Armed Forces (Special Powers) Act, 1958

SOURCE: WIKIPEDIA

The Armed Forces (Special Powers) Act (AFSPA), was passed on September 11, 1958 by the Parliament of India. It conferred special powers upon armed forces in what the language of 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 The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.

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:

"Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law" against "assembly of five or more persons" or possession of deadly weapons.

To arrest without a warrant and with the use of "necessary" force anyone who has committed certain offenses or is suspected of having done so.

To enter and search any premise in order to make such arrests.

It gives Army officers 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.

It was withdrawn by the Manipur government in some of the constituencies in August 2004 in spite of the Central government not favouring withdrawal of the act.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 Singh declared 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.

The Act has been employed in the Indian administrated state of Jammu and Kashmir since 1990.

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."

Violence has increased in the past two decades since enforcement of the Act. 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

United Nations objections

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.

The Attorney General of India responded that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a "war footing." He argued that the Indian Constitution, in Article 355, made it the duty of the Central Government to protect the states from internal disturbance, and that there is no duty under international law to allow secession.

Non-governmental organizations' analysis

The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination".

The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is part of the problem.

"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[9]

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[10], and declares that the Act has "resulted in large-scale violation of the citizens under Articles 14, 19, 21, 22, and 25 of the Constitution". The report states that residents believe that the provision for immunity of security forces urge them to act more brutally.[10] The report also gives a grim picture of the effects of removal of the Act.

In addition to this, there have been claims of disappearances by the police or the army in Kashmir by several human rights organizations.

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; 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 the Public Safety Act, since "a detainee may be held in administrative detention for a maximum of two years without a court order.".

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