AFSPA – A Short Review

Armed Forces Special Powers Act was enacted in the year 1958 to contain the tribal and ethnic violence in the Northeast region (Assam and Manipur) of the country. The Act toes the line of the 1942 ordinance passed during the colonial times to contain the violence emanating out of the Indian independence movement. In 1972, the Act was amended to be applicable to all the newly created north-eastern states. Punjab came under the purview of the Act in 1983 during the secessionist movements for sovereignty.  In Jammu and Kashmir, AFSPA is in existence since 1990.

According to widespread claims, the AFSPA has led to enormous human rights violations and demands revisit of its debatable sections to avoid abuse of the powers at the hands of armed forces. In this note, a short analysis has been presented of the various sections of the AFSPA which are contentious and need a revisit by the concerned authorities.

The Section 3 of the Act empowers the government (state and central) to declare the state or a part of it ‘disturbed’ and thus to the use of AFSPA in addition to the civil security to maintain law and order. Prior to 1972, the state government only was empowered to declare a region as disturbed as law and order is a state subject. However, after amendments in 1972, the central and state governments can concurrently exercise the powers to authorize the employment of AFSPA. The criteria for calling out an area as ‘disturbed’ are also not well laid out. Also the state government is not empowered to prosecute any member of the armed forces, accused of human rights violations against citizens as this power is reserved for the central government.

The Section 4(a) empowers any commissioned and non commissioned officer in the armed forces to: “If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.” This according to human rights activists gives the armed forces a ‘license to kill’ under the garb of AFSPA. While the law demands that the case of arrest or encounter be reported to the nearest police station at the earliest, there are allegations that extrajudicial killings happen and innocent civilians are also at sometimes labeled as armed militants after the encounter. According to a Human Rights Watch report in 2006, the military sometimes extrajudicially executes the militants to avoid hijacks and abductions to secure their release.

The section 4(c) and 4(d) of the AFSPA empowers members of the armed forces to arrest, without warrant, any person even on grounds of suspicion, to enter and search  without warrant any premises and to detain a person for unspecified amount of time without any review by the magistrate (this is in clear contention with the Indian Constitution and provisions of ICCPR).

The section 6 of the AFSPA provides government security forces with immunity from prosecution without orders from the central government. This provision undermines the faith in the judiciary by provisioning special treatment to the armed forces under AFSPA.

If we look at the provisions of the Act, it gives unaccountable power to the armed forces which run a high risk of misuse and distress for the common citizens struck in the troubled zones. The Act also violates the provisions of the International Covenant on Civil and Political Rights (ICCPR), a UN-mandated multilateral treaty to secure the civil rights to which India is a signatory. A number of repeal campaigns have been undertaken in the past against the AFSPA without concrete results. The Dr. Manmohan Singh led government had established J. Reddy Commission to submit a comprehensive report on the Act with suggestions. The Commission suggested for the replacement of the Act with a more humane Act and also recommended for incorporating certain provisions in the already existing Unlawful Activities (Prevention) Act, 1967. It also calls for an independent ‘Grievance Cell’ to look into the cases of human rights violations under AFSPA. The government is yet to implement the recommendations. In June 2007, the Second Administrative Reforms Commission appointed by the president of India and headed by Veerappa Moily also recommended for a repeal of AFSPA.

The Supreme Court in the case of Naga People’s Movement of Human Rights, etc. vs. Union of India upheld the AFSPA but called for protection of human rights and ruled that the armed forces should “use minimal force required for effective action” and “strictly follow the instructions contained in the list of “Do’s and Don’ts” issued by the army authorities which are binding.” It also called for a thorough inquiry of all the cases of human rights violations. The Hamid Ansari led Working Group on Confidence-Building Measures in Jammu and Kashmir had also furnished its recommendations to the government to safeguard the human rights of the citizens. There is still enough scope towards concerted efforts to mitigate the ills of the AFSPA and ensure the fundamental human rights of all.

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Ms. Priyadarshi Pal, Research Consultant:

Priyadarshi is an alumnus of National Institute of Technology Durgapur and Teach for India. She also holds post-graduate diplomas in Sustainable Rural Development from NIRD, Hyderabad and Business Management from University of Hyderabad. She is also certified in Social Entrepreneurship and NGO management. She nurtures a deep commitment towards the society and environment. Her interest areas are Education, Child Rights and Women Economic and Social Empowerment. Besides she is also an Yoga facilitator at the Art of Living Foundation.

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