Armed Forces Special Powers Act 1958 (AFSPA)

It is an act of the ‘Parliament of India’ that grants special powers to ‘The Indian Armed forces’ to maintain public discipline in disturbed areas like: 

1. Areas with a high number of insurgencies
2. Too much illegal border crossing takes place 
3. And these infiltrations are causing anti-state activities 

It gives extensive powers to the Indian Armed Forces. They are given the following permission:

• To arrest any individual without warrants on suspicion.
• Destroy hideouts from where armed attacks are being launched or arms dumps or fortified areas or any arms training is carried out.
• Open fire, which may even cause death, against any person who is causing .hindrance to the law or possesses arms and ammunition. However, it cannot be carried out without warning to the suspect.
• The Security forces must hand over the Suspect to the local police within 24 hours of detention. 
• The armed forces cannot act as an independent body and must act in alliance with the District Administration.
• The most controversial power is that No AFSPA person can be put into any legal proceedings for any action taken under the act. Until or unless there is a previous sanction from the Central Government. 

The History of Armed Forces Special Powers Act (AFSPA):

• To suppress the Quit India Movement the British Government formulated the ‘Armed Forces Special Powers Ordinance’ on August 15, 1942. 
• Later in 1947, to control unrest during partition time, migration near the border area, and Bengal disturbed areas.
• Then finally in order to deal with the uprising disturbances in the Naga Hills and insurgency in adjoining areas. The Armed Forces (Assam and Manipur) Special Powers Act, 1958 was formulated
• Assam at that point included Arunachal Pradesh, Meghalaya, Mizoram, Nagaland, and Tripura. Thus, it was implemented in all North-Eastern states.

As per the amendment in the ACT in 1972, under section 3,

• The Central Government
• The Governor of any state
• The Administrator of a Union Territory 

can declare or notify an area as a ‘Disturbed Area’

• Usually, the Central Government decides on a recommendation from the State even though it has the power to take a unilateral decision.

• In 1983, The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act in the State of Punjab and the Union territory of Chandigarh. As a consequence of the Khalistan movement which started in the 1980s. And it was withdrawn after 14 years in 1997. This act was similar to the AFSPA act but two additional powers were provided 
  –   Police could stop any car for search and if required they were allowed to Seize it forcibly. 
  –   If the suspect is withholding and not letting the Forces open, then they have the power to break open any lock.

• The AFSPA in Jammu & Kashmir was enacted in 1990 to control the unprecedented rise in terrorism and insurgency in Jammu and Kashmir. It extends to the entire state of Jammu and Kashmir. This is called J & K Armed Forces (Special Powers) Act, 1990 separate from AFSPA although its powers are the same as AFSPA.

Rigorous demands to cut the AFSPA area of Operation:

• In 2000, in the Imphal Valley of Manipur, ten civilians were shot and killed who were waiting at a bus stop. The incident referred to as the “Malom Massacre”, was carried out by the Assam Rifles, one of the Indian Paramilitary forces operating in the state.
• After this incidence in 2000, Irom Chanu Sharmila also known as ‘Iron Lady of Manipur’started a hunger strike and continued for 16 years against AFSPA operations in Manipur.
• In fact, the central government in 2005, had set up a five-member committee under former Supreme Court Justice B.P Jeevan Reddy.
   – They said “the Act is a symbol of hate, oppression, and instrument of high-handedness” 
   –  Also recommended revoking AFSPA.
However, it was rejected by the government.

Subsequently, the Second Administrative Reforms Commission (ARC) in its 5th report, under the chairmanship of Veerappa Moily, supported the Jeevan Reddy commission and recommended that the time has come to revisit the AFSPA act.
In fact, many Retired Lieutenant General of the Indian Army have opposed AFSPA in the press articles. 

Supreme Court verdict in 2016:

• The Supreme Court rejected the government’s disagreement that any restriction on AFSPA forces can demoralize the security forces. 
• The power given to the AFSPA Armed Forces that No prosecution or legal proceeding can be carried out (except with the previous sanction of the Central Government) against them for any form of activity while exercising their powers was gibed even by the Court.
• Thus, The Supreme Court 2016 judgment states “It doesn’t 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 the state. The Law is the same for both and is equally applicable to both…. This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.” Categorically the Court dismissed the government’s argument.

The Most Recent Rationale behind the Opposition to AFSPA:

• After the killings of 14 civilians in Nagaland’s Mon district on December 4, 2021.  Once again AFSPA was put in conflict zones of India, and several human rights activists said AFSPA is an oppressive law and there is no place for it in a democratic country like India. AFSPA has been deemed a controversial law, with human rights violations and hostile behaviour. Nagaland Government set up a ‘Special Investigation Team’ to probe the situation. The Government headed by NDDP an ally of the BJP passed a ‘Cabinet Memo’ for the repeal of the Act in Nagaland.
• On the other hand, the Government has been defending the Act by saying a law like AFSPA is necessary to fight against terrorism and infiltration.

Is There a Need for the Removal of AFSPA? 

• The improved security situation and  development of the region have resulted in a reduction of areas under AFSPA
• It has been removed or revoked from the following areas on the recommendation by the State Cabinet:
  –  In 2015 it has been removed from Tripura, where it was enforced in 1997
  –  In April 2018, revoked AFSAP from Meghalaya after 27 years. But only 20 km of the area attached to Assam it is applicable.
  –  In 1997 after 14 years, The Armed Forces (Punjab and Chandigarh) Special Powers Act in the State of Punjab and the Union Territory of   Chandigarh was withdrawn.
  –  Recently The Union Home Ministry has considerably reduced the “disturbed areas” under the Armed Forces (Special) Powers Act (AFSPA) in Assam, Manipur, and Nagaland.

Surely the consistent efforts and several agreements by the Indian government have also contributed to it. Besides most of the militant groups have entered into peace agreements with the government.

Conclusion:

Indian Army doesn’t want AFSPA to be repealed because they believe Armed Forces personnel needs such powers in the disturbed areas to take immediate action with confidence. It may jeopardize the security of the country if the Armed Forces won’t able to take action against Infiltrators or Militants. There are valid reasons on both sides those who favour and those who oppose AFSPA. Modifications in the Act are required but before that, it is important not to neglect these points.

• North-Eastern states have always been breeding grounds of militancy and insurgency. Where militants get training in the northernmost regions of Myanmar which spreads into the Indian territory. Their aim is to attain Independence, there are suggestions that China helps them by giving weapons and training. First, they give it to Myanmar terrorist groups who pass it on to Indian rebels operating in the region.
• Similarly in Jammu and Kashmir indirectly the Indian Army has to fight the Pakistani representatives. 
• All these Armed groups have their own arms and ammunition. Someone bigger organization is supporting these groups. So AFSPA is the tool developed by the government to deal with these militant groups.
• The local police and security forces cannot be placed against these groups as their family members are living in the same area. That’s why the Indian army and other central armed police forces are brought into these areas. 

So instead of repealing AFSPA from the disturbed areas, it’s better to create more feasible and reliable policies.