Armed Forces (Special Powers) Act, 1958

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The Armed Forces (Special Powers) Act (AFSPA), was passed on September 11, 1958, by the Parliament of India.[1] It grants special powers to the armed forces in what the act calls "disturbed areas" in the states of Arunachal Pradesh, Assam, Manipur,Meghalaya, Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.[2] This act has been regarded as a shameful act, which perpetuated all the ills in India and hampering the development of the country. [3]

[edit]The Act

The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:

• Failure of the administration and the local police to tackle local issues.
• Return of (central) security forces leads to return of miscreants/erosion of the "peace dividend".
• The scale of unrest or instability in the state is too large for local forces to handle.

In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in theCRPF. Continued unrest, like in the cases of militancy and insurgence, and especially when borders are threatened, are the armed forces resorted to.[4]
By Act 7 of 1972, this power to declare areas as being disturbed was extended to the central government.[5]
In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like by local leaders which led to the armed forces' presence in the first place.[4][6]

[edit]Armed Forces (Special Powers) Act

According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to[7]:

• Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order, after giving such due warning.

• Destroy any arms dump, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence

• To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.

• To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.

• Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.

• Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

• Army officers have legal immunity for their 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.

• Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.

For declaring an area as a 'disturbed area' there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary .[8]
The Act has been employed in the Indian administrated state of Jammu and Kashmir since 1990.[2] It was withdrawn by the Manipur government in some of the constituencies in August 2004 in spite of the Central government not favouring withdrawal of the act.
In December 2006, responding to what he said were 'legitimate' grievances of the people of Manipur, Prime Minister Manmohan Singhdeclared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report, which is believed to have recommended the Act's repeal, which never happened.[9]
Violence has increased in the past two decades since enforcement of the Act.[10] The state has created a "Gallantry Awards" pool for the arms forces which are awarded for elimination of insurgencies and conduction of operations. The term 'encounters' is used by the security forces to describe confrontations where it is deemed appropriate, under the provisions of the act, to employ violence.[10]
Protests began in Kashmir valley on Sep 10, 2010, on the occasion of Eid and turned violent on Sep 11, the anniversary of the controversial act. Indian Government is considering partial withdrawal of the act.

[edit]The Jeevan Reddy Commission

In 2004, in the wake of intense agitation [11] that was launched by several civil society groups following the death of Thangjam Manorama, while in the custody of the Assam Rifles and the indefinite fast undertaken by Irom Sharmila, Union Home Minister Shivraj Patil visited Manipur and reviewed the situation with the concerned state authorities. In the same year, Prime Minister, Manmohan Singh assured activists that the central government would consider their demand sympathetically.
The central government accordingly set up a five-member committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of the Supreme Court. The panel was given the mandate of "review[ing] the provisions of AFSPA and advis[ing] the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act."
The Reddy committee submitted its recommendations on June 6, 2005. However, the government failed to take any concrete action on the recommendations even after almost a year and a half. The then Defence Minister Pranab Mukherjee had rejected the withdrawal or significant dilution of the Act on the grounds that “it is not possible for the armed forces to function” in “disturbed areas” without such powers.[citation needed]
The 147-page report recommends, "The Armed Forces (Special Powers) Act, 1958, should be repealed." During the course of its work, the committee members met several individuals, organisations, parties, institutions and NGOs, which resulted in the report stating that "the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness." The report clearly stated that "It is highly desirable and advisable to repeal the Act altogether, without of course, losing sight of the overwhelming desire of an overwhelming majority of the [North East] region that the Army should remain (though the Act should go)."[citation needed]
But activists say the Reddy panel despite its recommendation for the 'repeal of the Act' has nothing substantial for the people. The report recommends the incorporation of AFSPA in the Unlawful Activities (Prevention) Act, 1967, which will be operable all over India.[citation needed] On November 2, 2000, ten people were killed when a paramilitary force opened fire at a bus-stop near Malom in Manipur. Most of those killed were women and students. The firing was followed by a brutal combat operation also. A young lady, too shocked at the anarchical act of the state agencies, decided to begin a fast unto death demanding the repeal of the Act responsible for such brutality on the part of the state – the Armed Forces (Special Powers) Act, 1958. Thus began the fight of Irom Sharmila Chanu, the Iron Lady from Manipur whose fast completed 12 years this year on 5 november 2012.
The troops of 8th Assam Rifles were deployed in Malom to counter the ‘insurgent’ attack in the area. Those killed at the Malom massacre were L Sana Devi (60), G Bap Sharma (50), O Sanayaima (50), K Bijoy (35) A Raghumani (34), S Robinson Singh (27), Ksh Inaocha (23), T Shantikumar (19), S Prakash Singh (18) and S Chandramani (17).
Though Sharmila began her marathon fast in protest, the investigation into the Malom massacre has still not yet been completed even after 10 years. Following a directive of the Gauhati High Court, Imphal Bench, in 2004 and 2005, the District and Session’s Judge is conducting an enquiry into the incident. On January 7, 2010, a team of the court led by Th Surbala, the District and Session’s Judge, Manipur East, conducted a spot inquiry at Malom and investigation is on into the facts and circumstances leading to the firing incidents.
Since November 2, 2000, Sharmila has been arrested under section 309 of IPC which punishes attempted suicide by a one-year imprisonment. She is released every year to be arrested again. A compartment in the Jawaharlal Nehru Hospital has become her virtual nest, where the poet in Sharmila pens her verses. She turned down many requests to end her fast and expressed her firmness to continue her fast till the Act is repealed. She has been awarded with many laurels for her nonviolent contribution towards the human rights movement in north east India.

