Armed Forces (Special Powers) Act (AFSPA)

AFSPA (Armed Forces Special Powers Act) grants extensive powers to security forces in disturbed areas. It is invoked during instances of militancy or insurgency that pose a risk to India’s territorial integrity. While proponents argue for its necessity, critics express concerns about potential human rights violations.

Armed Forces (Special Powers) Act (AFSPA) in Parliament will be helpful for UPSC IAS Exam preparation. GS Paper-2 Indian Polity.

Table of Content

• What is Armed Forces (Special Powers) Act (AFSPA)?
• AFSPA Act: Historical Background
• AFSPA Act: Key Provisions
• AFSPA Act: Powers of Armed Forces Personnel in Disturbed Areas
• Status and Issues of AFSPA and DAA in Different States
• Criticism of AFSPA
• Guidelines and Committees on AFSPA
• Recommendations to improve AFSPA
• Conclusion
• Frequently Asked Questions (FAQs)

What is Armed Forces (Special Powers) Act (AFSPA)?

• The army, state, and central police forces are granted the power to use lethal force, conduct house searches, and destroy property that is likely to be utilized by insurgents in areas declared as disturbed.
• AFSPA is invoked when instances of militancy or insurgency occur, posing a risk to India’s territorial integrity.
• Security forces possess the ability to apprehend individuals without a warrant, including those who have committed or are on the verge of committing a recognizable offense, based on reasonable suspicion.
• Security forces are also provided with legal immunity for their actions within disturbed areas.
• While the armed forces and the government argue for the necessity of AFSPA to combat militancy and insurgency, critics have raised concerns about potential human rights violations associated with the legislation.

Historical Background

Pre-Independence:

• The AFSPA, along with several other contentious laws, traces its roots back to the colonial period.
• 1942: during the Quit India Movement led by Mahatma Gandhi, the AFSPA was initially established as an ordinance.
• Following the movement’s launch on August 8, 1942, it soon became leaderless and witnessed outbreaks of violence in various parts of the country.
• Prominent leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel, and many others were imprisoned.
• In response to the extensive violence across the nation, the Viceroy Linlithgow issued the Armed Forces (Special Powers) Ordinance in 1942.
• This ordinance effectively granted the Armed Forces the authority to use lethal force during internal disturbances.
• Taking inspiration from this ordinance, the Indian government subsequently promulgated four ordinances in 1947 to address internal security challenges and unrest resulting from the partition of four provinces: Bengal, Assam, East Bengal, and the United Provinces.

Post-Independence:

Armed Forces Special Powers (Assam and Manipur) Act, 1958

• 1951: the Naga National Council initiated a boycott of elections and government institutions, leading to the imposition of the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953.
• The Assam Disturbed Areas Act of 1955 allowed for the deployment of the Assam Rifles and armed state police to address the Naga rebellion.
• 1958: The Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated and replaced by the Armed Forces (Assam and Manipur) Special Powers Act later.
• The act empowered the Governors of the states and the Administrators of the Union Territories to declare ‘disturbed’ areas, expanding its territorial scope to include seven Northeastern states.
• Tripura decided to withdraw the act due to reduced terrorist activities in the state.
• In Nagaland, the AFSPA was extended for an additional year in 2015.
• In Arunachal Pradesh, the act was extended to three districts in November 2016, and subsequently extended for another six months in April 2018, to address the involvement of Naga underground factions in activities such as extortion and recruitment.

Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983

• The central government passed the Armed Forces (Punjab and Chandigarh) Special Powers Act on October 6, 1983.
• This act replaced the Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983.
• It authorized the central armed forces to operate in Punjab and the union territory of Chandigarh.
• The act came into effect throughout Punjab and Chandigarh on October 15, 1983.
• Key Amendments:
  • Sub-section (e) was introduced in Section 4, granting authorities the power to forcibly stop, search, and seize any suspected vehicle carrying proclaimed offenders or ammunition.
  • Section 5 was added, providing soldiers with the authority to break open locks if the key is withheld.
• The act was withdrawn in 1997, approximately 14 years after its enforcement.
  • However, the Disturbed Areas Act remained in effect in Chandigarh until 2012, when it was invalidated by the High Court.

Armed Forces (Jammu and Kashmir) Special Powers Act, 1990

• The Armed Forces (Jammu and Kashmir) Special Powers Act was passed in September 1990.
• If either the governor of Jammu and Kashmir or the Central Government believes that the entire union territory or any specific part of it is in a state of disturbance and poses a threat, this act can be enforced.

