AFSPA gives armed forces the power 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 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.
Power to declare it:
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”.
Origin of AFSPA:
The Act came into force in the context of increasing violence in the Northeastern 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.
- Under Section 4 of the AFSPA, an authorised officer in a disturbed area enjoys certain powers. The authorised officer has the power to open fire at any individual even if it results in death if the individual violates laws which prohibit (a) the assembly of five or more persons; or (b) carrying of weapons. However, the officer has to give a warning before opening fire.
- The authorised officer has also been given the power to (a) arrest without a warrant; and (b) seize and search without any warrant any premise in order to make an arrest or recovery of hostages, arms and ammunitions.
- Individuals who have been taken into custody have to be handed over to the nearest police station as soon as possible.
- Prosecution of an authorised officer requires prior permission of the Central government.
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) 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; (b) AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’; (c) the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired; (d) while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action, and (e) the authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.
- It has been dubbed as a license to kill. The main criticism of the Act is directed against the provisions of Section 4, which gives the armed forces the power to open fire and even cause death, if prohibitory orders are violated. Human rights activists object on the grounds that these provisions give the security forces unbridled powers to arrest, search, seize and even shoot to kill.
- Activists accuse the security forces of having destroyed homes and entire villages merely on the suspicion that insurgents were hiding there. They point out that Section 4 empowers the armed forces to arrest citizens without warrant and keep them in custody for several days.
- They also object to Section 6, which protects security forces personnel from prosecution except with the prior sanction of the central government. Critics say this provision has on many occasions led to even non-commissioned officers brazenly opening fire on crowds without having to justify their action.
- Critics say the act has failed to contain terrorism and restore normalcy in disturbed areas, as the number of armed groups has gone up after the act was established. Many even hold it responsible for the spiralling violence in areas it is in force.
- The decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. Hence, several cases of human rights violations go unnoticed.
Recommendations made by experts:
Jeevan Reddy Committee: A committee headed by Justice Jeevan Reddy was appointed in 2004 to review AFSPA. Though the committee found that the powers conferred under the Act are not absolute, it nevertheless concluded that the Act should be repealed.
However, it recommended that essential provisions of the Act be inserted into the Unlawful Activities (Prevention) Act of 1967.
The key recommendations of the Reddy Committee were:
- In case the situation so warrants, the state government may request the Union government to deploy the army for not more than six months.
- The Union government may also deploy the armed forces without a request from the state. However, the situation should be reviewed after six months and Parliament’s approval should be sought for extending the deployment.
- Non-commissioned officers may continue to have the power to fire.
- The Union government should set up an independent grievances cell in each district where the Act is in force.
Justice Verma report mentioned the Act as a part of a section on offences against women in conflict areas. “Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law,” the report said, adding that “there is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.” This resonates with the ruling by the Supreme Court in July that the Army and police are not free to use excess force even under the AFSPA. However, none of these have made any real difference to the status of the AFSPA.
The Second Administrative Reforms Commission headed by then Union law minister M Veerappa Moily also recommended that AFSPA should be repealed and its essential provisions should be incorporated in the UAPA. If this course of action is adopted, it would be a retrograde step that will substantially harm the national cause
But, why have AFSPA?
- 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, it is the army leadership’s considered view that the performance of battalions in counter-insurgency operations will be adversely affected and the terrorists or insurgents will seize the initiative.
- Many argue that removal of the act will lead to demoralising the armed forces and see militants motivating locals to file lawsuits against the army.
- Also, the forces are aware that they cannot afford to fail when called upon to safeguard the country’s integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilization of combat capability. This includes safeguards from legal harassment and empowerment of its officers to decide on employment of the minimum force that they consider essential.
- The absence of such a legal statute would adversely affect organizational flexibility and the utilization of the security capacity of the state. This would render the security forces incapable of fulfilling their assigned role.
- AFSPA is necessary to maintain law and order in disturbed areas, otherwise things will go haywire. The law also dissuades advancement of terrorist activities in these areas.
- Also, extraordinary situations require special handling. As the army does not have any police powers under the Constitution, it is in the national interest to give it special powers for operational purposes when it is called upon to undertake counter-insurgency operations in disturbed areas.
Protective measures provided:
- Section 5 of the Act already mandates that arrested civilians must be handed over to the nearest police station ‘with the least possible delay’ along with a report of ‘circumstances occasioning the arrest.’
- Army HQ has also laid down that all suspects who are arrested will be handed over to civilian authorities within 24 hours.
- Regarding firing on civilians, the army’s instructions are that fire may be opened in towns and villages only in self defence and that too when the source of terrorist or militant fire can be clearly identified.
The practical problems encountered in ensuring transparency in counter-insurgency operations must be overcome by innovative measures. The army must be completely transparent in investigating allegations of violations of human rights and bringing the violators to speedy justice. Exemplary punishment must be meted out where the charges are proved.