengoubi" ("the fair one") is a civil rights activist, political activist, and poet from the Indian state of Manipur. On 2 November 2000, she began a hunger strike which ended on 9 August 2016 after 16 years. On 2 November 2000, in Malom, a town in the Imphal Valley of Manipur, ten civilians were shot and killed while waiting at a bus stop. The incident, known as the "Malom Massacre",was allegedly committed by the Assam Rifles, one of the Indian Paramilitary forces operating in the state.
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."What [the Indian State] has failed to see is that such small, ethnic groups are resisting the Indian state for 55 years" says legal activist and scholar, Babloo Loitongbom
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. However, Indian general election, 2014 recorded nearly 80% voters turnout in Manipur.
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.
Santosh Hegde commission on Manipur encounter deaths
A high-power commission headed by the retired Supreme Court judge, N. Santosh Hegde was constituted in January 2013 to probe six encounter deaths in Manipur. The committee, comprising former Supreme Court judge Santosh Hegde, ex-CEC J M Lyngdoh and a senior police officer, has said in its report that the probe showed that none of the victims had any criminal records. The judicial commission set up by the Supreme Court is trying to make the controversial Armed Forces Special Powers Act (AFSPA) more humane, and the security forces more accountable. The committee has suggested fixing a time frame of three months for the central government to decide whether to prosecute security personnel engaged in extrajudicial killings or unruly behaviour in insurgency-hit regions. The Commission noted that AFSPA was an impediment to achieving peace in regions such as Jammu and Kashmir and the North East.The commission also said the law needs to be reviewed every six months to see whether its implementation is actually necessary in states where it is being enforced. About Section 6 of the Act, which guarantees protection against prosecution to the armed forces, the report said: "It is not that no action can be taken at all. Action can be taken but with prior sanction of the Central Government."
Justice Jeevan Reddy Commission
The commission recommended to repeal AFSPA as “the Act is a symbol of hate, oppression and instrument of high handedness” but Government of India has not taken any decision in this direction.
Second Administrative Reforms Commission
The second Administrative Reforms Commission (ARC) in its fifth report on “Public Order,” recommended to repeal of Armed Forces Special Powers Act, 1958. It commented that its scrapping would remove sentiments of discrimination and alienation among the people of the North East India.The commission recommended to amend the Unlawful Activities (Prevention) Act, 1967 inserting a new chapter to deploy the armed forces of the Union in the North eastern States. It supported a new doctrine of policing and criminal justice inherent in an inclusive approach to governance.
Supreme Court of India
Supreme Court said that any encounter carried out by armed forces in the garb of AFSPA should be subjected to thorough inquiry. In the words of supreme court “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state.The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties."
- Krishna Pokharel for the Wall Street Journal. Jan 7, 2015. Indian Activist Presses 14-Year Hunger Strike to Protest Abuses; Court Postpones Decision Whether Irom Sharmila Chanu Should Be Charged Again
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