Armed Forces (Special Powers) Act, 1958(AFSPA)

November 5, 2011

Union Home Minister P Chidambaram recently said that a consensus is being built to amend Armed Forces (Special Powers) Act, 1958 (AFSPA).
The minister said that the Act can be amended only after a consensus is built among the government.
Regarding Jammu & Kashmir, he said that if the state withdraws the Disturbed Areas Act, AFSPA will automatically go.
In Kashmir, the Government has asked the state government to review the application of Disturbed Areas Act and if that act is reviewed, then automatically if the DA does not apply to areas in Kashmir, AFSPA is not applied to that area in Kashmir.
Previously in September 2010, an all party meet was organized, chaired by the PM.
The political parties had failed to reach a consensus over the dilution of Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir to control violence in the Valley.
Prior to that Omar Abdullah had recommended to the central government that the Act be revoked in three districts-including Srinagar- in Kashmir and three in Jammu.
Its worth note that as per the recommendations of Justice B. P. Jevan Reddy committee, the AFSPA had become “a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness“.
The committee has emphasized that “the Act is too sketchy, too bald and quite inadequate in several particulars”, the Committee was of “the firm view” that it should be repealed.
The committee had further recommended the addition of a new chapter in the Unlawful Activities (Prevention) Act to deal with disturbed conditions in a State, removing the harsh features of the AFSPA. The committee had submitted the report in 2005.

Background:

The Armed Forces (Special Powers) Act was enacted by Parliament on September 11, 1958.
It conferred special powers upon the armed forces in disturbed areas in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura. The act was introduced in Jammu and Kashmir in 1990 and since 2007 its repeal has become a rallying point for all the separatist groups as also the mainstream parties, including the National Conference and the People’s Democratic Party.
AFSPA was enacted to provide army officers and jawans legal immunity for their actions in disturbed areas. Under this act, a member of the Indian armed forces cannot be prosecuted or tried in any criminal or civil court for any act committed by him or her while performing duty in a disturbed area. Moreover, no court or quasi-judicial body can question the government’s decision to declare any area disturbed.
The provisions of AFSPA is very objectionable as it requires the following:
- All that is necessary for a part of the State to be handed over to the armed forces is for the Governor or the Central Government to notify it to be in a “disturbed and dangerous” condition.
- Even a non-commissioned officer of the armed forces is free, on the mere suspicion of violation of the law or commission of an offence, to fire upon or otherwise use force, even to the causing of death, against any person.
- He can also without any warrant, arrest any person and enter and search any premises.
- No prosecution of anyone indulging in excesses purporting to act under AFSPA is possible except with the previous sanction of the Government.