The Armed Forces Special Powers Act was enacted in 1958, providing legal impunity to the Indian Armed Forces in the areas declared as ‘disturbed’. Being a subject of intense debate, AFSPA has always come under the scrutiny by human rights activists calling it a threat to the very people it is meant to protect. They argue that the misuse of this law leads to scores of fake encounters thus taking away the lives of civilians in a conflict-ridden area.
Though The Armed Forces Special Powers Act has colonial roots, it was invoked in the Indian Penal Code in 1958 because of the increasing violence in the north-eastern states. AFSPA is not uniform in nature and has been amended over the years. It is present in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal), parts of Arunachal Pradesh and the Kashmir Valley. The Central government revoked it from Meghalaya and Tripura in the year 2015 and 2018 respectively.
Defining it simply, AFSPA provides authority to the armed forces to prohibit a gathering of five or more persons in an area, and shoot or use force if they feel a person is violating the law. If any kind of suspicion is felt, the army can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of any kind of weapon. When there are differences between the communities on the basis of race, religion, language, region and caste leading to some anarchic situation then the state or central government is entitled to declare that area as a “disturbed area”. The power to declare a state or territory “disturbed” initially lied with the state government, but was transferred to the Centre in 1972. According to Section 3 of AFSPA, an area can be declared disturbed if it is the “opinion of the Governor of the state or the central government” which “makes the use of armed forces in aid of the civil power necessary”.
Over the years, the act has received a lot of flak with human rights groups describing it as draconian and aggressive. Irom Sharmila also known as the Iron Lady of Manipur, has been the staunchest opponent of this law and went on a hunger strike from November 2000 to August 2016. The UN Commissioner for Human Rights, in 2009, also asked India to do away with the law calling it a “dated and colonial-era law” that breaches contemporary international human rights standards. It has also been questioned over its existence in the state of Jammu & Kashmir where encounters of civilians under the impunity of this law has come into light. In a landmark judgement in 2016, the Supreme Court of India stated “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both… This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.”
Many security personnels bat for this stating that the Armed Forces are required to operate in difficult areas where the insurgents have established their training camps and support bases. Working in such hostile environments requires them some kind of legal protection that AFSPA does. However, some of them believe that some changes need to be made in the current law because of its infamous draconian nature.
In the words of Lt. General DS Hooda, “It is perhaps time for the government to look at a new legislation to replace the AFSPA. A legislation that strengthens both respect for human rights, as well as protection to our soldiers who put their lives on the line in defence of the country.”
Aman Singh is a student pursuing B.A. Programme from Jamia Millia Islamia.
Edited by: Varda Ahmad
Disclaimer: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.