AFSPA
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This article has been written by Shoronya Banerjee from Amity University, Kolkata. This article talks about the functioning of the AFSPA and the negative side of it by focusing on a few states. It also furthers certain suggestions for better working of it. 

Introduction

The increasing instances of violence in the North-East states of India had made the two houses of the Parliament initiate and pass the Armed Forces (Special Powers) Bill which received the presidential assent on 11th September 1958. The Armed Forces (Special Powers) Act 1958 was put into effect in North-East India from 1958 and Jammu and Kashmir from 1990. This Act provides an exemption for the officials of the Armed forces for working in any way in the prescribed ‘disturbed areas.’ This Act has been the center of several debates and has been highly criticized by human rights activists as they believe that the act introduces threats towards the citizens of India that it is supposed to be protecting. Just like our Indian legal system presumes an offender to be innocent until proven guilty, this Act, in contrary, allows the Armed forces officials to shoot anyone in the eve of a mere suspicion of the commission of an offence.

The Act providing unconditional safeguards to the unlawful acts of the armed and paramilitary forces has attracted the hatred of the citizens of India. Whereas it was introduced for better management of uprising rebellious movements in certain states, the inefficient implementation of the Act has got the ideals behind the implementation deviated and, hardly any betterment has occurred since. Even if the Armed forces have been successful at keeping the enemies off guard and sacrificing their lives for the country, their ruthless and illegal acts in certain instances cannot be ignored as well. 

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Armed Forces (Special Powers) Act, 1958

The AFSPA, put to force in 1958, confers paramount powers on the Armed Forces to control the rebellious and violent uprisings in certain states of the country. This Act was meant to help the armed forces for acquiring control over violent internal demonstrations and unrest organized by underground combative aggressors to continue their illegal and unconstitutional activities and influence more people. The AFSPA was initially introduced to fight against the Naga uprisings following which it was applied to the prescribed disturbed areas as per the Act which was at that time the North-Eastern states of India mainly. 

The State Government’s power of declaring an area disturbed was altered in 1972 and the Central Government was added in the scope too. After a few years, the parliament came up with the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, applicable to areas within 20 kilometres of the Line of Control. Places like Rajouri, Poonch, Baramulla, Budgam, Pulwama and so on were declared as disturbed areas. Almost 20 districts of Jammu & Kashmir have been under the control of AFSPA since 1990. Along with the North-Eastern states and Jammu and Kashmir, it was also implemented in Punjab, but in 2008 it became the first state from which the AFSPA was removed. 

History 

Pre-independence

With the establishment of the Quit India Movement in 1942, and the merger of the Indian National Army and the Japanese soldiers approaching the eastern border of the country, mass violent movements broke out. The All India Congress was declared illegal. Famous leaders were arrested, people were imprisoned, mob violence broke out, the whole situation went out of control. Lord Linlithgow, the then Viceroy of India, declared emergency all over India and thereafter, initiated the Armed Forces (Special Powers) Ordinance 1942. This Act deliberated powers to the Commissioned Officers to act in any manner and apply force when required. It didn’t matter even if it resulted in someone’s death who didn’t work according to the officers when he was asked to stop or ventured to destroy property which was to be protected by such officers. These officers also had the unconditional power of arresting anyone.

Post-independence 

Even after the independence of India, this Act was re-enacted in 1958 in the form of Armed Forces (Special Powers) Act, 1958. Nagaland saw the rebellious uprisings introduced by the Naga National Council (NNC) against the ‘Indian armed forces’ set up in Nagaland to function after 1950. The necessity of a legal base to support the armed forces led to the establishment of Armed Forces (Special Powers) Regulations 1958 by the Congress Government at that time. This was quite similar to the Armed Forces (Special Powers) Ordinance of 1942. But certain changes were made. The part of the declaration of emergency now had disturbed areas. The powers to kill a person on the basis of suspicion of being against public safety or carrying arms and ammunitions, searching a place without a warrant and destroying it as being or was used by such rebellious militant’s groups and so on, were made more definite and specific. Junior commissioned officers had strong powers as well. This Act only applied to the North East region of India, unlike the British ordinance that was applicable to the whole of India. 

Post-1958

The AFSPA 1958 was strongly supported by the then home minister G.B Pant who believed states required protection from some Nagas indulging in murder, arson, dacoity, etc. Critics sitting in the Parliament opposed this bill as it was violative of the Fundamental Rights provided to every Indian. Without declaration, imposing an Emergency in these areas would invalidate the powers of the civil authority concerning the Indian Army. However, no opposition could stop the bill from receiving the presidential assent and being changed into an Act. The Act was again amended in 1972 where K.C. Pant, the new Home Minister, put forth the objectives of the Act specifying that the Armed Forces (Assam and Manipur) Special Powers Act, 1958 should have consistent application in all the North Eastern States. The Governor of these States and the administrators of the two Union Territories were conferred with the power of deciding upon the disturbed areas. This amendment also authorized the Central Government of India to apply this Act. 

