Decoding Armed Forces Special Powers Act

The origins of the Armed Forces (Special Powers) Act, 1958 can be traced back to the Armed Forces (Special Powers) Act of 1948. The latter was enacted to replace four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance—invoked by the central government to deal with the internal security situation in the country in 1947.

Incidentally, the Armed Forces (Special Powers) Act of 1948 was repealed in 1957, only to be resurrected a year later in 1958. The context was the fast deteriorating internal security situation in the ‘unified Assam’. The Nagas, who inhabited the Naga Hills of Assam and Manipur, had opposed the merger of their area with that of India on the grounds that they were racially and socio-politically different from the Indians.

They had even voted in favor of a referendum declaring independence in 1951 and raised the banner of revolt. They boycotted the first general election of 1952, thereby demonstrating their non-acceptance of the Indian Constitution and started committing violent acts against the Indian state.

In order to deal with this rebellion, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels. When the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, in order to provide a legal framework for the paramilitary forces as well as the armed state police to combat insurgency in the region.

But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government—the Federal Government of Nagaland—on March22, 1956. This intensified the widespread violence in the Naga Hills.

The state administration found itself incapable of handling the situation and asked for central assistance. Responding to the appeal of the state government, the central government sent the army to quell the rebellion and restore normalcy in the region.

The President of India promulgated the Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22, 1958 to confer ‘special powers’ on the armed forces as well as provide them the legal framework to function in the ‘disturbed areas’ of Assam and the Union Territory of Manipur.

A bill seeking to replace the ordinance was introduced in the monsoon session of the Parliament on August 18, 1958. The bill received the President’s assent on September 11, 1958 and was printed in the Statute Book as The Armed Forces (Special Powers) Act, 1958.

AFSPA is an act empowering armed forces to deal effectively in “disturbed areas”. Any area which is declared “disturbed” enables armed forces to resort to the provisions of AFSPA.

Who declares an area as disturbed?
The choice of declaring an area as “disturbed” vests both with state and central government.

Special Powers provided to armed forces:
After an area comes under the ambit of AFSPA, any commissioned officer, warrant officer, non-commissioned officer or another person of equivalent rank can use force for a variety of reasons while still being immune to the prosecution.

Govt can declare AFSPA in following conditions:

• When the local administration fails to deal with local issues and the police proves inefficient to cope with them.
• When the scale of unrest or instability in the state is too large for the police to handle.

Legal Provisions of AFSPA
In an area declared, “disturbed” an army officer is legally free to carryout following operations:

• Fire upon or otherwise force, even to the point of causing death of any person disregarding orders against unlawful assembly.
• Arrest without a warrant.
• Enter and search any premises.
• Destroy any arms dumps.
• Stop, search and seize any vehicle.

The Act also provides legal immunity to military personnel for their actions. Their prosecution cannot be initiated without the prior permission of the central government.

Enacted first in August 1958 in the Northeast territories of Assam and Manipur, the Act was subsequently extended to each of the seven new states of Northeast (Assam, Manipur, Nagaland, Tripura, Meghalaya, Mizoram and Arunachal Pradesh).

Similar laws were also applied in the state of Punjab from 1985 to 1994. A version of the Act has been in force in the state of Jammu and Kashmir since 1990.

The validity of AFSPA was challenged before the Supreme Court in the case of the Naga People’s Movement of Human Rights vs. Union of India.

The five judge bench concluded that the above Act cannot be regarded as a colorable legislation or a fraud on the Constitution and the powers conferred under Sections 4 and 5 of the Act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.

Why do armed forces need AFSPA?
The forces are aware that they cannot afford to fail when called upon to safeguard the country’s Integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilization of combat capability.

This includes safeguards from legal harassment and empowerment of its officers to decide on employment of the minimum force that they consider essential.

The absence of such legal statue would adversely affect organisational flexibility and its utilisation of the security capacity of the state. This would render the security forces incapable of fulfilling their assigned role.

Criticism
Common people see it as “Right to Kill” act. Since its inception many human rights organisations and civil societies have been opposing it for the following reasons:

• It makes no distinction between a peaceful gathering of five or more people and a berserk mob.
• The law also states that no prosecution can be initated against an officer without the previous sanction of the central government.
• The decision of the government to decide a particular area ‘disturbed’ cannot be challenged in a court of law.

AFSPA and Emergency
In many ways, AFSPA is even worse than an emergency law that at least protects right to life, can be declared for a short period of time, and the President’s emergency order has to be reviewed by the parliament. AFSPA can be in place indefinitely and requires no legislative approval.

By: Vittal Reddy
The writer is an IAS mentor