Armed Forces (Special Powers) Act (AFSPA)

The Armed Forces Special Powers Act commonly known as AFSPA came in to force decades ago in the context of increasing violence in the North Eastern states. Passed in 1958 for North East and in 1990 for Jammu and Kashmir, the law gives armed forces necessary powers to control disturbed areas which are designated by the government.

AFSPA gained international attention after Manipur activist Irom Sharmila decided to fast to protest against the Act, which lasted for 16 years.

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.

Who has the 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 when there is a ‘possible dispute or disharmony among the people or against the state/central government or active insurgency’. 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”.

• 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.

• 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.
• In 1983, the AFSPA was enforced in Punjab and Union territory of Chandigarh, and withdrawn in 1997. In 1990, Jammu and Kashmir was declared a ‘disturbed area’ and AFSPA was enforced in the region, where Army continues to have special privileges.
• Apart from the whole of Nagaland, the AFSPA is in force in Assam and parts of Manipur and Arunachal Pradesh. The Act was revoked in Meghalaya on April 1, 2018.

• Declaring Nagalandas a “disturbed area”, the Centre in June 2021 extended the operation of the Armed Forces Special Powers Act (AFSPA) in the state for six more months.
• The Centre is of the opinion that the area comprising the whole of the state of Nagaland is in “disturbed and dangerous” condition.
• The AFSPA has been in force in Nagaland for several decades.
• The legislation granting security forces sweeping powers was not withdrawn even after the 2015 framework agreement signed by Naga insurgent group NSCN-IM and central government’s interlocutor RN Ravi.
• The agreement was hailed as historic since it was signed as a result of 80 rounds of negotiations spanning 18 years. The first ceasefire agreement between the Government of India and Naga insurgent groups was signed in 1997.
• NSCN-IM claimed that the Centre had promised “shared sovereignity” as part of the 2015 agreement.

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.

In 2016, the Supreme Court has said that the Army is not immune to any prosecution by criminal court if found committing any offence.

• 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.

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 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 Unlawful Activities (Prevention) Act (UAPA).

• 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.

Way ahead

• Security forces should be very careful while operating in the Northeast and must not give any chance to the militants to exploit the situation.
• Indiscriminate arrests and harassment of people out of frustration for not being able to locate the real culprits should be avoided. All good actions of the force get nullified with one wrong action.
• Any person, including the supervisory staff, found guilty of violating law should be severely dealt with.
• The law is not defective, but it is its implementation that has to be managed properly.
• The local people have to be convinced with proper planning and strategy.

Conclusion

• 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.