DH Deciphers | AFSPA: Why is it controversial and why hasn't it been repealed yet?

Human rights organisations have alleged that the sweeping powers AFSPA gives the armed forces have resulted in a culture of impunity
nirban Bhaumik
Last Updated : 08 December 2021, 06:30 IST
Last Updated : 08 December 2021, 06:30 IST
Last Updated : 08 December 2021, 06:30 IST
Last Updated : 08 December 2021, 06:30 IST

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The killing of 13 civilians by the security forces in Nagaland on December 4 has reignited the debate about the Armed Forces Special Powers Act and renewed the demand for repealing it. Although the union government has regretted the killings and called them "a case of mistaken identity", critics say it's time to withdraw the sweeping powers that the armed forces have under this "draconian" law. Here's a closer look at how the AFSPA came about, its controversial provisions and why the government hasn't repealed it yet:

What is the AFSPA?

The AFSPA or the Armed Forces Special Powers Act was enacted on September 11,1958 to help the armed forces contain insurgencies in the Naga Hills of the then undivided state of Assam as well as in the union territory of Manipur. It replaced the Armed Forces (Assam and Manipur) Special Powers Ordinance promulgated on May 22, 1958. It was modelled on the Indian Armed Forces (Special Powers) Ordinance, which had been promulgated in 1942 to quell the Quit India movement launched by Mahatma Gandhi in 1942, demanding the end of colonial rule in the country. The territorial scope of the AFSPA was subsequently extended to the other north-eastern states. It was later withdrawn from some of the states. It is at present not in force in Tripura and Meghalaya. It has also been withdrawn from Imphal Municipal Area of Manipur. It remains in force across Assam as well as in three districts – Tirap, Changlang and Longding – and two police station areas in Namsai district of Arunachal Pradesh.

An almost identical law – Armed Forces (Jammu and Kashmir) Special Powers Act – was enacted in September 1990, especially for Jammu and Kashmir.The Armed Forces (Punjab and Chandigarh) Special Powers Act was enacted for Punjab and Chandigarh in 1983 to deal with the separatist movement by the Khalistanis. It was withdrawn in 1997.

What special powers does the AFSPA give the armed forces?

Section 3 of the AFSPA empowers the Governor of a State or the Administrator of a Union Territory or the Central Government to declare the State or the Union Territory fully or partially a disturbed area.

The Section 4 of the Act gives sweeping powers to any Commissioned Officer, Warrant Officer, Non-Commissioned Officer or any other person of equivalent rank in the armed forces deployed in a disturbed area to fire upon or otherwise use force against any person violating law, even to the extent of causing death, if she or he (the officer) think it is necessary to do so for maintenance of public order. The officer of the armed force can also prohibit assembly of five or more persons or carrying of weapons. She or he can arrest, without warrant, any person, who has committed a cognizable offence or against whom a reasonable suspicion exists that she or he has committed or is about to commit a cognizable offence. The officers of the armed forces can also enter and search without warrant any premises to make any such arrest.

How does the AFSPA shield the officers of the armed force?

The Section 6 of the AFSPA 1958 and Section 7 of the AF (J&K) SPA 1990 shield the personnel of the armed forces against prosecution, lawsuit or any other legal proceeding in respect of anything done or purported to be done in exercise of the powers conferred by the Act, except with prior sanction of the Central Government.

Why do the human rights activists demand repeal of the AFSPA?

The activists and national and international human rights organizations have been demanding repeal of the AFSPA, alleging that the sweeping powers it gives the armed forces have resulted in a culture of impunity both in the north-eastern states as well as in J&K,where the security personnel accused of arbitrary detention and torture as well as extrajudicial executions and fake encounters can hardly be brought to justice as the Central Government very rarely gives nod to prosecute them. The Extra-Judicial Execution Victim Families Association of Manipur documented as many as 1528 alleged extrajudicial executions by the armed forces in the tiny north-eastern state between 1978 and 2010. Amnesty International stated that the law facilitated grave human rights violations. Human Rights Watch stated that Section 4 of the AFSPA violated the right to life and right to liberty and security while Section 6 of the AFSPA 1958 and Section 7 of the AF(J&K)SPA 1990 violated a person's right to remedy. The United Nations High Commission for Human Rights repeatedly called upon the Government of India to repeal the law. Irom Chanu Sharmila brought the alleged abuse of the law under international attention with her 16-year-long “hunger-strike” from 2000 to 2016. There have been a series of agitations by people in Manipur as well as other north-eastern states, demanding scrapping of the AFSPA.

What is the position of the armed forces and the Government of India on the AFSPA?

The Government of India in November 2004 appointed a five-member commission headed by Justice B P Jeevan Reddy to review the AFSPA in the northeastern states. The panel in June 2005 recommended that the AFSPA, which was a “symbol of hate, oppression and instrument of high handedness”, should be repealed. Another panel appointed by the Supreme Court and headed by Justice Santosh Hegde also concluded that the law had been misused by the armed forces. The Justice J S Verma Committee, which was constituted after the Nirbhaya gang-rape case in Delhi in December 2012 to review laws against sexual assault, also recommended review of the AFSPA.

The armed forces argue that its personnel do need the protection of the AFSPA to deal with insurgency in the conflict zones. The Government of India has been turning down demands for repealing the law, citing the argument of the armed forces that the security personnel deployed in counter insurgency operations would be demoralised by a flurry of fake allegations and lawsuits if the law is repealed.

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Published 07 December 2021, 20:15 IST

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