Armed Forces Special Powers Act (AFSPA)

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  • A reincarnation of the British-era legislation that was enacted to quell the protests during the Quit India movement, the AFSPA was issued by way of four ordinances in 1947.
  • The ordinances were replaced by an Act in 1948 and the present law effective in the Northeast was introduced in Parliament in 1958 by the then Home Minister, G.B. Pant.
  • It was known initially as the Armed Forces (Assam and Manipur) Special Powers Act, 1958.
  • After the States of Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland came into being, the Act was adapted to apply to these States as well.
  • Jammu and Kashmir has a separate J&K Armed Forces (Special Powers) Act, 1990.
About
  • The ASFPA gives unfettered powers to the armed forces and the Central armed police forces deployed in “disturbed areas” to kill anyone acting in contravention of law and arrest and search any premises without a warrant and with protection from prosecution and legal suits. (Ministry of Home Affairs & State Governor declare as disturbed area, AFSPA is implemented).
  • The Act applies not only to the three armed forces but also to paramilitary forces such as the Central Reserve Police Force (CRPF) and the Border Security Force.
  • The law first came into effect in 1958 to deal with the uprising in the Naga Hills, followed by the insurgency in Assam.
Disturbed Areas
  • The Act was amended in 1972 and the powers to declare an area as “disturbed” were conferred concurrently upon the Central government along with the States.
  • Currently, the Union Home Ministry issues periodic “disturbed area” notification to extend AFSPA only for Nagaland and Arunachal Pradesh.
  • The notification for Manipur and Assam is issued by the State governments.
  • Tripura revoked the Act in 2015 and Meghalaya was under AFSPA for 27 years, until it was revoked by the MHA from 1st April 2018.
  • Terming the AFSPA as a "draconian law", renowned human rights activist Irom Chanu Sharmila of Manipur had fought for 16 long years till mid-2016, demanding its repeal.
Controversy Around the Act
Human Rights Violations
  • The exercise of these extraordinary powers by armed forces has often led to allegations of fake encounters, custodial rape and other human rights violations by security forces in disturbed areas while questioning the indefinite imposition of AFSPA in certain states, such as Nagaland and J&K.
  • Indefinite Imposition → Alleged misuse, fake encounters, Military detention → further resentment → fuel insurgency.
Recommendations of Jeevan Reddy Committee:
  • In November 2004, the Central government appointed a five-member committee headed by Justice B P Jeevan Reddy to review the provisions of the act in the northeastern states.
  • The committee recommended that:
    • AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967.
    • The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and Grievance cells should be set up in each district where the armed forces are deployed.
    • Second ARC Recommendation: The 5th report of the Second Administrative Reforms Commission (ARC) on public order has also recommended the repeal of the AFSPA. However, these recommendations have not been implemented.
Supreme Court Views on the Act:
  • The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgment (Naga People's Movement of Human Rights v. Union of India).
  • In this judgment, the Supreme Court held that
    • A suo-motu declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration.
    • The declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired.
    • While exercising the powers conferred upon him by AFSPA, the authorized officer should use minimal force necessary for effective action.
  • In 2016, the Supreme Court concerning internal security had ruled that the armed forces cannot escape investigation for excesses committed in the discharge of their duties even in disturbed areas. In other words, legal protection offered by the AFSPA cannot be absolute.
  • Security Related Expenditure Scheme & Grants – Reason for extension.
Way Forward
  • AFSPA is required to counter insurgencies and lack of development in the Northeast region is also a major reason for the insurgency therefore the Government should take urgent steps to create new opportunities for growth and development.
  • AFSPA should be made more comprehensive, with elaborate rules with respect to the method of investigations of alleged human rights violations to reduce the possibility of misusing it.
  • The Army should carry out fresh investigations into all alleged cases of human rights violations.

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