The Armed Forces (Special Powers) Act, 1958
States such as Manipur and Jammu and Kashmir have for long been demanding the withdrawal of the Armed Forces (Special Powers) Act, 1958. Only recently, the issue of revocation of the Act came in the way of a likely alliance between the Jammu and Kashmir People’s Democratic Party and the Bharatiya Janata Party to form the government in Jammu and Kashmir. What compounded the matter was the Army’s reported apprehension over any move to dilute the AFSPA in the state and the BJP’s concerns that any such move might lead to “lowering of the morale of forces operating” in Jammu and Kashmir.
While some sort of understanding has now been made between the two political parties that paves the way for the process of government formation in the state after a stalemate of two months, this brings the focus on the AFSPA – a legislation that has much been demonized by civil society groups, political parties and media as well in recent times.
What is AFSPA?
The Armed Forces (Special Powers) Act (AFSPA) dates back to 11 September 1958, when it received the assent of the President after both the Houses of Parliament of India had passed the Act. It was enacted to provide certain special powers to the armed forces in “disturbed areas” where the armed forces were deemed necessary to aid the civil power.
The Act provides more power to the armed forces in “disturbed areas” and was first introduced in the states of Assam, Manipur, Meghalaya, Nagaland, Tripura and (the then Union Territories) Arunachal Pradesh and Mizoram. It was extended to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, in July 1990.
In relation to any state or Union Territory to which this Act extends, it empowers the Governor, the Administrator, or the Central Government to declare the whole or part of the state or Union Territory as disturbed area vide a notification in the official Gazette, so as to allow the armed forces to aid the civil power in controlling the situation.
However, the Governor or administrator, despite being empowered by the Act to declare any area of the State as “disturbed area’, cannot take arbitrary decisions “on ground of absence of legislative guidelines” (Inderjit Barua vs. State of Assam, AIR 1983, Del. 514). This means the AFSPA can be applied only after an area is declared a ‘disturbed area’ by the State/Centre.
Special Provisions to the Armed Forces as bestowed by the Act
The Act empowers any warrant officer, commissioned or non-commissioned officer, or any other person of equivalent rank in the armed forces to open fire after giving due warning, “even to the extent of causing death…,” so as to maintain public order in a disturbed area.
As per the Act, it is within the discretion of the army officer to destroy:
- Any arms dump
- Prepared or fortified position or shelter from which armed attacks are made or are likely to be made or attempted to be made”
- Any structure used either as a training camp, hideout by wanted armed gangs or absconders
The Act also gives unrestricted power to the army officer to search any premise or arrest anyone without warrant even by using force, on the basis of “a reasonable suspicion” that the person had either committed or was “about to commit a cognizable offence”.
The Act provides that the arrested person should be handed over to the police at the nearest police station “with the least possible delay” along with a report of the circumstances occasioning the arrest.
However, the Act provides legal immunity to the army officer for his actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government’s judgment on why an area is found to be disturbed subject to judicial review.
He cannot be prosecuted and no suit or other legal proceeding can be instituted against him “except with the previous sanction of the Central Government”.
List of amending acts
1. The State of Mizoram Act, 1986 (34 of 1986).
2. The State of Arunachal Pradesh Act, 1986 (69 of 1986).
3. The Armed Forces (Assam and Manipur) Special Powers (Amendment). Act, 1972 (7 of 1972).
4. The Armed Forces Special Powers (Extension to Union Territory of Tripura) Act, 1970.
5. The Repealing and Amending Act, 1960 (58 of 1960).
History of AFSPA
Prior to the AFSPA, an Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated by the President on 22 May 1958 to check increasing violence in the northeastern states. Thereafter the Ordinance was replaced by the Armed Forces Special Powers Bill.
In British India too, an ordinance by the same name– The Armed Forces Special Powers Ordinance of 1942 — was introduced on 15 August 1942 which was aimed at suppressing the Quit India Movement. Thereafter four ordinances – the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance – were modeled on the British ordinance to deal with the alarming internal security situation in the country in 1947 after the Partition.