Important provisions

The application of AFSPA to an area would only happen if the system of law and order of that area has gone much beyond the control of the State Government disrupting the peace of the society. Whenever the deployment of the armed forces is requested and the AFSPA is put into force in that state, the governance of that state still remains in the civil administration and is not taken away. According to Section 1(2) of the Act, the scope of application of the Act lies within the North-eastern States of Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh, and Mizoram. Some of the important provisions of the Act are:

  1. Section 2 of the Act puts forth certain definitions relatable with this Act. Section 2(a) notifies that the term “armed forces” includes the military forces as well as the air forces which are considered as land forces. It could constitute any other armed forces of the Union as well. Section 2(b) further defines a “disturbed area” as an area that has been notified or declared as a disturbed area under Section 3 of the Act. 
  2. The Central Government, the Governor of a state, the administrator of Union Territories, if is under the opinion of the whole or part of a State or Union territory being under dangerous conditions and requiring the aid of the Armed forces, then they can declare that area as a “disturbed area” under Section 3 of the Act. 
  3. Section 4 of the Act notes down the special powers given to the commissioned, non-commissioned, warrant, or any other officers of the prescribed rank. One of the powers give the authority to the officers of firing or using force, even if it caused the death of the person contravening law and order against whom such steps were taken or even in disturbed areas where even after the assembly of five or more people or the possession of arms or explosive substances are prohibited, it takes place after ignoring the warnings. 
  4. The officers can arrest a person without a warrant if he/she commits a cognizable offence or if there is a suspicion of such a person going to or already have committed such an offence. The force required for the arrest can be applied as the officers deem fit. Officers can even enter and search places without warrants if they believe some property is being used for illegal purposes, used for storing arms, unreasonably confining people and so on. 
  5. According to Section 6, no prosecution or legal proceedings can be furthered against a person acting under the powers given by this Act. It can only be instituted with authorization from the Central Government. 

Working of AFSPA in Nagaland

The implementation of the Act in Nagaland has shown to the world the instances and cases of human rights violations, particularly by law enforcement agencies. A report was given by the Village Panchayat of Khuivi under Zunobetuo district on how the families of National workers were taken to the army concentration at Atukuzu under Zunobetuo district. They were punished and tortured for 8 months. Report filed by the Naga Hills Rehabilitation Committees in 1960 noted that several Christian Churches were damaged and destroyed in different areas of Nagaland by the Armed forces. 

A reporter of the “Nagaland Post”, a local daily, had witnessed the 16th Punjab Regiment of Indian armies rounding up the villagers of the Kanjang village, separating the men and beating them mercilessly. In the other half of the day, women and children were sent to the forests and the men of the village were beheaded and burnt. One of the men was the father of the reporter. Four minor girls were forced and taken to the Yankeli Baptist Church by the officials of the Contingents of the 1st Maratha Regiment. The girls were raped in the most sacred part of the church. Such an inhumane activity in a holy place was ruthless and this was considered to be the action against the Naga uprisings but completely deviant of the actual goal of controlling the uprising. Several such incidents have been reported over the decades but without any justice or solution.

But again as believed, the AFSPA has helped to keep the violent uprisings under control but yet it has been retained for ages even after the ceasefire agreement in 2015. In December 2019, according to the Central Government, as killings, extortions and dacoity were increasing in several parts of the state, it required the security forces to operate there. The Central Government notified that the state would be under the category of the ‘disturbed area’ for six months beginning from 30th December 2019 as per Section 3 of the Armed Forces (Special Powers) Act, 1958.

This went on to the Chief Minister of Nagaland, Neiphiu Rio who notified in February 2020 that the state would remain as a ‘disturbed area’ under the AFSPA till the Naga political issue had a solution and the peace accord was established. The chief minister notified this in the fifth session of the 13th Nagaland Legislative Assembly (NLA). But the opposition, the Naga People’s Front, spoke in the House that the State Government had been creating confusion and false hope among the people about the peace accord between the Naga political parties and the Centre. 

Meghalaya and certain places of Arunachal Pradesh free from AFSPA

Even though the Tripura Government had revoked AFSPA from the state after 18 long years, it was on 30th September 2017, that areas constituted within the 20-km belt in Meghalaya bordering Assam were declared as “disturbed areas”, although this was reduced to a 10-km belt on 1st October 2017. This wasn’t operational in Mizoram. In 2018, Meghalaya, Tripura and certain stations in Arunachal Pradesh had recorded almost 85 percent dip in militancy and uprising levels after which the AFSPA which was almost in force for 27 years in Meghalaya and Arunachal Pradesh was removed by the Centre. AFSPA was removed from 8 out of 16 police stations in Arunachal Pradesh. 

