ARMED FORCES SPECIAL PROVISIONS ACT: Civil Services Mentor Magazine: April - 2017

ARMED FORCES SPECIAL PROVISIONS ACT

::ARMED FORCES SPECIAL PROVISIONS ACT::

The Armed Forces (Special Powers) Act, 1958, or AFSPA, as it is commonly known, has been a subject of intense discussion and debate. AFSPA has been in force in the North- East and Jammu and Kashmir, and the 'draconian' law has been the reason of wide protests. The Armed Forces (Special Powers) Act, 1958 (AFSPA) was preceded by the Armed Forces (Assam and Manipur) Special Powers Ordinance 1958. The Ordinance gave the armed forces certain special powers in the 'disturbed areas' of Manipur and Assam. It was replaced by AFSPA on September 11, 1958. Currently, AFSPA is applicable to the seven states of the North-East, i.e. Assam, Manipur, Mizoram, Arunachal Pradesh, Meghalaya, Nagaland and Tripura. AFSPA empowers the governor of the state, or the central government to declare any part of the state as a 'disturbed area', if in its opinion there exists a dangerous situation in the said area which makes it necessary to deploy armed forces in the region.
 
The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 1942 to suppress the QIM. Then after the independence Armed Forces (Assam and Manipur) Special Powers Act, 1958. It was to deal with challenges posed by fissure tendencies. It empowered only the Governors of the States and the Administrators of the UT's to declare areas in the concerned State or the Union Territory as 'disturbed'. The territorial scope of Act also expanded to the five states of the North-East - Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram. The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 was passed to deal with the problem khalistani movement. The terms of the Act
broadly remained the same as that of the Armed Forces Special Powers Act (Assam and Manipur) of 1972. Section 4 (e) of The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 stipulates that any vehicle can be stopped, searched and seized forcibly if it is suspected of carryin proclaimed offenders or ammunition. Section 5 was added to the Act specifying that a soldier has the power to break open any locks "if the key there of is withheld".
 
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted to deal with the problem of terrorism in Kashmir. If the Governor of Jammu and Kashmir or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition then this act can be imposed.
 
In India provisions are mentioned with in the constitution under which the Emergency can bedeclared. Although law and order is a state subject, but under these conditions centre can intervene to tackle the law and order problem which is present in the state. These conditions are given below:
  • Failure of the administration and the local police to tackle local issues.
  • Return of (central) security forces leads to return of miscreants/erosion of the "peace dividend".
  • The scale of unrest or instabilityin the state is too large for local forces to handle.
Armed forces have been given special powers to deal with challenges they have to face. Armed forces special powers have led to various human rights voilations and also various national and international human rights organisations have questioned the AFSPA. Special Powers given to Armed Forces under AFSPA are as follows:
  • Destroy any arms dump, hideouts, prepared or fortified position or shelter or training camp
  • To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done.
  • After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area
  • To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained. Stop and search any vehicle or vessel reasonably suspected.
  • 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.
  • Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government.
Various committees and Judicial verdicts have given their opinion on AFSPA, whether it should be applicable and which provisions should be changed to make it workable. There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has
upheld the constitutionality of AFSPA in a 1998 judgement (Naga People's Movement of Human Rights v. Union of India). In this judgement, the Supreme Court arrived at certain conclusions including (a) a suo-motto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration; (b) AFSPA does not confer arbitrary powers to declare an area as a 'disturbed area'; (c) the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired; (d) while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action, and (e) the authorised officer should strictly follow the 'Dos and Don'ts' issued by the army.
 
On November 19, 2004, the Central government appointed a five member committee headed by Justice B P Jeevan Reddy to review the provisions of the act in the north eastern states. The committee submitted its report in 2005, which included the following recommendations: (a) AFSPA should
be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967; (b) The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and (c) grievance cells should be set up in each district where the armed forces are deployed.
 
Second ARC in its fifth report on "Public Order," recommended to repeal AFSPA,1958. It commented that its scrapping would remove sentiments of discrimination and alienation among the people of the northeast India. The judicial commission set up by Supreme Court is also trying to make AFSPA more humane, and the security forces more accountable.
 
Human rights group accept that people to people communication and development of new avenues are the only way for peace, however laws like AFSPA are continuously violating human rights issues there.

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