Armed Forces (Special Power) Act(AFSPA)
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Armed Forces (Special Power) Act(AFSPA)

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Armed Forces (Special Power) Act (AFSPA)

Why in the news?

The Centre announced that it revoked the Armed Forces (Special Powers) Act (AFSPA) from Meghalaya effective from April 1, 2018.

Introduction

Armed Forces Special Powers Act (AFSPA), 1958 is an act that grants special powers to the Indian Armed Forces to maintain public order in “disturbed areas”.

What is a “disturbed area” and who has the power to declare it?

A disturbed area is one that is declared by notification under Section 3 of the AFSPA.

An area can be disturbed due to differences or disputes between members of different religious, racial, language, or regional groups or castes or communities.

The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments

The Central Government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.

A suitable notification would have to be made in the Official Gazette. As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.

Origin Of AFSPA

The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. 

The act was enacted to put a check on the increasing violence in the Northeastern States at that time, which the State governments found difficult to control. 

Which States are or had come under this Act?

It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal), and parts of Arunachal Pradesh. 

The Centre revoked it in Meghalaya on April 1, 2018. Tripura withdrew the AFSPA in 2015. In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations.

Special Powers under the Act

Any commissioned officer, warrant officer, non-commissioned officer, or any other person of equivalent rank in the armed forces may

1. Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five 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, after giving such due warning as he may consider necessary for the maintenance of public order.

2. 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 utilized as a hide-out by armed gangs or absconders wanted for any offense.

3. Arrest, without a 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 and may use such force as may be necessary to effect the arrest.

4. 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 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.

5. No prosecution, suit, or other legal proceedings 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.

Arguments in favor and against the Act

Favor:

Based on the special powers, the border of the country is protected and peace is prevailing in the region.

In the absence of this act, it would have been very difficult for the armed forces to tackle the insurgency in the region.

Against:

There have been allegations of abuse of power, fake encounters, sexual exploitation of women, a gross violation of human rights in the region.

Intellectuals argue that peace can not be brought at gunpoint. Even after 60 years of implementation, it has shown no significant result. Hence the Govt. should find an alternative to the Act. Rather it is helping the insurgent groups to incite the issue.

Manipur’s Irom Sharmila, popularly known as “Iron Lady” has gone on hunger strike many times for revocation of the act in the region.

Why has the Act become So Controversial::

 The Act has drawn criticism from the Human rights Organisations that the armed forces have misused their powers to carry out extrajudicial killings in the northeast and Jammu and Kashmir. There has been constant demand to repeal the law that has been described as “DRACONIAN”.

ARMY’s stand on AFSPA::

The ARMY has maintained that the Act is essential for them to operate in difficult conditions.

The ARMY is not even in favor of diluting the Act as according to them it will hinder the soldiers to operate effectively.

Conclusion

Whereas the prevailing situation is compelling for the central Govt. to keep the Act in force, there have been signs of improvement in the situation like revocation of AFSPA from Manipur and Meghalaya, and in AP the area has been reduced.

The administration has to strike the right balance between Law and order situation and protection of a human right, culture, and unique identity of the people in the region.

Supreme Court’s judgment should be followed in letter and spirit –

Every death caused by the armed forces in a disturbed area, be it of a common person or a criminal, should be thoroughly enquired into.

Even if the inquiry finds the victim an enemy, a probe should look into whether excessive or retaliatory force was used.

No concept of absolute immunity for Army personnel who commits a crime.