Armed Forces Special Powers Act (AFSPA) : A Comprehensive

The Armed Forces Special Powers Act (AFSPA) is imposed in areas affected by internal rebellion, insurgency or militancy. Since it is a common practice in the country to deploy the armed forces to quell such unrest, this Act provides the armed forces with an enabling environment to carry out their duties without fear of being prosecuted for their actions.

Background

The origins of the Armed Forces (Special Powers) Act, 1958 can be traced to the Armed Forces (Special Powers) Act of 1948. The latter in turn was enacted to replace 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—invoked by the central government to deal with the internal security situation in the country in 1947.

Incidentally, the Armed Forces (Special Powers) Act of 1948 was repealed in 1957, only to be resurrected a year later in 1958. The context was the fast deteriorating internal security situation in the ‘unified Assam’. The Nagas, who inhabited the Naga Hills of Assam and Manipur, had opposed the merger of their area with that of India on the grounds that they were racially and socio-politically different from the Indians. They had even voted in favour of a referendum declaring independence in 1951 and raised the banner of revolt. They boycotted the first general election of 1952, thereby demonstrating their non-acceptance of the Indian Constitution and started committing violent acts against the Indian state.

Basic Facts

• Armed Forces Special Powers Act (AFSPA) was promulgated in September 1958 to control Naga insurgency that had broken out in the mid fifties.
• It has since been enacted for Tripura in 1970, Manipur in 1980, Punjab in 1983 and J&K and Assam 1990. Earlier, Punjab was also brought under the Act through the Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983.
• It came into the limelight in 2004 with the custodial death of a Manipuri woman, Thangjam Manorama Devi, accused of being an underground operative.
• In November 2011, the central government extended the Armed Forces Special Powers Act in J&K for another year. The Act was first imposed in the state in 1990 and since then its term has been extended every year by the unanimous agreement of all concerned agencies. This time around, however, the decision to extend the Act met with some opposition.
•  In November 2010 Irom Sharmilla has completed ten years of her fast for revoking of the Act.
• Manipur, however, withdrew the Act from some places against the wishes of the Central government in August 2004.

Present Status

Presently, the Act is in force in Assam, Nagaland, Manipur (except the Imphal municipal area); Tripura (40 police stations); the Tirap and Changlang districts of Arunachal Pradesh and a 20 km belt in the states with a common border with Assam. Apart from the Northeast, the AFSPA is also in force in Jammu and Kashmir, which came under its purview on July 6, 1990 as per the Armed Forces (Jammu and Kashmir) Special Powers Act of 1990.

Various Views

• The military has tendered its position to the government against any dilution of the Act.
• The cabinet committee on security has taken the army’s reservations on board.
• The Central government appointed a five-member committee under former Supreme Court judge Justice B P Jeevan Reddy to review if the Act needs to be tonned down or repealed completely and replace it by a humane one. In its 147-report, the committee on 6 June 2005 recommended the repealing of the Act. However, the government did not agree with the recommendation.
• The Second Administrative Reforms Commission’s (Veerappa Moily Commission) Fifth Report on Public Order seconded the BP Jeevan Reddy committee report that the AFSPA should be repealed and, as recommended by the Jeevan Reddy Committee, a new chapter be inserted in the UAPA. However, it held that ‘the proposed insertion of Chapter VI A should apply only to the Northeast.’ The reason for this has not been explained, even though it defeats the whole purpose of the BP Jeevan Reddy Committee. The purpose of the latter was to dispel alienation in the NortheEast by enabling military deployment under a general, as against a special law.
• The Moily Commission’s recommendation that the inserted chapter be only applicable to the Northeast has been criticised as counter-productive. It also ignores the fact that the Act is operative in J&K too.
• There is no clarity over its current status

Implications

• The Act has acquired centrality in any discussion on India’s counter insurgency and anti-terrorism strategy
• its implications for centre-state relations, its impact on the fundamental rights of citizens, the tacit political message sent to areas singled out for such laws, such as the Northeast and J&K, as being ‘different’ from the rest of India, the possible empowering of the military to an extent of skewing the ‘civil-military’ balance, the strategic costs of the Act in terms of losing ‘hearts and minds’ etc.

Controversial Provisions & Criticism

• Under AFSPA, Central forces can tackle local issues, fight social unrest and can be redeployed if necessary to restore peace as per the request of the state administration  i.e., For declaring an area as a ‘disturbed area’ there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary
• By Act 7 of 1972, this power to declare areas as being disturbed was extended to the central government
• Under section 4 (d), the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search.
• This law also overrides the CrPC. The CrPC establishes the procedure for police officers to follow for arrest, searches and seizures, a procedure that the army and other paramilitary are not trained to follow.
• use force or fire upon, after giving due warning, an individual or a group of individuals unlawfully carrying or in possession of or is reasonably suspected of being in unlawful possession of any of the articles mentioned in Section 15 of this Act.
• Powers under the AFSPA, under Section 4 (a), have a bearing on ‘hard core’ rights, such as right to life. This is why the AFSPA has come under criticism on two counts. One is that the Act is a ‘colourable’ legislation, giving emergency powers without proclaiming emergency. Second is that the extensive power to take life violates international obligations and Article 14.

