Armed Forces (Special Powers) Act
Armed Forces (Special Powers) Acts (AFSPA), are Acts of the Parliament of India that grant special powers to the Indian Armed Forces in what each act terms “disturbed areas”.
- One such act was passed on 11 September 1958 and applied to the Seven Sister States in India’s northeast.
- Another passed in 1983 and applied to Punjab and Chandigarh and was withdrawn in 1997, roughly 14 years after it came to force AND from Tripura in 2015.
- Another such act was passed in 1990 and applied to Jammu and Kashmir.
The Acts have received criticism from several sections for alleged concerns about human rights violations in the regions of its enforcement alleged to have happened.
Irom Chanu Sharmila who is also known as the “Iron Lady of Manipur” is a civil rights activist, who has been in a hunger strike for nearly 15 years. Her primary demand to the Indian government has been the repeal of the AFSPA.
The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15 August 1942 to suppress the Quit India Movement.
Armed Forces Special Powers (Assam and Manipur) Act, 1958
- The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President Dr. Rajendra Prasad on 22 May 1958. It was replaced by Armed Forces (Assam and Manipur) special Powers Act, 1958 on 11 September 1958.
- The Armed Forces (Assam and Manipur) Special Powers Act,1958 empowered only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or the Union Territory as ‘disturbed’. The reason for conferring such a power as per “Objects and Reasons'” appended to the Bill was that, “Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as ‘disturbed’, to enable its armed forces to exercise the special powers”.
- The territorial scope of Act also expanded to the five states of the North-East, – Assam, Manipur, Meghalaya, Nagaland, Tripura and to the Union Territories Arunachal Pradesh and Mizoram. In addition, the words, “The Armed Forces (Assam and Manipur) Special Powers Act, 1958” were substituted by “Armed Forces (Special Powers) Act, 1958”, getting the acronym of AFSPA, 1958.
- Recently the Tripura state government has decided to withdraw the controversial act citing significant reduction in the extent of terrorist activities in the state.
- In June 2015, after review, AFSPA in nagaland state has been extended by one more year
The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
The central government enacted the Armed Forces(Punjab and Chandigarh) Special Powers Act on 1983, repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983, to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh. The Act was enforced in the whole of Punjab and Chandigarh on 15 October 1983.The terms of the Act broadly remained the same as that of the Armed Forces Special Powers Act (Assam and Manipur) of 1972 .
The Act was withdrawn in 1997, roughly 14 years after it came to force.
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted in September, 1990.
The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:
- Failure of the administration and the local police to tackle local issues
- Return of (central) security forces leads to return of miscreants/erosion of the “peace dividend”
- The scale of unrest or instability in the state is too large for local forces to handle
AFSPA is confined to be enacted only when a state, or part of it, is declared a ‘disturbed area’. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.
By Act 7 of 1972, the power to declare areas as being disturbed was extended to the central government.
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as “disturbed”, an officer of the armed forces has powers to:
- After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order,
- Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.
- To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.
- To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.
- Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.
- Any person arrested and taken into custody under this Act shall be made present over to the officer in charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.
- Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government’s judgment on why an area is found to be disturbed subject to judicial review.
- Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.
Meghalaya High Court Call for Invoking Armed Forces Special Powers Act in Garo Hills
- A full bench of the Meghalaya High Court issued a suo moto Order directing the Government of India to consider promulgation of the Armed Forces Special Powers Act (AFSPA) in the Garo Hills region of the State.1 This order was delivered in the context of the Court’s negative perception of the internal security milieu in the southern parts of the State, particularly in the South-West, South, West and East Garo Hills districts, and regions bordering Bangladesh.
- The High Court has cited various recent instances of widespread lawlessness in the region including extortions and kidnappings by Garo National Liberation Army (GNLA) insurgents.
- The same Court had taken a forthright stand on similar subversive activities by another insurgent group – the Hynniewtrep National Liberation Council (HNLC), which, though presently subdued, has been trying to make its presence felt in the Khasi and Jaintia Hill districts of the State. In an Interim Order issued on May 27 2015, the Court had directed the State Government to restrain the media from publicising statements or calls of bandh issued by the HNLC, so that the fundamental rights of the citizens guaranteed under the Constitution are not jeopardised.
- Coming back to the Court’s Order, while acknowledging that law and order is a State subject under the Constitution, the Bench reminded the Union Government of its constitutional obligation to protect the State against internal disturbance under Article 355 and the fundamental rights of the citizens under Article 21.
- To ensure an environment that sustains normal civic life and the basic rights of the people in the State, the High Court observed that it has no option but to direct the Central Government to consider invoking the AFSPA in the Garo Hills area and the deployment of armed and para-military forces in the aid, but certainly not under the control, of civil and police authorities.
- The MHA had taken a stand before the Court that it is for the State Government to effectively utilise the CAPFs in counter-insurgency operations. It also submitted that it will review the deployment of additional CAPFs in Meghalaya after the 2015 Bihar state assembly elections.
- The Court had obviously not accepted the Government of India`s contention about the adequacy of security resources available and deployed vis-à-vis its perception of the internal security milieu in parts of the State. While some may consider the Court directive to the Union Government as a case of judicial overreach and intrusion in the domain of the executive (the Minister of State for Home has already indicated that the Court Order will be contested), a contrasting view may be that the Court’s decision should actually help the Central and State Government authorities to show greater political will to contain the insurgents through a multi-pronged approach.
- A holistic appraisal of the internal security environment in the seven North-Eastern States, excluding Sikkim, shows that Meghalaya is relatively better placed. The GNLA is largely a home-grown insurgent force sustained by extortions and smuggling activities which can be contained with better deployment of the available force and with support from the local people.
- But the worrisome part is the low-key approach of the established political parties towards the insurgents, and the politician-middlemen-contractor nexus at the district level in siphoning off funds allotted under various development schemes. This nexus is breeding corruption and also distorting the visibility of many of the Central schemes among the common people
- Strengthening of social audit could lead to greater public awareness about the role of the state in promoting development and welfare of the people to counteract the insurgents
- Moreover, the AFSPA, to be an effective support measure for the security forces and also engender confidence among the people within its ambit, should be revoked within a specified period.
- The aspect of utilisation of security forces including CAPFs in a State – particularly in an autonomous manner – is a sensitive matter and has constitutional ramifications.
- A consensual political view in this regard, particularly through a mechanism like the Inter-State Council, is of the essence, and should be formulated in the context of the situation cited by the Meghalaya High Court.