Armed Forces (Special Powers) Act

The Armed Forces (Special Powers) Act (AFSPA) is a controversial legislation enacted by the Parliament of India that grants special powers to the Indian armed forces in designated “disturbed areas” of the country. The Act has been in force in various regions of India since 1958 and has been the subject of much debate and criticism due to concerns over human rights violations and the alleged misuse of power by security forces.

Background

The AFSPA has its roots in the British colonial era, when the Armed Forces (Special Powers) Ordinance was promulgated in 1942 to suppress the Quit India Movement. After India gained independence, the ordinance was replaced by the Armed Forces (Special Powers) Act of 1948, which was later amended in 1958 and extended to various regions of the country.

The Act was first applied to the Northeast region of India, particularly in the states of Assam and Manipur, to counter insurgency and maintain public order. Over time, it was extended to other parts of the country, including Jammu and Kashmir, where it has been in force since 1990.

Key Provisions

The AFSPA grants the following special powers to the armed forces in designated “disturbed areas”:

• The power to arrest without a warrant and to use force, including lethal force, against any person acting in contravention of the law.
• The power to enter and search any premises without a warrant.
• The power to destroy any property or shelter that is believed to be used by insurgents.
• Legal immunity for actions taken under the Act, unless approved by the central government.

The Act also provides for the declaration of an area as a “disturbed area” by the central government or the governor of a state if they are of the opinion that the area is in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is necessary.

Controversies and Criticisms

The AFSPA has been the subject of much controversy and criticism over the years, with many human rights organizations and activists calling for its repeal. Some of the main criticisms of the Act include:

• Human rights violations: There have been numerous allegations of human rights abuses by security forces operating under the AFSPA, including extrajudicial killings, torture, and enforced disappearances. Critics argue that the Act provides a shield of impunity for such abuses.
• Lack of accountability: The legal immunity provided to security forces under the Act makes it difficult to hold them accountable for their actions, even in cases of serious human rights violations. In many cases, investigations into such incidents have been delayed or abandoned altogether.
• Misuse of power: Critics argue that the broad powers granted to security forces under the AFSPA are prone to misuse and abuse, leading to harassment and intimidation of civilians, particularly in areas with a history of insurgency or civil unrest.
• Impact on civil liberties: The AFSPA has been criticized for curtailing basic civil liberties and freedoms, such as the right to peaceful assembly and freedom of movement, in the name of maintaining public order.

Judicial Interventions

The constitutionality of the AFSPA has been challenged in the Supreme Court of India on several occasions. In 1997, in the case of Naga People’s Movement of Human Rights v. Union of India, the Supreme Court upheld the constitutionality of the Act but laid down certain guidelines to prevent its misuse, such as the requirement of a complaint before the use of force and the need for an inquiry in case of death or injury caused by security forces.

Calls for Repeal and Reform

There have been persistent calls from various quarters for the repeal or reform of the AFSPA. In 2004, the Justice Jeevan Reddy Committee, set up by the central government to review the Act, recommended its repeal and the insertion of appropriate provisions in other laws to address security concerns.

In 2005, the Second Administrative Reforms Commission, headed by Veerappa Moily, also recommended the repeal of the AFSPA and its replacement with a more humane and accountable law. However, these recommendations have not been implemented so far.

The Armed Forces (Special Powers) Act has been a contentious issue in India for several decades, with strong arguments on both sides. While supporters of the Act argue that it is necessary to maintain public order and counter insurgency in disturbed areas, critics point to the human rights abuses and lack of accountability associated with the Act.