ARMED FORCES SPECIAL POWERS ACT (AFSPA) UNDERSTANDING OF AFSPA

What is AFSPA

ARMED FORCES

The President signed the Armed Forces (Special Powers) Bill into law on September 11, 1958, after it was approved by both Houses of Parliament. As THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 (28 of 1958), it was entered into the Statute Book. It came into effect after amending certain acts i.e

  1. The State of Mizoram Act,1986.
  2. The State of Arunachal Pradesh Act, 1986.
  3. The Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972.
  4. The Armed Forces Special Powers (Extension to Union Territory of Tripura) Act, 1970.
  5. The Repealing and Amending Act, 1960.
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WHY IS IT BROUGHT

On May 22, 1958, the President issued an ordinance known as the Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958. According to Section 3 of the Ordinance, the entire or any portion of Assam or the Manipur Union territory, depending on the situation, may be declared a disturbed region by the Governor of Assam and the Chief Commissioner of Manipur. Any Commissioned Officer, Warrant Officer, Non-commissioned Officer, or any other person of comparable rank in the armed services may use the powers granted by sections 4 and 5 of the Ordinance in the disturbed area upon such a declaration being made in the Official Gazette. According to the Gazette of India, the Bill aims to replace the Ordinance.

Currently the act is applicable to the whole of the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. These are the disturbed areas where the Governer of that state or the Administrator of that Union Territory or the Central Government declare the whole or any part of that state to be disturbed areas. THIS IS HOW AFSPA IS IMPLEMENTED.

POWERS GIVEN TO THE ARMED FORCES

Any commissioned officer, warrant officer, non-commissioned officer, or other person of equivalent rank in the armed forces may, in a disturbed area:

  1. If he believes it is necessary to do so for the maintenance of public order, after providing due warning as he may deem necessary, fire upon or otherwise use force, even to cause death, against any person who is acting in violation of any law or order currently in effect in the disturbed area prohibiting the assembly of five or more people, moving people, or carrying weapons.
  2. Demolish any arms dump, prepared or fortified position, or shelter from which armed attacks are made, are likely to be made, or are attempted to be made, as well as any structure that serves as a training camp for armed volunteers, a hideout for armed gangs, or a place of escape for absconders wanted for any offence, if he believes it is necessary to do so.
  3. Anyone who has committed a cognizable offence or against whom there is a reasonable suspicion that they are about to commit one may be arrested without a warrant, and they may use whatever force is required to complete the arrest.
  4. enter and search any property without a warrant to carry out the arrests, recover anyone thought to have been wrongfully detained or confined, or locate any property that is reasonably suspected of being stolen, as well as any weapons, ammunition, or explosive materials thought to have been kept illegally on the property. In the process, they may need to use whatever force is required.

CONTROVERSIES AND DEBATES SURRONDING AFSPA

  1. HUMAN RIGHTS VIOLATION

If security professionals, even non-commissioned officers, believe that using force and shooting someone “even to the causing of death” is necessary for the “maintenance of public order,” they are authorized by law to do so. It gives soldiers the authority to enter buildings, conduct warrantless searches, and make arrests.

The use of these extraordinary powers by the armed forces has frequently given rise to claims of staged encounters and other breaches of human rights by security personnel in unrest-plagued areas, raising concerns about the AFSPA’s indefinite imposition in some states, such J&K and Nagaland.

  1. JEEVAN REDDY COMISSION RECOMMENDATION

The Central government created a five-member committee led by Justice B P Jeevan Reddy in November 2004 to examine the act’s provisions in the northeastern states. The committee’s recommendations are detailed below.

The committee suggested that the Unlawful Activities (Prevention) Act, 1967 be amended to include the necessary provisions and that AFSPA be repealed.

Grievance cells should be established in each area where the armed forces are stationed, and the Unlawful Activities Act should be amended to explicitly define the authority of the armed forces and paramilitary forces.

  1. OTHER PERSPECTIVE
  • The act’s current status quo is no longer an acceptable option because of the multiple instances of human rights violations that have happened over time. In the regions where it has been implemented, the AFSPA has come to represent oppression. Therefore, the government must speak with the impacted parties and assure them that positive action will be taken.
  • Instead of enforcing AFSPA throughout the entire state, the government ought to examine the imposition and repeal of the law on an individual basis and restrict its application to a small number of problematic regions.
  • The guidelines established by the National Human Rights Commission (NHRC), the Jeevan Reddy Commission, and the Supreme Court should also be followed by the government and security agencies.

FURTHER THE CONSTITUTIONALITY OF AFSPA WAS QUESTIONED

In THE CASE OF Naga people’s movement of human rights vs union of India

The Central government may issue a Suo-motu declaration; however, it is preferable that the state government be consulted prior to issuing the declaration; the declaration must have a specific duration and be reviewed on a regular basis after the six-month period has passed; and the authorized officer, in the exercise of the powers granted to him by AFSPA, shall use the least amount of force necessary for effective action.

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