Armed Forces (Special Powers) Act
Armed Forces (Special Powers) Act (AFSPA), 1958 is an act of the Parliament of India that grants special powers to the Indian Armed Forces to maintain public order in "disturbed areas".[1] According to the Disturbed Areas (Special Courts) Act, 1976 once declared 'disturbed', the area has to maintain status quo for a minimum of 3 months. One such act passed on 11 September 1958 was applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one, to the other Seven Sister States in India's northeast (at present, it is in force in the States of Assam, Nagaland, Manipur {excluding Imphal Municipal Council Area}, Changlang, Longding and Tirap districts of Arunachal Pradesh, and areas falling within the jurisdiction of the eight police stations of districts in Arunachal Pradesh bordering the State of Assam[2]).[3] Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force.[4] An act passed in 1990 was applied to Jammu and Kashmir and has been in force since.[5]
The Armed Forces (Special Powers) Act, 1958
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.[6][7] National Politicians like P. Chidambaram and Saifuddin Soz of Congress have advocated revocation of AFSPA, while some like Amarinder Singh are against its revocation.[8][9]
2022: Areas in the Northeast have seen scale down of forces. Since 1954, for the first time, no army unit of the size of brigade is being employed for the purpose of counter insurgency. Now, only one brigade looks after the same role. Though, some of the residual army units are moved to the border areas.[10]
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:
In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. 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.[20]
By Act 7 of 1972, the power to declare areas as being disturbed was extended to the central government.[21]
In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency situations which have been deemed warlike.[20][22]
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:[23]
On 8 July 2016, in a landmark ruling, the Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA, saying, in an 85-page judgement, "It does not 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."[24][25][26]
Non-state views and commentary[edit]
United Nations views[edit]
When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned 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. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards."[30]
On 31 March 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy. Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions said "During my visit to Kashmir, AFSPA was described to me as 'hated' and 'draconian'. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well."[31]
Non-governmental organizations' analysis[edit]
The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination".[32]
The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is part of the problem.[33]