The Armed Forces (Special Powers) Act is like many other colonial eras ‘Draconian Laws’. Which is contested as unconstitutional several times. The AFSPA was first promulgated as an ordinance by then Viceroy Linlithgow concerning the 1942 Mahatma Gandhi-led Quit India campaign. Armed troops were given the fierce authority to kill according to this ordinance in the face of internal unrest. AFSPA continues to hold a strong foothold in India’s northeastern provinces even after 74 years of independence. However, there is a high-pitched criticism and support of some sincere arguments as well as negate the continuation of AFSPA. The objective of this blog is to evaluate the benefits and drawbacks of The Armed Forces (Special Powers) Act, 1958 in painstaking depth. Currently, AFSPA is enacted in 31 districts of four northeast states, Northeast Assam, Nagaland, and Manipur. and Arunachal Pradesh. AFSPA has resulted in umpteen civilian causalities.
In the wake of partition riots, the Government of India promulgated four ordinances, Bengal Disturbed Area (Special Powers of Armed Forces) Ordinance which was followed by the promulgation of Ordinance for then Assam, East Punjab and Delhi, and the United Provinces. Previous ordinances were supplanted by single legislation The Armed Forces (Special Powers) Act, 1948 with a duration of 12 months, but was later extended till 1957 by further notifications. Later, in 1957 the AFSPA act of 1948 was repealed and on May 22, 1958, the new ordinance The Armed Forces (Assam and Manipur) was promulgated. Later, it was altered by the Armed Forces (Assam and Manipur) Special Powers Act of 1958.
Only the Governors of the State and the Administrators of the Union Territories had the authority to declare a certain region in the State and the Union Territories as ‘disturbed’ Under the Armed Forces (Assam and Manipur) Special Powers Act of 1958. in the State and the Union Territories.
In Punjab and Chandigarh, Similar legislation, The Armed Forces (Punjab and Chandigarh) Special Powers Act,1983 was implemented by repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance of 1983 and enabled the central armed forces to curtail the internal unrest during the Khalistan Movement. Contrastingly, it had two additional provisions which enable the armed forces to stop, search, and seize forcibly if it’s suspected of carrying any proclaimed offender or ammunition. It also gave the authority to a soldier to break or open any lock if the owner of the suspected property is unwilling to hand over the key.
Recently, AFSPA was revoked from Tripura, Meghalaya, and Punjab. After almost 18 years since AFSPA was implemented, Tripura was released from hold in 2015 after the security forces examined the state’s law-and-order situation and made judgments in light of the decline in occurrences connected to militancy in recent years. After 27 years of conflict, the Center repealed the AFSPA in Meghalaya on April 1, 2018.
- Section 4 of AFSPA deals with the Special Powers of the armed forces. In a disturbed area, any commissioned officer, warrant officer, non-commissioned officer, or a person of equivalent rank may fire upon or otherwise use force, even to the point of causing death, against any person who is acting in violation of any law for the maintenance of public order after giving such due warning as he may consider necessary. This might lead to civilian fatalities through crossfire or other errors, either deliberately or unintentionally. Henceforth, enabling a solider to be the judge of the lives on mere his discretion.
- It gives the complete authority to the armed forces, if necessary, so to do, destroy any arms dump, shelter used or likely to be used, or any structure formed as a training camp or as a hideout by insurgents or absconders. There could be several instances of deliberate or unintended destruction of civilian properties, thus violating the “right to life and personal liberty” guaranteed by the constitution of India.
- Any individual who has committed a cognizable offence or against whom a reasonable suspicion exists that he has done or is about to commit a cognizable offence may be arrested without a warrant by the armed forces, which may use whatever force is critical to attaining the arrest. Provision of arbitrary arrest in the said is in direct contravention to the right vested under Article 22 of the India Constitution, which safeguards against the arrest in certain cases.
- The Armed forces have the right to enter and search a location without a warrant order to make the aforementioned arrests, recover any individuals believed to be wrongfully detained or imprisoned, recover any items reasonably suspected of being stolen, or recover any weapons, ammunition, or explosives believed to be kept illegally on the location. They may also use any amount of force necessary to accomplish these goals. The Army personnel may misuse the absolute power granted to them and enable them in a privileged position to plant evidence against the alleged person and take undue advantage.
- Section 6, AFSPA provides immunity to the personals of the forces from legal prosecution against any person for anything done or allegedly done in the exercise of the authorities granted by this Act, unless with the prior approval of the Central Government. This immunity, which safeguards security personnel while occasionally enabling the armed forces to make rash judgments, raises serious ethical concerns.
Conflicting Argument resulting in Stalemate
The constitutionality of the aforesaid act was contested before the Supreme Court in the case of Naga People’s Movement of Human Rights v. Union of India, and the constitutional bench found that neither the act itself nor the powers granted under sections 4 and 5 of the Act are arbitrary or unreasonable, and are therefore not in conflict with the provisions of the Constitution.
B P Jeevan Reddy Committee was formed in 2004, which was headed by the Retd. Supreme Court of India Judge B P Jeevan Reddy. The committee recommended that the Armed Forces (Special Powers) Act, 1958, must be repealed. The committee observed that the act is unduly ambiguous and the sweeping powers conferring immunity on security forces must be reviewed. It was also stated that AFSPA had morphed into “an object of hate and an instrument of discrimination and highhandedness”. The major recommendation by the committee was, “Unlawful Activities (Prevention) Act, 1967 could be suitably amended to deal with terrorism.” The committee also noted that AFSPA created an impression that the people of north east were being targeted for hostile treatment.
In 2015, the Government of India repudiated the recommendation of the Justice B P Jeevan Reddy Committee as it would lower the morale of the Indian Armed Forces and coerce them to make them counterproductive in tackling security challenges. Into the bargain, The Fifth Report on “Public Order” by the Second Administrative Reform Committee was published, and that included a recommendation to repeal the AFSPA. This would remove the situation of discrimination and alienation among the people of North India. ARC recommended the amendment to the Unlawful Activities (Prevention) Act, 1967, and inserting a few new chapters. Committee supported a new doctrine of Policing and Criminal Justice in an inclusive approach to governance.
Certain opposition to the aforesaid act is because India, being a democratic country cannot be the open space for any ultra vires legislation. This shows the inability of our system to deal with the shortcomings of the masses democratically, thus making it deplorable. The armed forces are trained to guard the borders and combat the outer forces rather than making their own citizen’s life miserable. This is one hand opinion, on the other hand, the notion is if there is an exceptional situation of law-and-order and public security is in manifest danger and outside the control of police forces, Sections 130 to 132 of the Code of Criminal Procedure (CrPC), 1973 and the Defense Service Regulation Act empowers the Armed Forces to use necessary force to disperse the unlawfully assembled with the intent to disturb peace and harmony to maintain the peace and tranquility in the society. Recalling immunity granted to the Armed Forces will certainly demark the hesitation in taking on-ground action in the fear of court-martial which would mean a compromise of the internal security of the country. If AFSPA is revoked, it will impose a direct threat of an increase in insurgency and militancy which will affects the functioning of the Armed Forces. This might also lead to a proxy war by our hostile Neighbour. Owing to the recommendation of the Jeevan Reddy Committee and the report of the Second Administrative Reform Commission, the Government of India should consider the abundant aspects and abide by the recommendation presented to Constitute a new chapter in the Unlawful Activities (Prevention) Act of 1967 to deal with terrorism.
Author(s) Name: Ayush Yadav (Marathwada Mitramandal Shankarrao Chavan Law College, Pune)