Key Provisions

• Declaration of Disturbed Areas: The Governor and Central Government can declare any part or full of a state as disturbed if necessary to disrupt terrorist or sovereignty-threatening activities.
• Deployment of Armed Forces: Upon an official notification by the state governor in The Gazette of India, the Central government can deploy armed forces to assist civilian authorities. The disturbed status must be maintained for a minimum of three months.
• Special Powers for Army Officers: In disturbed areas, army officers have the authority to shoot individuals who violate the law, with a warning required before firing. This includes assemblies of five or more people and carrying weapons.
• Arrest and Search Powers: Security forces can arrest individuals without a warrant and conduct searches without consent.
• Custody and Handover: Detained persons must be handed over to the nearest police station promptly.
• Prosecution for Human Rights Violations: Prior permission from the Central Government is required to prosecute officers on duty for alleged human rights violations.

Powers of Armed Forces Personnel in Disturbed Areas

Use of Force for Maintenance of Public Order

• Authorized personnel, including commissioned officers, warrant officers, and non-commissioned officers, can employ force in disturbed areas if necessary to maintain public order.
• They may give due warning and use force, including lethal force, against individuals violating laws or orders prohibiting assembly, carrying weapons, or possessing firearms, ammunition, or explosives.

Destruction of Threatening Elements

• Personnel can take action if they believe it is necessary to destroy arms dumps, fortified positions, or shelters used for armed attacks or likely to be used for such purposes.
• They can also target structures functioning as training camps for armed volunteers or hideouts utilized by armed gangs or wanted criminals.

Warrantless Arrests

• Without a warrant, personnel can apprehend individuals who have committed a cognizable offense or are reasonably suspected of committing one.
• They have the authority to use necessary force to carry out the arrest.

Premises Search and Recovery

• Personnel can enter and search premises without a warrant in order to make arrests or recover wrongfully restrained or confined individuals, stolen property, or unlawfully kept arms, ammunition, or explosives.
• They are permitted to use force as necessary to accomplish these objectives.

Comparison between Assam Disturbed Areas Act (DAA) and AFSPA

Disturbed Areas Act (DAA)

• The Assam Disturbed Areas Act (DAA) was initially enacted in 1955 to suppress the Naga uprising.
• DAA is often referred to as the “mini AFSPA” due to its similar powers granted to the armed forces.
• The state government has the authority to declare a district or its parts as a disturbed area through official notification in the Gazette.
• Several states, including Jammu and Kashmir, have repealed the Disturbed Areas Act and implemented AFSPA instead.

Difference between DAA and AFSPA

• The DAA and AFSPA share similarities in conferring powers to the armed forces for controlling violence.
• The key difference lies in the authority invoking the acts: DAA is invoked by the state government, while AFSPA can be invoked by either the Governor or the Central Government.

Status and Issues of AFSPA and DAA in Different States

Assam

• Assam came under AFSPA in 1958 due to the rise of ULFA’s activities.
• Recent readiness expressed by the Ministry of Home Affairs for partial withdrawal of AFSPA from Assam and Arunachal Pradesh.
• Assam accounted for 31% of human rights violation complaints, as per RTI data.

Tripura

• AFSPA enforced in Tripura in 1997 during the peak of terrorism.
• Two separatist groups, NLFT and ATTF, demanded Tripura’s secession.
• AFSPA withdrawn in May 2015 after 18 years due to reduced insurgent activities.

Manipur

• Manipur given “disturbed area” status in 1980 to combat insurgent groups.
• Supreme Court questioned AFSPA’s validity in Manipur in July 2016.
• Allegations of fake encounters and human rights violations led to a Supreme Court directive for a Special Investigative Team (SIT) in July 2017.

Arunachal Pradesh

• Three districts and 16 police station limits in Arunachal Pradesh designated as “disturbed areas” under AFSPA.
• Imposition of AFSPA justified due to increased kidnapping, extortion, and attacks on security forces.
• Recent readiness expressed by the Ministry of Home Affairs for partial withdrawal of AFSPA.

Meghalaya

• Meghalaya’s region along the 20km belt with Assam falls under AFSPA.
• High Court suggested imposing AFSPA in the Garo hill region.

Mizoram

• Mizoram became a peaceful state after the Mizoram Peace Accord in 1986.
• AFSPA has not been lifted despite the state’s peaceful status.

Nagaland

• AFSPA has been in force in Nagaland for several decades.
• Despite the framework agreement signed in 2015, AFSPA has not been withdrawn.
• AFSPA was extended in June 2017 due to increased insurgency and unrest in Nagaland.

Criticism of AFSPA

Human Rights Concerns:

• The act fails to protect human rights, as seen in cases like the alleged custodial rape and killings of Thangjam Manorama in 2004.
• The militarized approach to security has proven ineffective and counterproductive.

Violation of Right to Life:

• The absolute authority given to armed forces to shoot based on suspicion infringes on the fundamental right to life.
• It allows soldiers to judge the value of lives and leaves people subject to arbitrary decisions.

