AFSPA - Necessity Or A Misused Power? Everything You Need To Know About The Controversial Act

Violent clashes that took place in wake of Burhan Wani's encounter which claimed 23 lives and the Supreme Court taking cognizance of 1528 cases of alleged fake encounters involving army and police has once again triggered the debate whether Armed Forces (Special Power) Act (AFSPA) implemented in various troubled zones in India is of any help or not.

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Many security experts bat for AFSPA whereas scores of academia, and human right activist, call for its abolition. They argue that since armed forces misuse the provisions to kill people, the immunity given under AFSPA to armed forces personnel should be ended.

Supreme Court in its decision on Friday said that any encounter carried out by armed forces in the garb of AFSPA should be subjected to thorough inquiry.

¡°It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties,¡± a Bench of Justices Madan B. Lokur and U.U. Lalit said in an 85-page judgment.

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But despite a lot of hoopla about AFSPA, many of us don't know much about it.

Why and when was it enacted?

AFSPA was enacted in 1958 to bring under control what the government of India considered disturbed areas. It was first implemented in Manipur and Assam in 195, following the Naga movement. The Central government empowered the governors of the states and administrators of Union Territories to take a call whether the areas of that particular state or union territory is disturbed or not.

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In the case of AFSPA (Manipur and Assam) 1958, the government of India used article 355 of the Constitution to confer power in the hands of governors. "Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as 'disturbed', to enable its armed forces to exercise the special powers".

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Later 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.

How governor declares an area 'disturbed'?

AFSPA's section 3 enables the governor of the state or union territory to issue an official notification in The Gazette of India, after which the centre get the constitutional authority to send armed forces for civilian aid.

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Though it's quite unclear whether governor has to request the Centre to send arm forces or it's Centre's own prerogative. Once declared a 'disturbed' region, an area has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.

State government¡¯s role?

In case of AFSPA, state government is more or less of a toothless tiger. The state government can suggest whether the act should be enforced or not (In Tripura's case), but thanks to section (3) of the Act, its opinion can be overruled by the governor or the Centre.

Where all AFSPA has been implemented?

Apart from northern-eastern states of India where AFSPA has been implemented for over 50 years now, the other states where AFSPA was implemented are Punjab and Jammu & Kashmir.

Punjab

The centre enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act on 6 October 1983, repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983, to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh. The Act was enforced in the whole of Punjab and Chandigarh on 15 October 1983 to counter the Khalistan movement initiated by separatist who were demanding a separate nation for Sikhs.

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It was removed in 1997 after a period of 14 years. But the state government removed its Disturbed Area Act (DAA) only in 2008. Most of us don't even the know that the capital of Punjab and Haryana, Chandigarh was under DAA till 2012 till Punjab and Haryana High Court struck it down in September that year.

Kashmir

Many would be surprised to know that despite militancy finding its feet in Kashmir in late 1970s, till 1990, Kashmir and AFSPA was alien to each other. It has been under AFSPA ever since.

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Though despite having a separate constitution, J&K government could do nothing in 1998 when the then Farooq Abdula government lapsed its DAA but couldn't do much about AFSPA. The Centre argued that despite the state government lapsing its DDA, the state can still be declared 'disturbed' under the section (3) of AFSPA.

What sort of immunity does AFSPA give an officer?

According to AFSPA, an officer can exercise the following powers:

1. After giving due warning, an officer is allowed to open fire or use other kinds of force even if it causes death.

2. Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made or can be made by by the armed volunteers.

3. To arrest anyone without warrant who has committed cognizable offences or is reasonably suspected of having done so.

4. To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.

5. Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.

6. Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under AFSPA.

7. Government's judgment on why an area is found to be disturbed isn't subject to judicial review.

Criticism of APSPA

Be it the ending Irom Sharmila's hunger strike in Manipur or the protesters out on candle marches against AFSPA in capital or anywhere else, AFSPA has been under severe criticism from all quarters of the society for being a draconian law widely misused by the armed forces. Lately, in a landmark decision, the Supreme Court on Friday said that all the encounters carried out by armed forces including police under AFSPA act too should be subjected to inquiry. The decision came after hundreds of Manipur families filled a plea that over the years more 1500 cases of fake encounters have taken place where armed forces have murdered innocent people under the garb of AFSPA. Many human right activists and organisations too have been demanding its removal from north-east as well as Kashmir.