The Armed Forces (Special Powers) Act (AFSPA) 1958: Origin, Current Status

To prepare for INTERNAL SECURITY for any competitive exam, aspirants have to know about The Armed Forces (Special Powers) Act (AFSPA) 1958. It gives an idea of all the important topics for the IAS Exam and the Economy syllabus (GS-III.). The Armed Forces (Special Powers) Act (AFSPA) 1958 terms are important from Economy perspectives in the UPSC exam. IAS aspirants should thoroughly understand their meaning and application, as questions can be asked from this static portion of the IAS Syllabus in both the UPSC Prelims and the UPSC Mains exams. Even these topics are also highly linked with current affairs. Almost every question asked from them is related to current events. So, apart from standard textbooks, you should rely on newspapers and news analyses as well for these sections.

AFSPA (1958) act enables certain special powers to be conferred upon members of the Armed forces in disturbed areas in the states.

AFSPA: ORIGIN

• The Act came into force in the context of increasing violence in the North-eastern States decades ago, which the State governments found difficult to control.
• The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958.
• AFSPA is a combination of two legislation – first is for handling the insurgency in the North-east passed in 1958 and second is for handling the situation of insurgency and terrorism in Jammu and Kashmir passed in the year 1990. Since inception these laws have been controversial in nature. As both laws are more or less same, they are collectively called as AFSPA.

WHY WE NEED AFSPA?

• Normal CrPc and IPC provisions are not able to address these violent situations like insurgency and terrorist activity.

AFSPA: DEFINITION

Power to declare Areas to be disturbed Areas

The GOVERNOR of the state or the Administrator in the case of union territory or by the central government can declare areas as disturbed areas. It may be a particular region or whole state after which the armed forces are used to aid the civil power.

Special powers of the Armed Forces

Any commissioned officer, Warrant officer, Non-commissioned officer or any other person of Armed forces equivalent rank.

• After giving such due warning as he considered 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 areas prohibiting the assembly of five or more persons or carrying of weapons.
• Arrest without warrant and use of force for that purpose.
• Destroy any arms dump or destroy the fortified position and shelter.
• Enter and search the premises over the suspicion without warrant.

Presently AFSPA is enforced in the 5 states of North East (parts of Arunachal, Assam, Manipur, Mizoram & Nagaland) and J&K. 

Power to declare Areas to be disturbed Areas

• Provide more power to the armed forces to perform their activities to restore the normal situation.
• If AFSPA prematurely withdrew the security situation deteriorated and it took more time to store peace there.
• Normal CrPC provides limited power to deal with violent situations.
• In disturbed areas the involvement of proxy groups are also there, in order to break that nexus extraordinary powers are required. Extra-ordinary powers are also necessary as the armed forces face asymmetric warfare involving raids, ambushes, mines and explosive devices, sabotage etc
• Effective functioning – A sense of security in the members of Armed forces is essential to function effectively in insurgency and militancy affected areas.
• Security of the nation – Provisions of this act have played a crucial role in maintaining law and order in disturbed areas. Thus, protecting sovereignty and security of the nation.
• Protection of members of armed forces – It is crucial to empower members of armed forces who constantly face threats to their lives at the hands of insurgents and militants. Its withdrawal would result in poor morale.

Arguments against the AFSPA

• Misuse of the provisions of Acts like fake encounters, extra-judicial killings, etc.
• AFSPA is described as draconian, repressive, colonial and archaic law in Indian democracy.
• AFSPA is a license to kill given to the Armed forces.
• AFSPA can be seen as a violation of all other constitutional rights like prevention against arrest and detention, privacy etc.
• Abolition will bring down the feeling of alienation in people of particular states and especially north-east.
• Gross violation of constitutional values, Human rights and natural justice in the country.
• Abuse of power – It has been alleged that immunity granted by the act has led the armed forces to misuse the powers and commit offences like enforced disappearances, fake encounters and sexual assault.
• Threat to justiciable fundamental rights – It leads to suspension of fundamental rights and liberties guaranteed to the citizens by the constitution. Thus, it weakens democracy.
• Human rights violations in AFSPA areas are not inquired into and followed by adequate action. Thus, it is against the principle of natural justice.
• Diminishing credibility of democracy – People’s disillusionment with democratic setup is exploited by secessionists and terror sympathizers, which leads to more violence & more counter violence creating a vicious cycle.
• Ineffective – Critics argue that this act has failed in its objective of restoring normalcy in disturbed areas despite being in existence for about 50 years.

OBSERVATION OF GOVERNMENT COMMITTEES OVER THE AFSPA 

Role of the judiciary

• There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement (Naga People’s Movement of Human Rights v. Union of India).
• In this judgement, the Supreme Court arrived at certain conclusions including:
• a suo-motto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration;
• AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’;
• The declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired;
• While exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action;
• The authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.
• Recently SC ruled that every death caused by armed forces in a disturbed area involving either a common person or an insurgent must be thoroughly enquired into so as to find out whether the killing was extra-judicial or not.
• Thus there is no absolute immunity for armed forces personnel who commit a crime even in a disturbed area.
• Supreme Court was hearing the plea demanding probe into 1528 deaths alleged to be fake or extra-judicial encounters by the armed forces in the state of Manipur

AFSPA: CURRENT STATUS

• AFSPA is in force to the North-Eastern States of the country fully or partially except the Sikkim, Meghalaya and Tripura (recently in 2018) along with the UT of Jammu and Kashmir.
• The Supreme Court had removed the blanket immunity to the members of armed forces.

AFSPA: Conclusion 

We cannot run our country on the basis that we need to develop alternatives.

• Peace can be established by only synchronized efforts of central and state governments along with security forces.
• Final solution is a political one as demonstrated in the case of Tripura and Mizoram.
• There needs to be a mechanism which can lead to building trust among armed forces and the public in general.
• There is no need to run the country on the basis of bullet while the matter should be resolved on the basis of the ballet

AFSPA: Way Forward

• Adherence to Human rights – It needs to be emphasized that human rights compliance and operational effectiveness are not contrarian requirements. In fact, adherence to human rights norms and principles strengthens the counter insurgency capability of a force.
• Robust safeguards – Protection for the armed forces must be accompanied by provisions that ensure responsibility and accountability, within the parameters of law. It is for this reason that robust safeguards need to be incorporated in the existing or any new law. Supreme Court’s judgment should be followed in letter and spirit –
• Removing ambiguity in law – The terms like “disturbed”, “dangerous” and “land forces” need to be clearly defined to ensure greater clarity.
• Ensuring transparency – Greater transparency in communicating the status of existing cases to include its display on the army and government’s websites.
• Independent inquiry – Every death caused by the armed forces in a disturbed area, be it of a common person or a criminal, should be thoroughly enquired into.

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