Arbitrary Arrest and Detention:

• The power of arbitrary arrest and detention by armed forces contradicts the safeguards provided in Article 22, which guarantees preventive and punitive detention.
• The requirement of submitting the arrested person to court within 24 hours is often ignored.

Questionable Immunity:

• The immunity granted to armed forces raises concerns.
• No prosecution can be initiated without prior sanction from the central government, allowing for unwarranted decisions and questioning accountability.

Suspension of Fundamental Rights:

• The absolute power given to armed forces undermines inherent rights granted under fundamental rights.
• Even during a state of emergency Article 21 (right to life and liberty) and certain rights under Article 20 cannot be suspended.

Guidelines and Committees on AFSPA

Supreme Court Judgement (1998)

• In 1998, the Supreme Court addressed the validity of AFSPA in the case of Naga People’s Movement of Human Rights vs. Union of India.
• The five-judge bench concluded that the act does not violate the Constitution.
• The powers conferred under Sections 4 and 5 of the Act are not arbitrary or unreasonable. Consequently, the guidelines established were as follows:
  • Strict adherence to minimum force under Section 4 when dealing with individuals suspected of violating prohibitive orders.
  • Any person arrested under Section 4 must be handed over to the nearest police station within 24 hours of arrest.
  • Mandatory review of the act every six months by the respective state.

Jeevan Reddy Commission (2005)

• In 2005, the Jeevan Reddy Commission was formed to review AFSPA after public outcry over the killing of Thangjam Manorama by the Assam Rifles in Manipur.
• The commission, after extensive research and hearings, recommended the repeal of AFSPA, emphasizing its inadequacies and the need to bring security forces under ordinary criminal law to address concerns about human rights violations.

Santosh Hegde Committee

• In 2013, the Santosh Hegde Committee, headed by a Supreme Court Judge, was appointed to investigate encounter killings in Manipur.
• The committee’s findings revealed that many encounters were not genuine, the disproportionate force was used against innocent individuals, and AFSPA provided sweeping powers to security personnel without adequate safeguards against misuse.

Supreme Court Judgements (2016-2017)

The Supreme Court delivered significant judgments in 2016 and 2017 regarding alleged unlawful encounter killings in Manipur. These judgments highlighted the following key points:

• All deaths in disturbed areas, regardless of the individual’s affiliation, should be thoroughly investigated by the Criminal Investigation Department (CID) at the instance of the National Human Rights Commission (NHRC).
• Violators of prohibitory orders in disturbed areas should not be automatically considered enemies. Even if they are deemed enemies, a comprehensive investigation must determine whether excessive or retaliatory force was employed.
• Army personnel cannot claim absolute immunity when involved in criminal activities.
• The Supreme Court overruled objections from the Centre and the Army, ordering the Central Bureau of Investigation (CBI) to establish a special investigation team to probe encounter deaths.
• The court emphasized the need for filing FIRs, independent investigations, and magisterial enquiries in cases of encounter deaths.

Recommendations to improve AFSPA

Addressing Grievances and Avoiding Oppression

• To prevent AFSPA from becoming a symbol of oppression, it is crucial to promptly address the grievances of regions affected by terrorism and insurgency.
• The government should show its willingness to tackle injustices by making necessary amendments to the existing law.
• This approach assures the people of disturbed states like Manipur and J&K that their concerns are being taken seriously.

Building Trust and Proactive Measures

• In countering insurgency, establishing trust between the armed forces and the local population is paramount.
• Recognizing the significant role played by the people in high-intensity conflicts, efforts should be made to build a relationship of trust.
• Involving state bureaucracy, army personnel, and grassroots civil society organizations in developmental activities fosters a proactive approach, shifting the focus from solely maintaining law and order to promoting development.

Ensuring Justice and Adherence to Guidelines

• To regain trust and address allegations of human rights violations, it is crucial to fast-track cases and ensure speedy justice for the victims.
• Adopting a transparent process for dealing with such allegations is necessary.
• Additionally, strict adherence to the guidelines set by the Supreme Court, Jeevan Reddy Commission, Santosh Hegde Committee, and the NHRC is vital for the government and security forces in their operations under AFSPA.

Conclusion

It is vital for the Supreme Court to ensure an unbiased probe, promoting accountability and democratic rights. However, progressive judicial rulings face challenges from prevailing government and Army attitudes that uphold the status quo. To achieve a lasting solution, concerted efforts are needed from civil society, Armed Forces, States, and the Government of India. Prioritizing peace and harmony are never too late. The recent Supreme Court verdict will have significant implications in areas where security forces have enjoyed immunity under AFSPA during counter-insurgency operations.

Ref: Source-1

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