The Act was re-issued for another six months in 3 eastern districts of Arunachal Pradesh bordering Myanmar and other such stations bordering Assam. These 3 districts have been under the control of AFSPA since 2016. Two parts of Arunachal Pradesh and Meghalaya had been declared as ‘‘disturbed areas” in 1991 for preventing these places from getting affected by the militancy and insurgency by organizations like the United Liberation Front of Asom (Ulfa) of Assam. 

Jammu and Kashmir

The medium of war between India and Pakistan, Jammu and Kashmir came up with its uprisings and separatist development movements in and around 1989. The involvement of Pakistan in encouraging these militants and directing Islamist jihadists in reclaiming the land by organizing more movements worsened the condition of the state. The AFSPA was put to effect with the establishment of the Jammu and Kashmir Disturbed Areas Act, 1990. This was set to expire in 1992 but was re-enacted in the form of President’s Act, 1992 under Article 356 of the Indian Constitution authorizing the parliament to legislate on Jammu and Kashmir. The Armed Forces (Jammu and Kashmir) Special Powers Act 1990 installed in Jammu and Kashmir received the presidential assent on 10th September, 1990 and was put to effect on 5th July 1990. This Act would apply to areas declared ‘disturbed’ by state or the central government and it would require land forces to be deployed for the implementation of the Act. This saw the Governor’s administration declaring all the six districts namely Anantnag, Baramulla, Badgam, Kupwara, Pulwama and Srinagar in Kashmir disturbed alongside areas at a distance of  20 kilometres from the LoC near Poonch and Rajouri. 

This Act authorizes officers to fire or use any force against persons held to be contravening the laws in the disturbed areas. They wouldn’t even require any warrants to arrest someone who has, had or has the probability of committing a cognizable offence under the Act. No legal proceedings against an army personnel could be furthered even in case of any violation or breach of laws. These powers conferred on the armed forces for a different use has been utilized time and again to make the lives of innocent civilians miserable and it has also facilitated the commission of brutality against them by such officials. Chief Minister Omar Abdullah during his term had consistently asked for the withdrawal of AFSPA from certain areas of Jammu and Kashmir which accordingly did not need it. The army along with fighting against infiltrators have also caused brutalities against civilians in the name of protection and duty.

For instance, in the firing in Shopian district of Jammu and Kashmir by the armed forces for saving army officers and their arms from a violent mob, three civilians had been killed. An FIR was filed against the armed forces under Sections 302 and 307 of the Indian Penal Code for an attempt to murder and murder. But it was held that the army could use their special powers under the AFSPA and also it was notified that the state police department couldn’t have filed an FIR against army personnel. Then the report of a youngster of Anantnag in Kashmir was tortured and interrogated as he was under the suspicion of being a militant. One minor girl from Palhalan was brought in for interrogation of the whereabouts of her neighbour and in that process, she was stripped naked and almost beaten to death. The list of such brutalities that go unchecked is never-ending till date. More than 90 percent of such brutalities are ignored and not reported. 

Suggestions

Some viable suggestions for better working of the AFSPA could be:

  1. Section 4(a) which is completely against the scope of international human rights that protects the right to live should be repealed or amended. It also violates the principles upheld by criminal justice, that is the assumption of innocence until one is proven to be the offender. When the armed forces are called to take control of the disturbed areas, the power conferred upon them of using unconditional force as per Section 4, validates the commission of extrajudicial killings which is inconsistent with Article 246 of the Indian Constitution read with the 7th Schedule that places ‘Law and order’ under the State’s list. Therefore, it is Ultra vires. 
  2. Section 5 of the Act should be consistent with Article 22 of the constitution under which it is compulsory to present an arrested person in front of the Magistrate within 24 hours. 
  3. The scope of Section 6 should be increased to keep a close check on the armed forces and stop them from committing inhumane and heinous crimes against innocent civilians. The sanction of the Central Government shouldn’t be waited for, maybe a special committee could be formed to begin enquiries straight away without any delays or prejudices against anyone. 
  4. The suggestion put forth by the Sarkaria Commission of the states to develop their system of maintaining and dealing with public order and also as per the recommendations of the National Police Commission of deploying the Central Reserve Police force for day to day policing instead of engaging the army and paramilitary forces should be looked into and so on. 

Conclusion

The reason for which the AFSPA was introduced even after the colonial rule was to protect the country from enemies and anti-national uprisings. But has the Act been implemented for that work till date? Through the years, the list of crimes and inhumane activities committed by the Armed forces have broken records. Instead of protecting the nation’s people, it has been exploiting them ruthlessly. Even if on one side it has successfully stopped uprisings and enemies from infiltrating the country, on the other side it has become a reason to invite the vengeance of the people of the nation and give birth to greater anti-national uprisings. So, what really needs to be done is keeping a good and strict check on the officials, amend the laws and introduce rigorous punishment for such offences. It is also important to introduce limitations for the unconditional power of the Armed forces and introduce a greater role for the Supreme Court to attain justice. 

References


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