Armed Forces (Special Powers) Acts- Necessity or a Misused Power?
By Tanisha Poddar
Armed Forces (Special Powers) Acts (AFSPA), are Acts of the Indian Parliament that grant special powers to the Indian Armed Forces in which 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 11 September 1958 was applicable to the Naga Hills, then part of Assam, which was eventually implemented throughout the other Seven Sister States of India (at present it is in force in Assam, Nagaland, Manipur excluding Imphal municipal council area, Changlang, Longding and Tirap districts of Arunachal Pradesh).
One approved in 1983, solely restricted to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force.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 is in force till date.
In simple words, AFSPA empowers the armed forces to maintain public order in “disturbed areas”. They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law. If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search of their premises without a warrant; and ban the possession of firearms.
Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.
A disturbed area is one which is declared by notification under Section 3 of the AFSPA. An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities. The Central Government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area. A suitable notification would have to be made in the Official Gazette. As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments.
The Act came into force in the context of curbing the increasing violence in the Northeastern States decades ago, after realizing the failure of the State Government to ensure its security. Subsequently, 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 came to be known as the Armed Forces Special Powers Act, 1958.
It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh. The Centre revoked it in Meghalaya on April 1, 2018. Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border. In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations and in Tirap, Longding and Changlang districts bordering Assam. Tripura withdrew the AFSPA in 2015. Jammu and Kashmir too has a similar Act.
It has been a controversial one, with human rights groups opposing it as being aggressive. Manipur’s Irom Sharmila has been one if its staunchest opponents, going on a hunger strike in November 2000 and continuing her vigil till August 2016. Her trigger was an incident in the town of Malom in Manipur, where ten people were killed waiting at a bus stop.
AFSPA as an advantage
1. On the basis of the power given to the armed forces, they are able to protect the boundaries of the country.
2. In the absence of strict law, the armed forces will not be able to tackle the insurgent inside the country especially in the Kashmir and North eastern region of the country.
3. The powers given in the AFSPA boost the morale of the armed forces to ensure the rule of law in the disturbed areas of the country.
Arguments against the AFSPA
1. There are so many examples when the oppressive powers given to the armed forces have been misused.
2. The armed forces are conducting fake encounters and sexually exploiting the women in the disturbed areas.
3. AFSPA, violates human rights.
4. Some critics compared ASFPA with the Rowlett act of the British time because like the Rowlatt Act, any suspicious person can be arrested on the basis of doubt in the ASFPA also.
Critics of the AFSPA law argue that 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.
ASFPA could not achieve its desired goals even after 60 years of its implementation.So the state government of the disturbed area along with the central government should find out an alternative to of this law and come out with flying colours.
By legitimizing the use of military force in the internal affairs of the state beyond what is already provided in the Criminal Procedure Code and the provisions of emergency in the constitution, AFSPA seeks to supplant rather than supplement civil authority with military authority in the administration of everyday life.
To convert such an ordinance into a regular law that stays in place for almost half a century is to entrench a military structure and ethos in the polity and structure of the state.
It sets into motion the process of reproduction and appropriation of the military structure and ethos by other instruments of the State (the paramilitary and police) as well as civil society itself. Ultimately, it leads to a complete subversion of the basic foundation of society and polity.
It blurs the necessary distinctions between the police and the military, between the civilian and the combatant, and between ‘domestic’ and ‘alien’ space. This is what has happened in Manipur.
As Bimol Akoijam says:
“the single Act AFSPA has given rise to a plethora of Acts of horrors, like the thousands of murders, rapes, custodial deaths, disappearances, tortures, combing operations and genocide.” Recently discovered unmarked graves in Kashmir are a chilling testimony to these hard realities of everyday life in Kashmir and the Northeast.
The lists of such acts of horror in the Northeast is long, but to name a few well known cases, from 1980, onwards they include: the massacres of civilians at Heirangoi thong (Manipur) in 1984, at RIMS Manipur in 1995, at Malom (Manipur) in 2000; the horror of army torture and violence on civilians during operation Blue bird (Manipur) in 1987 and operation Rhino (Assam) in 1991. Indiscriminate firing on civilians by armed forces personnel when their own vehicle burst in the town of Kohina (Nagaland) in March 1995, the shelling and destruction of the town of Makokchung (Nagaland) in 1994, the enforced disappearances of Loken and Lokendro (Manipur) in 1996, and the rape of Miss N Sanjita (who subsequently committed suicide) (Manipur) in 2003.
Accordingly, AFSPA should be maintained as the greater intensity of war or conflict can be controlled by such acts only but reasonable restrictions should be followed. People often criticize the act as it harms the rights of humans but somewhere saving the Nation from deterioration and huge losses of its precious resources.
Recently, Pulwama Attack took place where Indian Army suffered huge losses. So in countries like Pakistan or any other such state, country, or Union Territory this act should not be implemented where people believe in taking revenge in spite of developing healthy relations.
To make AFSPA more effective other instruments should also be developed to avoid it as a critic on government.