[edit]Non-state views and commentary

[edit]United Nations view

When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards."[12]
On 31 March 2012, the UN asked India to revoke AFSPA saying it had the no place in Indian democracy. Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions said "During my visit to Kashmir, AFSPA was described to me as 'hated' and 'draconian'. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well."[13]

[edit]Non-governmental organizations' analysis

The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination".[14]
The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is part of the problem.[15]
"This reasoning exemplifies the vicious cycle which has been instituted in the North East due to the AFSPA. The use of the AFSPA pushes the demand for more autonomy, giving the people of the North East more reason to want to secede from a state which enacts such powers and the agitation which ensues continues to justify the use of the AFSPA from the point of view of the Indian Government." - The South Asian Human Rights Documentation Centre[16]
A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by security forces against civilians in Manipur since the passage of the Act.[17] The report states that residents believe that the provision for immunity of security forces urge them to act more brutally.[17] The article, however, goes on to say that repeal or withering away of the act will encourage insurgency.
[18] In addition to this, there have been claims of disappearances by the police or the army in Kashmir by several human rights organizations.[19][20]

A soldier guards the roadside checkpoint outside Srinagar International Airport in January 2009.

Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by Indians such as "extra-judicial executions", "disappearances", and torture;[21] the "Armed Forces Special Powers Act", which "provides impunity for human rights abuses and fuels cycles of violence. The Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such powers because the army is only deployed when national security is at serious risk from armed combatants. Such circumstances, they say, call for extraordinary measures." Human rights organizations have also asked Indian government to repeal[22] the Public Safety Act, since "a detainee may be held in administrative detention for a maximum of two years without a court order.".[23]
Activists who are working in J&K for peace and human rights include names of Madhu Kishwar, Ashima Kaul, Ram Jethmalani, Faisal Khan, Ravi Nitesh, Swami Agnivesh, Dr. sandeep Pandey and many others. They all accept that people to people communication and development of new avenues are the only way for peace, however laws like AFSPA are continuously violating human rights issues there.

[edit]United States leaked diplomatic cables

The Wikileaks diplomatic cables have recently disclosed that Indian government employees agree to acts of human rights violations on part of the Indian armed forces and various paramilitary forces deployed in the north east parts of India especially Manipur. The violations have been carried out under the cover of this very act. Governor S.S. Sidhu admitted to the American Consul General in Kolkata, Henry Jardine, that the Assam Rifles in particular are perpetrators of violations in Manipur which the very same cables described as a state that appeared more of a colony and less of an Indian state.[24][25]
Earlier leaks had also stated that International Committee of the Red Cross (ICRC) had reported to the United States diplomats in Delhiabout the grave human rights situation in Kashmir which included the use of electrocution, beatings and sexual humiliation against hundreds of detainees. This act is in force in Kashmir since 1990.[26]

[edit]See also

• Armed Forces Act
• Irom Sharmila Chanu
• Thangjam Manorama

[edit]Footnotes

1. ^