Armed Forces Special Powers Act was drafted in the year 1958 and as the title refers provides special powers to the armed forces of the Indian union in areas where the central government may notify as disturbed. Presently the act applies to the north-eastern states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. At the wake of rising insurgencies in the state of Jammu and Kashmir during the 1980s the act was extended and applied in the state full fledged. The history of the original idea behind this act dates back to the colonial period when the British wanted an effective tool to control acts against the British Raj specially the quit India movement. The same model has been applied in this act to control insurgencies and therefore avoid secession of any state from these disturbed areas. Though the human rights violations are the only highlighted issues regarding the act, there has not been much mention on the flip side to the growing cry for the withdrawal of the act such as exposure of the army officials to any acts committed by them being termed as violation of human rights and a legal suit can be initiated and no army unit will work in a condition where there is no legal protection for its personnel and the worst case scenario being a state of anarchy prevailing in these states where the army refuses to fight. So a balance of convenience for both the people in these areas and also the army personnel should be maintained through a less repressive act. Getting into the details of the act, it provides for any army personnel posted in a disturbed area to:
“1."Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law" against "assembly of five or more persons" or possession of deadly weapons.
2. To arrest without a warrant and with the use of "necessary" force anyone who has committed certain offenses or is suspected of having done so
3. To enter and search any premise in order to make such arrests.
4. No legal consequences will be met by these officers who act under the law.
5. For an area to be declared disturbed there must be a deterioration of law and order situation in the area and the governor has the power to request the help of the central government to assist the state in maintaining it. Now the power to determine a disturbed area is also vested with the central government”
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As a result of increasing pressure by the United Nations and protests carried out by local activists the Prime Minister has acknowledged that there are some ‘legitimate grievances’ against the act and assured that it will be surely dealt by the government. Upon this a five member committee headed by former justice Jeevan Reddy was constituted with a mandate of making recommendations to amend the provisions of the act to meet the government’s obligation of preserving human rights or repeal the act and bring in a new act with the above mentioned feature which it acknowledged the present act lacked. The committee did come up with the recommendation to repeal the act but without mentioning any substantial benefits for the people. The government till now have not acted on the recommendations and it was also made clear that it had no intention on replacing or diluting the act since an army unit cannot work under circumstances where its prone to legal action. It is also to be noted that the committee recognized that the act has been viewed as a symbol of repression by the union government. In numerous proceedings the courts have said that just because a statute has been abused by the officials under the act and it does not mean that the act should be repealed based only on that and the same applies to AFSPA. But the central government is slowly moving towards handing over the security issues of these states to locally raised forces. But it is uncertain how repressive will be their own security forces against them when it comes to eradicating cancerous insurgencies in the region.
Article by
Geejo Francis
3rd year student, LLB
School of Law,
Christ University,
Bengaluru
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