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ARMED FORCES SPECIAL POWERS ACT: GENESIS AND DEVELOPMENT

Soni Maurya 1

INTRODUCTION

The Armed Forces Special Powers Act (AFSPA) is a series of acts enacted by the parliament granting the Indian Army the power to undertake operations in disturbed areas. The introduction of such acts aims to maintain peace and order in areas that are regarded as Disturbed areas. It was introduced in 1958 to deal with the Naga insurgency. The act provides immunity to the armed forces to carry out activities to maintain peace and order to secure India’s sovereignty. Over the years AFSPA has become one of the most debatable topics and thus led to various opinions and criticism. AFSPA as the name itself suggests grants special power to the armed forces to act in the disturbed areas. The act provides a detailed explanation of each term used in it. 

BACKGROUND

The roots of the concept are quite old. The first such act was promulgated by the British called the Armed Forces Special Power Ordinance in 1942 to suppress the Quit India movement. Later the govt. of India incorporated four different ordinances in the year 1947; (a) the Bengal Disturbed Areas Act (special powers of armed forces) ordinance; (b) the Assam Disturbed Areas (special powers of armed forces) ordinance; (c) The East Bengal Disturbed Areas (special powers of armed forces) ordinance; (d) the United Province Disturbed Areas (special powers of armed forces) ordinance to accommodate internal security issues arising due to partition. The years surrounding partition is marked by various opposition movements, clashes, and riots. Thus, there was a need to maintain peace and order. These four ordinances were promulgated in (a) Bengal (b) East Bengal (c) Assam (d) United Province. Later in 1957, these ordinances were repealed. The Armed Forces (Assam& Manipur) Special Powers Act was enacted in the year 1958 to deal with Naga Insurgency. The act was later extended to all the North-eastern States (Nagaland, Tripura, Assam, Meghalaya, Manipur, Mizoram, and Arunachal Pradesh). Armed Forces (Chandigarh& Punjab) Special Powers Act enforced on 15th October 1983. It was enacted on the Thirty-fifth year of the Republic. The act extended to the whole state of Punjab and the Union Territory of Chandigarh. The act repealed Armed Forces (Chandigarh& Punjab) Special Powers.

The ordinance, 1983. It was withdrawn in the year 1997.  Armed Forces (Jammu & Kashmir) Special Powers Act was promulgated in Jammu and Kashmir in the year 1990. It was enacted in the forty-first year of the Republic. The act is still in force in the Indian State of Jammu& Kashmir. As per the act, if the governor of Jammu and Kashmir or the central government is of the opinion that the whole or any part of the state is in such a disturbed area then this act can be imposed. 

PROVISIONS OF THE ACT

  • Who can impose?

The state government can impose the act. By act 7 of 1972 the power to declare disturbed areas was extended to the central government.

  • What is a “disturbed area”?

A disturbed area is one that is asserted by notification under Section 3 of the AFSPA. An area is usually agitated because of the differences or disputes between members of various religious, racial, language, or regional groups or castes or communities.

  • What are the powers Under AFSPA?

According to section4 of the act, an officer of the armed forces has the following powers:

  1. After giving due warning, he can open fire or use any kind of force even if leads to death.
  2. Can destroy any arms dump, hideouts from armed attacks are made.
  3. Can arrest without warrant if a person has committed a cognizable offense.
  4. Can enter and search any premise to make arrests, recover any person who has committed the wrong.
  5. Can stop and search any vehicle or vessel reasonably suspected to be carrying weapons.
  6. Army officers have legal immunity under this act for every action they perform under section 6 of the act. The section also states that if there is a sanction passed by the central government.

Under section 5 of the act, the arrested person has to be brought before the nearest police station in-charge within the least possible day with a written report of circumstances leading to such arrest. 

AFSPA IN MANIPUR

The Armed Forces (Assam and Manipur) Special Powers Act came into effect in 1958. It was, later, renamed the Armed Forces (Special Powers) Act (AFSPA). The state of Manipur was given the status of Disturbed the area in 1980 due to the development of four insurgent groups in the state.  In December 2015 the status of ‘Disturbed Area’ of Manipur was extended by the Manipur Government. The primary role of the Army was to engage in counter-insurgency operations as the state shares boundary with Myanmar, from where several terrorist outfits operate.  There was a terror attack in the state which is regarded as the deadliest terror attack on the state since 1982. In the attack, 20 soldiers were killed, and over a dozen were injured. It was regarded as a well-planned and clinically executed militant attack in 33 years.

