Armed Forces Special Powers Act 1958

The Armed Forces Special Powers Act (AFSPA) is an act empowering armed forces to deal effectively in disturbed areas. Any area which is declared "disturbed" under disturbed areas act enables armed forces to resort to the provisions of AFSPA. The choice of declaring any area as ‘disturbed’ vests both with state and central government. 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. The act was passed on 11 September 1958 by the parliament of India to provide special legal security to the armed forces carrying out operations in the troubled areas of Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland, Tripura.(seven sisters).However, in 1990 the act was extended to the state of Jammu and Kashmir to confront the rising insurgency in the area. In Manipur, despite opposition from the Central government, state government withdrew the Act in some parts in Aug, 2004. 

Any state govt. can declare the state of emergency and introduce AFSPA in the following conditions:- 

a) When the local administration fails to deal with local issues and the police proves inefficient to cope with them. 

b) When the scale of unrest or instability in the state is too large for the police to handle. 

Section 4 of the act sets out the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer, only a jawan (private) does not have these powers. The Section allows the armed forces personnel to use force for a variety of reasons. 

The army can shoot to kill, under the powers of section 4(a), for the commission or suspicion of the commission of the following offenses: 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, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. To justify the invocation of this provision, the officer need only be "of the opinion that it is necessary to do so for the maintenance of public order" and only give "such due warning as he may consider necessary". 

The army can destroy property under section 4(b) if it is an arms dump, a fortified position or shelter from where armed attacks are made or are suspected of being made, if the structure is used as a training camp, or as a hide-out by armed gangs or absconders. 

The army can arrest anyone without a warrant under section 4(c) who has committed, is suspected of having committed or of being about to commit, a cognisable offense and use any amount of force "necessary to effect the arrest". 

Under section 4(d), the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search. 

Section 5 states that after the military have arrested someone under the AFSPA, they must hand that person over to the nearest police station with the "least possible delay". There is no definition in the act of what constitutes the least possible delay.

Some case-law has established that 4 to 5 days is too long. But since this provision has been interpreted as depending on the specifics circumstances of each case, there is no precise amount of time after which the section is violated. The holding of the arrested person, without review by a magistrate, constitutes arbitrary detention. 

Section 6 establishes that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government. This section leaves the victims of the armed forces abuses without a remedy. 

Drawbacks: 

The large scale violations of fundamental rights in the north eastern states is a direct consequence of the provisions of the AFSPA, of areas declared as Disturbed Areas under Section No. 3 and the simultaneous acquiring of wide powers by army personnel under Section 4 of the Act.

The AFSPA, which grants armed forces personnel the power to shoot to arrest, search, seize and even shoot to kill, violates the Right to Life enshrined in Article 21 of the Constitution of India which guarantees the right to life to all people.

The AFSPA also violates the International Covenant on Civil and Political Rights (ICCPR). India signed the ICCPR in 1978, taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens. In particular, the Act is in contravention of Article 6 of the ICCPR guaranteeing the right to life.

AFSPA makes no distinction between a peaceful gathering of five or more people and a berserk mob. So, even innocents – who have no role in creating a situation that results in that region being called ‘disturbed’, also come under the purview of the law. The decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. 

At the same time, the AFSPA is an emergency legislation that constitutionally requires to be reviewed every 6 months. Yet it has been imposed in Manipur and other states of the north east for years on end, which contributes to the misuse of unbridled and arbitrary powers by the armed forces.

On November 19, 2004, the Central government appointed a five member committee headed by Justice B.P Jeevan Reddy to review the provisions of the act in the north eastern states.

The committee submitted its report in 2005, which included the following recommendations:

(a) AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967;

(b) The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and

(c) Grievance cells should be set up in each district where the armed forces are deployed.

The 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA. These recommendations have not been implemented.