The Armed Forces (Special Powers) Act of 1958 (AFSPA) was adopted by the Indian Parliament 45 years ago as an emergency measure granting special powers to the Indian Armed Forces for use in an area that has been declared ‘disturbed.’ The ASPA was first applied to the Seven Sister States of North East India, including Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, on 1 September, 1958, to stop the North Eastern States seceding from the Indian Union. Later Punjab and Chandigarh also came within the purview of this act, which was later withdrawn in 1997. AFSPA was applied to the state of Jammu and Kashmir in 1990 and has been in force since.
When is an area deemed ‘disturbed’?
The State or Central Government has the right to pronounce an area ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities”.
The Features of AFSPA
- The State or the Central Government have the power to demarcate an area in the Indian Union as ‘disturbed’.
- But under Section (3) of the Act, the opinion of the State Government as to whether or not an area is ‘disturbed’ can be overruled by the governor or the centre.
- Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the centre has the authority to send in armed forces for civilian aid.
- Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.
Powers of AFSPA
According to AFSPA, an officer of the armed forces has the following powers in an area which has been deemed as ‘disturbed’:
- After a warning, he can use any kind of force including fire-power, even if it results in the death of the individual breaking the law or causing any kind of disturbance which is jeopardising public order.
- The power to destroy the fortified positions, hide-outs and dumps of persons deemed to be armed volunteers or armed gangs and wanted for an offence.
- The right to arrest without warrant any person who is suspected of having committed a cognizable offence. Any kind of force may be used if needed during the arrest.
- The authority to enter and search the premises, without a warrant, in order to make arrests, recover any person wrongfully restrained, or to recover any arms, ammunition or explosive substances and seize it.
- The right to stop and search a vehicle or a vessel suspected to be carrying weapons or a person deemed to have broken the law.
- A person taken into custody has to be presented to the officer in charge at the nearest police station at the earliest with a due account of the circumstances leading to the arrest.
- Army officers have legal immunity for their actions.
- The army officer has the power to protect persons acting in good faith under this Act from prosecution, suit or other legal proceedings. Only the Central Government can otherwise intervene.
States under AFSPA
In May, 2015, after an exhaustive review of the law and order situation in Tripura, the AFSPA was finally removed from this state after 18 long years. The following states still fall under the purview of AFSPA:
- Manipur (except the Imphal municipal area)
- Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam)
- Meghalaya (confined to a 20-km belt bordering Assam)
- Jammu and Kashmir.
Flak faced by the Act
The unrestricted power in the hands of the armed forces in a ‘disturbed’ area has received a lot of flak over the years. The fact that an officer can kill, without having to face consequences, does make the act seem draconian. More recently, on 31 March, 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy. The Human Rights Watch has also criticized the act describing it as a tool to abuse, discriminate and oppress. However, when looked at closely, the spate of terrorist activities, especially in the Jammu and Kashmir region, has shown no signs of reduction. Without the AFSPA the Indian Armed Forces would be sitting ducks at the hands of terrorists. The Indian Armed Forces have already lost many fine officers and men at the hands of terrorists. It is only right that they have the shield of the Act to help them stop terrorism without further loss of lives.