Everything you need to know about AFSPA (The Armed Forces (Special Powers) Act, 1958)

Why in News?

• The central act was first enforced in Tripura on 16 February, 1997 when terrorism was at its peak in the state, which shares an 856-km border with Bangladesh but now withdrawn by Tripura as there is significant taming of terrorism in Tripura
• Situation in past in Tripura
• Members of two separatist groups - National Liberation Front of Tripura (NLFT) and All Tripura Tiger Force (ATTF) -  still sheltered and accused of getting arms training in Bangladesh. These two groups have been demanding secession of Tripura from India.
• Local rights groups, Tribals and political parties in Tripura had described the act as "draconian" and wanted it repealed. 
• Ever since it was enforced in Tripura, the Act, as per its provisions, was reviewed and extended after every 6 months.
• Most prominent evidence of the decline of militancy and separatism in Tripura came when the state recorded over 84% voter turnout in the 2014 Lok Sabha elections, one of the highest voter turnouts in the country, according to Election Commission.
• Tripura government had already started in 2013 to reduce operational areas of the AFSPA to 30 police station areas.

AFSPA History

Image Source: Live Mint/Ashwaq Masoodi

AFSPA Sections  

[Don't be scared of the language here, just FOCUS on the KEYWORDS highlighted in bold :) ]

• 2.Definitions.—In this Act, unless the context otherwise requires,
• (a) "armed forces" : the military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating;
• (b) "disturbed area" : an area which is for the time being declared by notification under Section 3 to be a disturbed area;
• (c) All other words and expressions used herein, but not defined and defined in the Air Force Act, 1950 or the Army Act 1950, shall have the meanings respectively attached to them in those Acts.
• 3. Power to declare areas to be disturbed areas.—
• If, in relation to any State or Union Territory to which this Act extends, the Governor of that State or the Administrator of that Union Territory of the Central Government in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area.
• 4. Special powers of the armed forces.—Any commissioned officer,   warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area :—
• if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, 
• [FIRE] fire upon or otherwise use force; even to the causing of death, against any person who is acting in contravention of any law or
• [ASSEMBLY, WEAPONS]Order for the time being in force in the disturbed area prohibiting the assembly of 5 or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;
• [STRUCTURES] destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made or any structure used as a training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence:
• [ARREST, COGNIZABLE] arrest without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;
• [ENTER, SEARCH] enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained and confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.
• 6. Protection to person acting under Act.—No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

• AFSPA provides unlimited powers to security forces to shoot at sight, arrest anybody without a warrant, and carry out searches without consent
• Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.

Which other states are under AFSPA right now?

1. Besides Tripura, 
2. Assam
3. Nagaland, 
4. Manipur (except the Imphal municipal area), 
1. Manipur's human rights activist Irom Sharmila has been on an indefinite hunger strike for over 15 years, demanding the withdrawal of the act in her home state, Assam, 
5. Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam),
6. Meghalaya (confined to a 20-km belt bordering Assam) and
7. Jammu and Kashmir.

Why is this required?

• Because there is disturbance in some areas - “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities”
• Following above the centre has the authority to send in armed forces for civilian aid. It is still unclear whether the governor has to prompt the centre to send in the army or whether the centre on its own sends in troops.
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What about the state government’s role?

• The state governments, as in Tripura’s case, can suggest whether the Act is required to be enforced or not. But under Section (3) of the Act, their opinion can still be overruled by the governor or the centre.

What about Jammu and Kashmir? There were reports saying that it technically wasn’t a disturbed area after 1998.

• Jammu and Kashmir (as with a lot of things) has a separate legislation for this—its own Disturbed Areas Act (DAA) which came into existence in 1992. Even if the DAA for J&K lapsed in 1998, the government reasoned that the state can still be declared disturbed under Section(3) of AFSPA.
• The Mufti government retorted that the power to declare an area disturbed was “inherent in AFSPA”.
• What is the J&K Disturbed Areas Act?
• The Act was born during Governor’s Rule in 1990 as ‘Governor’s Act No. 12’. In 1992, it was replaced by the J&K Disturbed Areas Act. It was not referred to Parliament’s Consultative Committee on J&K Legislation because of “the urgency of the matter”.
• What did the Disturbed Areas Act say?
• The state government could declare the “whole or any part… of J&K” as a “disturbed area”, in which any magistrate or police officer of the rank of S-I or Head Constable (of Armed Police) or above could “fire upon, or otherwise use force, even to the causing of death, against any person who is indulging in any act which may result in serious breach of public order”.
• J&K Police could destroy any building they thought was being used, or could be used to carry out attacks. The Act made police immune from prosecution without prior sanction from the state government.
• Why did it lapse?
• October 1998, it was allowed to lapse in response to a huge wave of resentment against the misuse of its draconian provisions, especially in Kashmir, where police and armed forces were repeatedly accused of fake encounters, custodial killings and enforced disappearances.
• What is the Armed Forces Special Powers Act?
• In September 1990, Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which was “deemed to have come into force” retrospectively from July 5, 1990.
• When is AFSPA applicable?
• Section 3 of AFSPA (in J&K) says that an area can be declared disturbed if it is the “opinion of the Governor of the state or the central government” which “makes the use of armed forces in aid of the civil power necessary”.
• Does the absence of DAA have an implication for the legality of AFSPA in J&K
• The J&K govt. has two ways to declare an area “disturbed”. It could enact the DAA, or it could issue a notification under Section 3 of AFSPA. To this extent, the Mufti government is right when it says that the lapse of DAA has nothing to do with the promise to “denotify disturbed areas” because the power to declare an area disturbed is “inherent in AFSPA”.
• So what is the debate about?
• What the government isn’t saying is that there isn’t a valid notification under Section 3 of AFSPA declaring any part of J&K as disturbed for more than a decade now. In November 1997, the Supreme Court, while upholding the constitutional validity of AFSPA, said that “Section 3… does not confer an arbitrary or unguided power to declare an area as a ‘disturbed area’, and that “a declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months”.
• In August 2001, the Home Ministry added districts of Jammu (besides those in the Valley) to the list of disturbed areas.

