The Armed Forces (Special Powers) Act was enacted in 1958 to bring under control what the government of India considered ‘disturbed’ areas.
How could a region be declared as ‘disturbed’?
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 Power 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-
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Arrested Persons to be made over to the Police
Any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.
Protection to Persons acting under Act
No, persecution, suit or another 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.
Need for AFSPA
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.
Criticisms of AFSPA
- In the AFSPA controlled areas, human rights are being violated both by state and nonstate actors.
- Counter- terrorism operations undertaken in goodfaith, at times, lead to collateral damage.
- Several high committee recommendations for repealing AFSPA have been rejected. Justice Jeevan Committee and Administrative Reforms Committee recommended that the Act should be scrapped.
- Section 4(a) of the AFSPA grants armed personnel to shoot and kill, is clearly violating article 21 of our Constitution.
- Section 6 of the AFSPA provides then with absolute immunity for all atrocities committed under the AFSPA. The armed forces personnel conduct themselves as being above the Law.
- No prosecution, suit or another legal proceeding shall be instituted except with the previous sanction of the Central government against any person.
- There is alack of clarity as to what constitutes a “disturbed area” and the rather arbitrary anner in which AFSPA is being imposed in the country.
- Some of the critics of AFSPA are of the view that despite being in force for several decades this act has been unsuccessful to quell insurgency completely.
- AFSPA act may contain different sections as applicable to the situation in each state. Hence there is no uniformity in the provisions.