Supreme Court Guidelines

The Supreme Court’s verdict in 1988 in the matter of Naga Peoples’ Movement of Human Rights vs. Union of India was essentially that ‘Parliament was competent to enact the central Act’. The Court stated that in the event of deployment of the armed forces in aid of the civil power in a state, the forces shall operate in cooperation with the civil administration

However, the stipulations made by the Supreme Court place an extraordinary onus on the military for self-regulation. These include

• the officer (including an NCO) taking decisions needs to ensure that the action is ‘necessary’ and that the ‘due warning’ has been issued and in any case ‘the officer shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.’
• It held that ‘conferment of the power… to destroy the structure utilised as a hide-out by absconders in order to control such activities could not be held to be arbitrary or unreasonable’ since the propensity of offenders of repeating their past activities could not be precluded.
•  It required the handing over of arrested persons to be done in 24 hours (excluding journey) so as to be in compliance with Article 22 of the constitution in which this time limit is stipulated.
• Section 6, it opined, ‘does not suffer from the vice of arbitrariness.’ Its view was that: ‘The protection given under Section 6 was not a conferment of an immunity on the persons exercising the powers under the Central Act. It only gave protection in the form of previous sanction of the Central Government before a criminal prosecution of a suit or other civil proceeding was instituted against such person.’ In case the government was to decline permission, then it had to state its reasons as its decision was subject to judicial review.

The seriousness with which the Court viewed the ‘Do’s and Don’ts’ is obvious in the following:

• The instructions in the form of “Do’s and Don’ts” had to be treated as binding instructions which were required to be followed by the members of the armed forces exercising powers under the Central Act and a serious note had to be taken of violation of the instructions and the persons found responsible for such violation had to be suitably punished under the Army Act, 1950.

Human Rights Commission Role

The National Human Rights (Protection) Act of 1993 leaves the armed forces out of its intimate purview. Its oversight role over the armed forces is considerably restricted. The commission can at best seek a report from the central government. After the receipt of the report, it may make its recommendations to it. The central government is to inform the commission of the action taken within three months. This is to be published and a copy is to be given to the petitioner or his representative. That the NHRC’s however is highly restricted which puts the onus of supervision on those at the ministerial level, in terms of political supervision of the military, and on internal self-regulation by the military and its leadership

Indian Army’s Doctrine for Sub Conventional Operations

The doctrinal understanding is that, within the ambit of these rights, the endeavour must be to have as light a footprint as possible. Alongside, a strict human rights protection regime must be in place, termed ‘zero tolerance’. The strategic fallout is in gaining support of the people, deemed the ‘center of gravity’. Valuing the human rights of citizens is thus consequential, though it is a means to an end.

This perspective, reflected in the Indian Army’s doctrine, is that respecting the human rights factor is a strategic necessity. The problem with such a perspective is that the converse is equally implicit, that is, if required by strategy, human rights can be neglected.

The Joint Doctrine for Sub-Conventional Operations (JDSCO) says that, ‘It is our constitutional obligation to honour the HR of our people and any disregard to this obligation will only enable the terrorist/insurgents to discredit the state’s legitimacy and influence. (emphasis added). Further, it states, ‘Upholding of HR is a constitutional obligation and is also necessary to establish the credibility of the government in the eyes of the people’ (emphasis added). The qualifications, emphasised here, make it apparent that the constitutional obligation is not enough on its own merits.

Instead, the strategic fallout makes it necessary to honour human rights. This understanding is compounded by a perspective that takes human rights protection as a ‘force multiplier’. A force multiplier is defined as, ‘a capability that, when added to and employed by a combat force, significantly increases the combat potential of that force and thus enhances the probability of successful mission accomplishment.’

Recommendations & Conclusion

• Any force that operates in a counter terrorism environment, and in the case of J&K, superimposed by a proxy war, needs protection. The Criminal Procedure Code (CrPC) provides protection under Sec 45 and 197 as does the Unlawful Activities (Prevention) Act 1967, amended in 2008 under Section 49. Therefore, any future amendment, needs to cater for the protection of the armed forces operating in a disturbed area
• Incorporation of existing Supreme Court guidelines on Dos and Don’ts in AFSPA/UAPA.
• Create committees at the district level with representatives of army, police, civil administration and the public to report, assess and track complaints in the area.
• All investigations should be time bound. Reasons for delay, should be communicated to the aggrieved.
• Implementation of Jeevan Reddy Commission recommendations
• AFSPA should be made compliant with international and national norms of human rights and humanitarian law .
• Elevate human rights as the core organising principle in counter insurgency

P.S. this post is intended to be exhaustive (with background) so plz dont mind the length of the post

Sources & Further Reading : Idsa 1 , Indian Army Doctrine, Idsa Analyses, ToI