Manipur in 1949 is said to be under ‘duress’ and therefore many groups in the state are demanding an independent status. The statistics clearly show that the act has been in misuse by the army for a long.  It has been alleged that over 1528 people are killed by the armed under the tag of fake encounters carried by the forces between 1979 and 2012. The Supreme Court said on the news of extrajudicial killings- “the army and the paramilitary forces deployed in the state of Manipur cannot use excessive and retaliatory force”. Different political leaders have considered the law as ‘Draconian’. P. Chidambaram, former Union Minister said the act is ‘Obnoxious’. There has always been opposition between various political leaders and human rights activists on the Armed Forces Special Powers Act. Executive Director of Human Rights Alert, Babloo Loitongbam, responded to Chidambaram’s comments and asked firstly, why he’d remained silent and not taken any step on the issue when he was in office, and why the UPA govt. headed by former Prime Minister Manmohan Singh had failed to repeal this Act. The most famous agitation against the law was from the ‘Iron lady’ Irom Sharmila. She started her fast at the age of 28 years after 10 civilians were killed by the Army in a massacre. Her aim was to repeal the Draconian law enforced in the state. In 2016, after 16 years the iron lady broke her fast which is exactly a month later when the Supreme Court said that armed forces do have an ‘absolute immunity’ from the criminal liability. Irom spent 16 years in judicial custody in a hospital in Imphal where she was forced- fed a mix of medicines and baby formula. She was charged with the offense of ‘suicide attempt’. In August 2014, she was released from custody but again after 2 days she was re-arrested when she denied ending her protest. Amnesty International has recognized her struggle has described her as a ‘Prisoner of Conscience’

MANORAMA CASE 2004

Thangjam Manorama (1970-2004) was a victim of extrajudicial activity of the Armed Forces in the state of Manipur. She was shot several times and was raped. The incident took place at night were Thangjam was arrested and then raped and killed by the Indian paramilitary unit- 17th Assam Rifles on 11th July 2004. At night she was arrested on the ground of having possession of some incriminating objects but later she was found to be innocent but still, the army personnel arrested her and she was raped and then killed. To check the disparities, the Manipur Government enquired the case with the help of a commission in 2004. In November 2004 the committee submitted its report. The Guwahati High Court also looked into the matter and stated that The Army is deployed under Armed Forces (Special Powers ) act thus the state government does not have any jurisdiction. The matter will be dealt with by the Central Government.  To date, no judgment was given by the Court. Manorama’s case became a ground of protest against the AFSPA imposed in the state of Manipur. After 5 days of the incident, 30 middle age naked women marched towards the Assam

Rifles gates shouting –‘Indian Army rape us too …. We all are Manorama’s mother’. Also Padma Shree awardee M.K. Binodini Devi, an author returned her award in protest. In 2014, the apex court of India heard an appeal claiming compensation of 10 lakhs from the government to

Manorama’s family. The court accepted the plea and awarded the compensation but the real culprit is free to date. 

AFSPA IN JAMMU & KASHMIR

 The law was first implemented on 5th July 1990 when the entire law and machinery of the state was found to be inadequate and ineffective. Later, the Government of Jammu and Kashmir on August 10, 2001, extended the law to Jammu also. The law is still in force till the date of its inception. Currently, the army is opposing the withdrawal of the law from the state of Jammu and Kashmir as it may have negative consequences for the state and the nation at large.

CONCLUSION

The Armed Forces (Special Powers) Act is a draconian rule and has been a major reason for internal disturbances and conflict in places where it is in force. Clearly, the act violates the fundamental rights of the citizens guaranteed under the Indian Constitution, and thus either should be amended or repealed. P. Chidambaram said that ‘AFSPA should be amended if it is not repealed and the powers should be given to the respective policies instead of the army which will reduce half the violence in the state’.

Author(s) Name: Soni Maurya (Dr. Hari Singh Gour University, Sagar University) 

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Reference(s):

  • What is AFSPA, and where is it in force? , The Hindu, April 23, 2018
  • The armed forces (special powers) act, 1958, and federal conflicts, Himangshu Ranjan Nath, Falakyar Askari, ILI Law Review Vol. II.
  • The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the

Northeast of India