Following the death of 14 civilians in Nagaland on 4 December 2021 because of the armed forces’ actions, the accountability of the armed forces is once again under a question mark.
The debate again arose on the question that under the Armed Forces Special Power Act (AFSPA), do the armed forces have total immunity for any actions they take?
In this article, let us check out the provisions, pros, cons, debate around the Armed Forces Special Power Act and why some people of northeast India want to repeal it.
What Is AFSPA?
The Armed Forces Special Power Act was passed in the wake of the riots after partition in 1947. The President promulgated four ordinances to control riots in Bengal, Assam, East Punjab, Delhi and United Provinces. In 1957, the Government repelled these ordinances. Then, Parliament passed a new Act, especially for Assam and Manipur, known as the Armed Forces Special Powers Act, 1958, to combat the insurgency in the northeastern states.
Today, the Armed Forces Special Power Act is currently in force in:
- In three districts of Arunachal Pradesh, and
- The jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
Armed Forces (Special Powers) Act, 1958
The Act grants “special power” to the armed forces, and it applies to the Army, the Air Force, the Central Paramilitary forces, etc., in disturbed areas.
What Is Disturbed Area?
According to section 2 of AFSPA, it is an area that is declared as a disturbed area by notification under section 3 of AFSPA for the time being. Whereas section 3 talks about the power to declare any area as a disturbed area. The law says, “The Governor of a State, the Administrator of the Union Territory, or the Central Government may designate a part or the entire area as a disturbed area if the conditions in such areas are so dangerous or disturbed that use of armed forces is necessary.”
What Happens if Any Area Is Declared a Disturbed Area?
Section 4 of AFSPA grants some special powers to the armed forces in a disturbed area, such as:
1. If prohibitory orders prohibiting assembly of five or more persons or carrying arms or weapons are in force in the disturbed area, the police have the power to use force, including opening fire even to the point of causing death.
2. To destroy any structure used as a hideout, a training camp, or a launching point for attacks.
3. To enter and search premises without a warrant of arrest to recover hostages, arms, and ammunition.
4. Power to arrest without warrant and to use force for the purpose.
5. Further, section 6 of the AFSPA gives immunity to the armed forces for their actions under section 4. Section 6 reads that “No person can be prosecuted or subjected to any legal proceedings for action taken under the Act without the Central Government’s previous sanction.”
Why the Demand to Repeal AFSPA?
1. Many Human Rights Organisations argue that the Act encourages impunity and causes many instances of excesses and atrocities committed by the armed forces under its protective cover.
2. The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions also called for the repeal of AFSPA. The report noted that “AFSPA allows the state to override rights. We should oppose such legislation since it has no place in a democracy.”
3. In 2000, Manipur activist Irom Chanu Sharmila or the “Iron Lady of Manipur”, went on an indefinite fast to demand the repeal of AFSPA, becoming an iconic figure in the struggle against the law. She ended it only in August 2016.
4. The United Nations Human Rights Commission states that force must be justified by self-defence or by a minimum level of proportionality. In contrast, AFSPA gave vast power to the armed forces.
5. Former Union Home Minister GB Panth said that “the AFSPA is subject to the Code of Criminal Procedure, and the motive in CrPC is the use of minimal force, but AFSPA deviates from it.”
6. The Justice Verma Committee (2012) recommended that members of the armed forces should be subject to ordinary criminal law for sexual assault on women and urged for a review of the continuation of AFSPA immediately.
7. In 2005, the Government appointed a committee of five members, headed by retired Supreme Court judge P Jeevan Reddy, who recommended the repeal of AFSPA. There was a suggestion to amend the Unlawful Activities (Prevention) Act, 1967, to deal with such situations of insurgency and terrorism.
8. The AFSPA created a negative impression among the people of the northeast states.
9. According to The Times of India, between 2012 and 2016, a total of 186 complaints of human rights abuses by defence personnel were recorded in states where the Armed Forces (Special Powers) Act, 1958, is in force.
Government’s Point of View for AFSPA
1. The Indian army is fighting a proxy war. Therefore, the Armed Forces (Special Powers) Act enables the security forces to fight both external and externally backed forces, both of which pose a threat not only to the states but also to the entire country.
2. AFSPA offers both legal protections and operational power for the security of men and material.
3. Pakistan has trained, willing, and available terrorist cadres that may boost terrorist violence in the coming years. Thus, AFSPA is crucial to carry out operations in the borders areas.
Constitutionality of AFSPA
In Naga People’s Movement of Human Rights vs Union of India, AIR 1997 SC, the Petitioner challenged the constitutionality of the Armed Forces (Special Powers) Act in the Supreme Court. The petitioners had argued that:
- Parliament could not legislate on state subjects, i.e., maintaining public order.
- Since AFSPA was a “measure intended to achieve the same result as under Article 352 of the Constitution”, it was illegal.
- This law was arbitrary and conferred vast powers on armed forces.
A five-judge Constitution Bench unanimously upheld the law. The court said that:
- Although the Constitution allows the deployment of armed forces to aid civil power, such deployment is only for a “temporary period” or “until a situation of normalcy has returned.”
- The state government’s opinion must be taken into account when declaring a region a “disturbed area.”
- Under the AFSPA, the officer may not use excessive force against the person violating the prohibitory order.
In Extra Judicial Execution Victim Families Association vs Union of India AIR 2016 SC, a bench of Justices Madan Lokur and UU Lalit observed that:
“Even if army personnel commit an offence, they will not be immune from prosecution by a criminal court constituted under the CrPC. In a constitutional democracy such as ours, outright acceptance of the proposition advanced is equally unsettling and demoralizing, especially as we live under the shadow of weapons that can be used with impunity.”
The court further noted that:
“Killing an ‘enemy’ is not the only available solution, and that is what the Geneva Conventions and the principles of international humanitarian law tell us.”
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