AFSPA

• The Armed Forces (Special Powers) Act was enacted in 1958 to bring under control what the government of India considered ‘disturbed’ areas.
• The AFSPA offers powers to the Army and Central forces deployed in “disturbed areas” to kill anyone acting in contravention of law, arrest and search any premises without a warrant.
• AFSPA provides cover to forces from prosecution and legal suits without the Centre’s sanction.
• It is effective in the whole of Nagaland, Assam, Manipur (excluding the seven Assembly constituencies of Imphal).
• In Arunachal Pradesh, it is in force in 16 police stations and in Tirap, Longding and Changlang districts bordering Assam.
• Tripura withdrew AFSPA in 2015.
• It is not in force in Meghalaya (except 20 kilometre area along Assam border) and Mizoram.

Background

• Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the center has the authority to send in armed forces for civilian aid.
• 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.

Special Powers credited to 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-

• In necessity for the maintenance of Public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law.
• If he is of opinion that it is necessary so to do, 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.
• Arrest, without warrant, any person who has committed a cognizable offense or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offense.
• Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined.

Why was it forced?

• The AFSPA is applied to an area only when the ordinary laws of the land are found to be inadequate to deal with the extraordinary situation perpetrated by insurgents spreading terror.
• It is applied when the induction of the army becomes imperative to battle the terrorists and maintain the territorial integrity of the Country.
• The annulment of the law and the resultant lack of security cover would adversely affect the governance and development capacities in the insurgency affected states
• It would motivate the insurgent leadership, field cadres, and their over ground supporters to engage in reckless damage to public life and property.
• It would dilute the capacity of an important Instrument of the state – the armed forces – to tackle the security challenges faced by the country. The absence of such a legal status would adversely affect the organizational flexibility of the security of the state.
• Army circles are worried that soldiers and officers will be dragged to civilian courts and that frivolous cases will be filed against them.
• The battle against terrorism cannot be equated with normal law and order problem and therefore AFSPA has been taken as a solution.

Where all is it implemented?

North-Eastern States

• AFSPA was first implemented in Manipur and Assam in 195, following the Naga movement.
• The Central government permitted 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.
• 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.
• Later The Armed Forces (Assam and Manipur) Special Powers Act, 1958″ were switched by “Armed Forces (Special Powers) Act, 1958”, getting the acronym of AFSPA, 1958.

Kashmir

• AFSPA set its feet in Kashmir in late 1970s, till 1990, Kashmir and AFSPA was alien to each other. It has been under AFSPA ever since.
• Though despite having a separate constitution, J&K government could do nothing in 1998 when the then Farooq Abdula government lapsed its Disturbed Areas Act (DAA) 1997, but couldn’t do much about AFSPA.
• The Centre maintained that despite the state government lapsing its DDA, the state can still be declared ‘disturbed’ under the section (3) of AFSPA.

Punjab

• The Centre ordained 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 empower the central armed forces to function in the state of Punjab and the union territory of Chandigarh.
• The Act was imposed in the whole of Punjab and Chandigarh on 15 October 1983 to counter the Khalistan movement instigated by separatist who were demanding a separate nation for Sikhs.
• It was removed in 1997 after a period of 14 years.
• Although, the state government removed its Disturbed Area Act (DAA) only in 2008.

Chandigarh was under DAA till 2012 till Punjab and Haryana High Court smashed it down in September that year.