Armed Forces (Special Powers) Act [AFSPA]

Introduction

The Armed Forces (Assam and Manipur) Special Powers Ordinance, promulgated in 1958, came before AFSPA. The ordinance gave the armed forces some unique powers in Assam and Manipur’s “disturbed areas”. On September 11, 1958, it was replaced by the Armed Forces (Special Powers) Act [AFSPA]. 

• The AFSPA, under which a geographical location is declared as disturbed area to facilitate operations of the armed forces, is now applicable fully only in 31 districts and partially in 12 districts of four states in the Northeast Assam, Nagaland, Manipur and Arunachal Pradesh. 
• The Armed Forces (Special Powers) Act, 1958, was completely withdrawn in Meghalaya in 2018, Tripura in 2015 and Mizoram in the 1980s.
• It authorises the state Governor or the central government to declare any portion of a state as a “disturbed area” if the state governor or the central government believes there is a hazardous situation in the area that necessitates the deployment of armed troops in the area. 

• An authorised officer in a disturbed area has some unique capabilities under Section 4 of the Armed Forces Special Powers Act. 

• The law prohibits assembly of five or more individuals; or 
• The officer can discharge fire at that person, even if it ends in death. However, before firing, the officer must issue a warning. 

• The authorised officer has also been granted the power to: 

• Arrest without a warrant: and 
• Search and seize without any warrant any premise to make an arrest or recovery of hostages, arms and ammunition.

• Persons who have been taken into custody have to be handed over to the nearby police station as soon as possible.
• The prosecution of an authorised officer requires prior permission from the Central government.  

Controversy Related to AFSPA

• The AFSPA Act fails to protect and defend various human rights, and many human rights organisations oppose it as being very aggressive. 
• The military’s absolute ability to shoot on sight based on mere suspicion violates the fundamental right to life (Article 21). The military forces’ authority to make arbitrary arrests and detentions violates Article 22 of the Constitution, which provides guarantees against preventive and punitive detentions. 
• Many critics say the provision of the AFSPA act has been unsuccessful in containing terrorism and restoring normalcy in disturbed regions, as the total number of armed/militant organisations has gone up after the act was created. 
• Jeevan Reddy Committee: In November 2004, the union government selected a five-member committee led by Justice B. P. Jeevan Reddy to review the various provisions of AFSPA, and the same committee recommended repealing the AFSPA. The committee suggested that the Unlawful Activities (Prevention) Act, 1967, should be amended to specify the powers of the central forces and armed forces. 
• Varma Committee report on women’s safety and empowerment: the report suggested that sexual violence against women by representatives of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law. The report further added that there is an imminent requirement to review the continuance of AFSPA. 
• The 2nd Administrative Reforms Commission (ARC) also suggested that AFSPA should be repealed.  

The deployment of various armed forces is expected to re-establish normalcy, and it would be very strange if normalcy were not restored within some reasonable time period, certainly not an indefinite time period. The practical issues confronted in ensuring transparency in different counter-insurgency processes must be overcome by modern and innovative methods. The actions of the army must be entirely transparent in investigating various allegations of violations of human rights and bringing the violators to speedy justice.