The Armed Forces (Special Powers) Act, 1958 AFSPA

The Author is Dipali Singh, a third year law student pursuing law from School of Law, FIMT Affiliated to Guru Gobind Singh Indraprastha University, New Delhi.

The act came into force decades ago in context of increasing violence in the North eastern States which the State found difficult to control. Nearly 60 years after it was passed this piece of legislation evokes sharp responses and has been a reason of wide protests. Presently, AFSPA, 1958, is operational in the entire States of Assam, Nagaland, Manipur (except Imphal Municipal area), three districts namely Tirap, Changlang and Longding of Arunachal Pradesh and the areas falling within the jurisdiction of the eight police stations in the districts of Arunachal Pradesh, bordering the State of Assam. In the backdrop of the growing insurgency in Jammu and Kashmir, the Central government issued a similar enactment known as the The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.

What does AFSPA means?
The AFSPA is imposed in areas where armed forces are required to operate in aid to civil authorities. It gives them the power to maintain public order in such ‘disturbed areas.’ An area can be disturbed due to differences or disputes between members of different religions, racial, language or regional groups or castes or communities. For the AFSPA to become valid, an area, however, needs to be declared disturbed either by the Central or the state government under the section 3 of the Act.
Under Section 4 of the AFSPA, an authorised officer in a disturbed area enjoys certain powers-The authorised officer has the power to prohibit a gathering of five or more persons in an area; power to use force and open fire at any individual after giving due warning if the individual violates law; power to stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons; power to arrest without a warrant; power to seize and search a premises without any warrant in order to recover hostages, arms and ammunitions; Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made or can be made by by the armed volunteers. Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under AFSPA. 
Individuals who have been taken into custody have to be handed over to the nearest police station as soon as possible.

 Review of the act-
The Justice Verma Committee
The committee’s 657-page report included a section on sexual violence in conflict zones, in which the committee said that the AFSPA legitimized impunity for sexual violence, and recommended immediate review of the continuance of the AFSPA in internal areas of conflict.  In its recommendations, the committee said that sexual violence against women by members of the armed forces or uniformed personnel should be brought under the purview of ordinary criminal law, and urged an immediate review of the continuance of the AFSPA. 
 The committee also recommended an amendment to the AFSPA to remove the requirement of prior sanction from the central government for prosecuting security personnel for certain crimes involving violence against women.[1]

The Justice Hegde Commission
 In January 2013, the Supreme Court appointed a three-member commission headed by Santosh Hegde, in response to a public interest litigation seeking investigation into 1,528 cases of alleged extrajudicial executions committed in the state of Manipur in northeast India between 1978 and 2010.  The commission was established to determine whether six cases identified by the court were ‘encounter’ deaths – where security forces had fired in self-defence against members of armed groups – or extrajudicial executions. It was also mandated to evaluate the role of the security forces in Manipur. 
 In its report submitted to the court in April 2013, 6 the commission found that all seven deaths in the six cases it investigated were extrajudicial executions, and also said that the AFSPA was widely abused by security forces in Manipur. The commission said that the continued operation of the AFSPA in Manipur has made “a mockery of the law,” and that security forces have been “transgressing the legal bounds for their counter-insurgency operations in the state of Manipur.”  [2]
The Santosh Hedge Commission primarily criticizes the lack of enforceable safeguards against abuse of the AFSPA’s provisions. For example, “though the Act gives sweeping powers to the security forces even to the extent of killing a suspect with protection against prosecution, etc., the Act does not provide any protection to the citizens against possible misuse of these extraordinary powers…normally, the greater the power, the greater the restraint and stricter the mechanism to prevent is misuse or abuse. But here in the case of the AFSPA in Manipur, this principle appears to have been reversed.”[3]
Both the Committee pointed to the AFSPA as being a key cause of past and ongoing human rights violations.

Arguments against AFSPA-
AFSPA has been under severe criticism from all quarters of the society for being a draconian law widely misused by the armed forces.
Violation of human rights-
The Armed Forces (Special Powers) Act has enabled serious human rights violations committed by soldiers in Jammu & Kashmir (J&K) and parts of northeast India, and it has shielded those responsible. The law has facilitated grave violations, including extrajudicial executions, enforced disappearances, rape and torture and other ill treatment.
Violation of fundamental rights-
Article 21- right to life- the power conferred on the army to kill, arrest by force.
Article 22- protection against arrest and detention- the act has given complete authority to the officers to arrest any person on the said grounds and there is no stipulated time within which the army has to produce the person before the court.

Is AFSPA a necessary evil?
Extraordinary situations demand extraordinary measures, and AFSPA is what is required to deal with anti-Indian terrorists whose stated objective is breaking up the country.The AFSPA is applied only when the ordinary laws of the land are found to be inadequate to deal with the extraordinary situation perpetrated by insurgents spreading terror. It has enhanced legal protection. The Army clearly sees AFSPA as a capstone enabling Act that gives it the powers necessary to conduct counter-insurgency operations efficiently. If AFSPA is repealed or diluted, the performance of battalions in counter-insurgency operations will be adversely affected and the terrorists or insurgents will seize the initiative.

Supreme Court’s verdict on AFSPA-
Certain guidelines were framed by the Supreme Court of India in order to end the absolute immunity of the armed forces from prosecution under AFSPA.
The guidelines include-
·         No use of excessive retaliatory force by the army and paramilitary forces during counter insurgency operations in areas declared as disturbed under the AFSPA.
·         Criminal courts will now have the jurisdiction over cases of alleged excesses by security forces which earlier were under a blanket of immunity provided by AFSPA.
·         Court emphasized on Equality before law quoting that it does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or a state. The law is the same for both and is equally applicable to both.
·         The use of excessive or retaliatory force should be thoroughly inquired. This is essential for rule of law and democracy as well.
The army must be completely transparent in investigating allegations of violations of human rights and bringing the violators to speedy justice.

[1] Amnesty International India September 2013
[2] Amnesty International India September 2013
[3] Commission of Inquiry. Santosh Hegde Commission Report. Page 93. 4 April 2013.