Is Tripura then the first state to completely do away with AFSPA?

• No. It was applied in Punjab and Chandigarh in 1983 due to secessionist movements and lasted until 1997. 
• Punjab government withdrew its DAA in 2008, it continued in chandigarh till September 2012 when the Punjab and Haryana high court struck it down following a petition filed by a local member of the Janata Dal (United).

Examples of excesses:

• BS Killing in Ramban 2013
• Hegde Committe
• Manipur killing investigation - appointed by SC - exposed how law failed in tackling insurgency 
• India army used force in disproportionate ratio - & also by Manipur police 
• Led to death of person with no criminal antecedents 
• 5 out of 6 incidents looked fabricated 
• State Police and Assam rifles have not been given AFSPA power but they also used it
• Assam rifles and local police conducted the operation in non notified areas outside AFSPA realm 
• The Justice Verma Commission has said in unequivocal terms that security persons who rape women should be judged under the same act that applies to the civilians.
• In 2005 the Jeevan Reddy Commission said that AFSPA should be repealed and the clauses that are required should be included in other Acts. 
• It was appointed to inquire into the alleged rape and murder of 30-year old Manorama Devi of Imphal in Manipur arrested by the Assam Rifles suggested that the law should be repealed and the clauses that are required should be integrated with other All India laws. Government did not even publish the report.
• Mr R. N. Ravi, former head of the Intelligence Bureau for the North East is on record that AFSPA is the biggest obstacle to peace in the region. 
• Former Home Secretary Mr G. K. Pillai has come out openly against the Act. 
• These statements come from persons who have worked in the system and know the dynamics of the Act and of running the Government.

Issues

• “Who rules India: The elected representatives or the army?” 
• “Why does the army oppose even dilution of the Act to make it more human?” 
• What is their rationale for thinking that security persons who rape innocent women should enjoy impunity in the name of national security? 
• For whose security was the law enacted, for that of the country or of the criminals in uniform? 

• The law operates in and through its own suspension, and legitimacy always trumps disproportional use of lethal force. 

• AFSPA violates Articles 21 and 22 of the Constitution that guarantee the protection of life and personal liberty and protection against arbitrary arrest and detention. What exactly does equality before law mean, when individual citizens of the same Republic are subject to different laws and rights?

• Very few cases of trial leave alone of punishment. 

• No action has been taken in the Manorama Devi case. 
• Thangjam Manorama (1970–2004) was a Manipuri woman who on July 10, 2004, was picked up from her home by the Indian paramilitary unit, 17th Assam Rifles on uncertain allegations of being associated with People's Liberation Army. The next morning, her bullet-ridden corpse was found in a field. An autopsy revealed semen marks on her skirt suggesting rape and murder
• On December 23, 2005 a group of university students entered a railway compartment at Kokrajhar in Assam, not knowing that armed security persons from Haryana were travelling in it. The jawans closed the doors of the compartment and tried to molest the students. Alerted by their shouts the Bodo student union stopped the train and tried to take action on the jawans. The police opened fire on them and four students died. No action has been taken till today.
• One can question AFSPA even from the security point of view. It was enacted in 1958 on an experimental basis for six months as a measure against “terrorist” groups in the North East. It was applied first in Nagaland, in 1980 in Manipur, later in Jammu and Kashmir and over the decades in more areas of the North East. 
• number of terrorist groups
• 1958 - 1
• Manipur - 2 groups when the State was brought under the Act. 
• Today, Manipur has more than twenty such groups, Assam has not less than fifteen, Meghalaya has five of them and other States have more groups. 
• How does the army explain this proliferation of militant groups in spite of the Act? Has it served its purpose?

Conclusion

• Civilians have been elected to rule the country. They have a duty to ensure that the security forces work under the Constitution. 
• The problems in the North East and in Kashmir should be solved through a political process and not through a law that violates people’s right to life and dignity with impunity. 
• They need confidence building measures (CBM) in order to move towards peace with justice. What better CBM can one suggest than repealing the AFSPA?