Armed Forces (Special Powers) Acts (AFSPA) and its impactViews: 5543
Armed Forces Special Powers Act (AFSPA) is often imposed in the areas where situation of law and order is not under control of local police and central forces. But, the powers of Armed Forces (Special Powers) Act, has often led to controversies, since the act authorizes the use of all 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.
What is AFSPA ?
Armed Forces Special Powers Act (AFSPA) is a series of act created by the Parliament of India, that gives armed forces the power to maintain public order in “disturbed areas”. The Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance. Armed forces have the authority to prohibit a gathering of five or more persons in an area. The forces find suspicion, they can arrest a person without a warrant; enter or search a 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.
What is the history of AFSPA ?
The history of AFSPA, goes back to colonial times, as it was first brought into action by the British government on 15 August 1942 to crush the Quit India Movement. Based on the act, four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance were created. These acts were invoked by the central government to deal with the severe security crisis in the country in 1947 which emerged due to the Partition of India.
But the act was once again, reemerged to quell violence in the internal security matters. Armed Forces Special Powers (Assam and Manipur) Act, 1958 was promulgated by the Indian President Dr Rajendra Prasad, to cull the violence in North Eastern states. The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act on 6 October 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 except for two sections, which provided additional powers to the armed forces. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted in September, 1990,
What are the powers of Armed Forces Special Powers Act (AFSPA) ?
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:
- Use of any 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 anyone, 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 the 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.
- Offer protection to 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.
Why the acts are opposed ?
These acts are opposed on the basic grounds that provide impunity for human rights abuses, unleash violence and also fuels cycles of violence. Several human rights activists have questioned numerous questions about the validity of the act. Many international experts have also raised the question about the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. They also requested to repeal the AFSPA and termed it as outdated and colonial-era law that breach contemporary human rights standards. AFSPA is often described as the hated and most draconian law and it clearly violates international law.
The Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Since there is a comparative decline in terrorist activities with the number of terrorists killed and reduction in the number of infiltration and Jihadi activities, many argue that AFSPA could be repealed. But Armed forces feel that lifting of act from certain areas may result in terrorists seeking shelter and rebuilding their spaces. One can never tolerated human rights violation committed in the name of AFSPA, so the government needs to bring a scientific and humanitarian approach towards solving the socio economic problems of the disturbed areas rather than implement the AFSPA.