In this article, Sachin Vats of RGNUL discusses Ten Points about AFSPA. Is it misunderstood by masses?
What made the “Iron Lady of Manipur” to fast for such a long period of sixteen years which ended without any fruitful result. The country with diversified culture and beliefs is very critical to understand as the decisions taken by the legislation has to think from a different perspective because the laws should be in accordance with the length and breadth of the country. Some special provisions are indeed essential to tackle specific and serious problems. The Armed Forces Special Powers Act is one such act which confers some special powers to the Armed Forces to combat terrorism in “Disturbed Areas”.
The Birth of AFSPA
The Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance. The Governor of the State has power in his hands under this article to provide the armed forces special powers in Disturbed Areas to face dangerous situations.
The Armed Forces Special Powers Act was enacted in the year 1958 which first came as an ordinance and then made into law. The AFSPA was concerned with only Assam and Manipur in 1958 due to increasing in insurgency by the Naga militants.
Disturbed Areas
The Governor of a State or the Administrator of any Union Territories or the Central Government can decide according to the dangerous situation of the area to declare it as Disturbed. If there is a requirement of use of Armed Forces in aid of the civil powers then it can be declared by the Governor or the Administrator or the Central Government in the official gazette through a notification. The whole or any part of the State or the Union Territories can be declared as Disturbed Areas. All these provisions are stated under Section 3 of the Armed Forces Special Powers Act, 1958. The disturbed areas are declared on the basis of the disputes related with religion, races, castes, communities. The region once declared as disturbed has to maintain a status quo for a minimum time period of three months according to The Disturbed Areas (Special Courts) Act, 1976.
Some Misconceptions related with AFSPA
Nature of AFSPA: Is it really Draconian?
The Governor and the Central Government have power to declare any state or part of the state as “Disturbed” without any specified grounds. The only ground required is to say that the situation is dangerous and aid to the civil power is required which will be given by the armed forces with special power. The country will not tolerate the attack on the Sovereignty and forces are allowed to take even the extreme decisions when there is question about nation’s security. One of the important point here is to note that the area declared as disturbed is not subject to Judicial review.
Many people describes it as “Unconstitutional” on the ground of violation of Article 21 and 22. The Article 21 discusses about the Right to life and personal liberty which includes fair, just and reasonable law. The use of excessive power without reasonable grounds questions the validity in accordance with the constitution. The Article 22 relates to protection against arrest and detention but all these procedures are actually followed or not is always a controversial topic.
The controversies have been already sorted out by the decision of the Delhi High Court in the Inderjit Barua case where it was stated that the AFSPA is constitutional and the Guwahati High Court found it binding on the resective state. People are waiting for the decision of the Hon’ble Supreme Court which pending for few years.
The Section 4 of the Act itself gives special powers to any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces. The maintenance of the public order is of prime importance. Any person who has committed any cognizable offence or against whom any reasonable suspicion exists that one has committed any cognizable offence or about to commit cognizable offence can be arrested even without warrant.
The Section 5 clearly states that the armed forces cannot keep the arrested persons in their custody and they have to be made over to the officer in charge of the nearest police station with least possible delay. The most important point here is that the officer acting under this act is protected through the act. No judicial proceedings, suits, prosecution can be taken against the actions taken by them in exercising the powers conferred by them under this act.
AFSPA in different States
Assam was the first state where AFSPA was enforced. The dangerous activities done by the United Liberation Front of Assam was the reason behind application of AFSPA in Assam. The people must know that the whole State except the Guwahati Municipal Area is under AFSPA. So, it is not applicable in the municipal area of Guwahati.
The ACT is applicable only in the area of 20 km where it shares it border with Assam. There are three districts in Arunachal Pradesh which has been declared as “Disturbed Area”. Tirap, Changlang, Longding along with some area sharing boundary with Assam border are under this Act. The Act was applied in the whole State in 2015 by the Government but later it was withdrawn after consultation with state government.
Nagaland is under the purview of AFSPA even before its formation in 1961. Earlier it was a part of Assam and later independent state was formed. We all are known with the sixteen years long fast of Irom Sharmila for removing AFSPA from Manipur but nothing significant change has happened yet in the state. The AFSPA is applicable in whole state except the Imphal Municipal Area. So, the situation is similar to the Guwahati municipal area.
The Act was applied in Punjab and Chandigarh to counter the Khalistan Movement by the separatists who were demanding for a separate nation on the basis of Sikhism religion. The Act was removed in 1997 but the same was removed by the state government in 2008. People will be surprised that the AFSPA was removed from Chandigarh in the year 2012 by the High Court of Punjab and Haryana.
The AFSPA is applicable in the whole state of Jammu and Kashmir. It was applied under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. The Government led by Farooq Abdullah ruled out Disturbed Area Act (DAA) in 1998 but could not evade AFSPA as it is upon the Centre to decide about application of AFSPA. So, the last resort rests with the Central Government here.
Removal of AFSPA in Tripura
The Armed forces Special Power Act came to an end in the state of Tripura after a time period of 18 years. The decision was taken by the Chief Minister Manik Sarkar who is also the Home Minister of the State. He said that the insurgency is in control and there is no requirement of such Act.
The reason behind the removal of AFSPA in Tripura was that there has been significant decline in militancy and the state observed 84% voting turnout in the 2014 Loksabha election. These positive changes encourage the government to remove the Act.
Conclusion
There has been always allegations made against the armed forces about fake encounters under the garb AFSPA. Various committees have been made for the investigation but people are still waiting for concrete results. According to the provisions of the Act, the armed forces have been given these powers only to aid the police in dangerous situation. There is no any absolute control conferred in the hands of the armed forces as there are only to aid the local police.
Many Human Rights Activists are against the application of AFSPA in different states but an important question arises before us that What is the alternative solution?
The recent attack on the bus of the pilgrims going towards Amarnath and regular attacks on the Army personnel shows that the state like Jammu and Kashmir still has to travel a long way in order to become an undisturbed area. The rise in militancy and the attacks on the citizen shows the need of AFSPA. The Government of India in an All Party meet clearly ruled out any possibility of either lifting or diluting AFSPA in Jammu and Kashmir.
