POLITY & GOVERNANCE
The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act (AFSPA), 1958
It gives powers to the army, state and central police forces to shoot to kill, search houses and destroy any property that is “likely” to be used by insurgents in areas declared as “disturbed” by the home ministry.
AFSPA is invoked when a case of militancy or insurgency takes place and the territorial integrity of India is at risk.
Security forces can “arrest a person without a warrant”, who has committed or is even “about to commit a cognizable offence” even based on “reasonable suspicion”.It also provides security forces with legal immunity for their actions in disturbed areas.
While the armed forces and the government justify its need in order to combat militancy and insurgency, critics have pointed out cases of possible human rights violations linked to the act.
The AFSPA was first enacted as an ordinance in the backdrop of the Quit India Movement launched by Mahatma Gandhi in 1942.
A day after its launch on August 8, 1942, the movement became leaderless and turned violent in many places across the country. Leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel and a host of others had been put behind the bars.
The Armed Forces (Assam and Manipur) Special Powers Act, 1958:
1951: There was a boycott of the first general election of 1952 by the Naga National Council, which later extended to a boycott of government schools and officials.
To deal with the situation, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels.
As the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, providing a legal framework for the paramilitary forces and the armed state police to combat insurgency in the region. But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government “The Federal Government of Nagaland” on 23 March 1956.
The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by President Dr. Rajendra Prasad on 22 May 1958. It was replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958 on 11 September 1958.
Later the territorial scope of the act also expanded to the seven states of the North-East – and the words “The Armed Forces (Assam and Manipur) Special Powers Act, 1958” were substituted by “Armed Forces (Special Powers) Act, 1958”, getting the acronym of AFSPA, 1958.
The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983:
The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act on 6 October 1983, to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh during the militancy days.
The act was withdrawn in 1997, roughly 14 years after it came to force. Punjab was the first from where the act was repealed.
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990:
The act was enacted in Jammu and Kashmir due to extreme security instability in the area where it remains in force.
Supreme Court verdict, 1998:
In the case of Naga People’s Movement of Human Rights vs. Union of India, the validity of AFSPA was challenged before the Supreme Court and the five-judge bench concluded that the act cannot be considered as a violation of the Constitution and the powers conferred under the section 4 and 5 of the act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.
The Jeevan Reddy Committee:
On November 19, 2004, the Central government appointed a five-member committee headed by Justice BP Jeevan Reddy to review the provisions of the act in the northeastern states.
The Committee had recommended a complete repeal of the law. “The Act is a symbol of hate, oppression, and an instrument of high-handedness,” it said.
The committee submitted its report in 2005, which included the following recommendations:
AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967
The Unlawful Activities Act should be modified to specify the powers of the armed forces and paramilitary forces
Grievance cells should be set up in each district where the armed forces are deployed.
The 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA.
In 2016, the Supreme Court concerning internal security had ruled that the armed forces cannot escape investigation for excesses committed in the discharge of their duties even in ‘disturbed areas’. In other words, legal protection offered by the AFSPA cannot be absolute.
The AFSPA was repealed in Tripura in 2015, and the Centre also removed Meghalaya from the list, while also restricting its use in Arunachal Pradesh in 2018.