Dope Sheet

Armed Forces Special Powers Act Or AFSPA

1.What is AFSPA ?

The Armed Forces Special Powers Act (AFSPA) is an act empowering armed forces to deal effectively in disturbed areas. Any area which is declared disturbed under disturbed areas act enables armed forces to resort to the provisions of AFSPA.The choice of declaring any area as disturbed vests both with state and central government. After an area comes under the ambit of AFSPA,any commissioned officer, warrant officer, non-commissioned officer or another person of equivalent rank can use force for a variety of reasons while still being immune to the prosecution. The act was passed on 11 September 1958 by the parliament of India to provide special legal security to the armed forces carrying out operations in the troubled areas of Arunachal Pradesh,Assam,Meghalaya,Manipur,Mizoram,Nagaland,Tripura.(seven sisters).However, in 1990 the act was extended to the state of Jammu and Kashmir to confront the rising insurgency in the area. In Manipur, despite opposition from the Central government, state government withdrew the Act in some parts in Aug, 2004. Any state govt. can declare the state of emergency and introduce AFSPA in the following conditions:a)When the local administration fails to deal with local issues and the police proves inefficient to cope with them. b)When the scale of unrest or instability in the state is too large for the police to handle. In case of elections, for instance, when local police is stretched too thin to simultaneously handle day to day tasks, the central govt.obliges by sending in CRPF. Continued unrest due to militant insurgencies and threat to the borders, the armed forces are called in to deal with the situations. However there can be serious ramifications of resorting to armed forces in the civilian settings as the armed forces have no special training about civilian law and policing procedures.

2.What are the legal provisions of AFSPA ?

In an area declared disturbed an army officer is legal free to carry out following operations:

a) 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 b) Destroy any shelter (private or govt.)from which armed attacks are made or likely to be made or attempted to be made. c) Arrest any person without warrant who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence. d) Enter and search, without warrant, any premises for purpose of arrest or to recover any person, arms,explosives. e) To search and seize any vehicle suspected to be carrying an offender or any person against whom any reasonable suspicion exists that he has or is about to commit an offence. f) To provide legal immunity to the army personnel found involved in any violation or ethical breach i.e., they cannot be sued or prosecuted.

3.What is the historical background of AFSPA?

At the beginning of the century, the inhabitants of the Naga Hills, which extend across the IndoBurmese border, came together under the single banner of Naga National Council(NNC), aspiring for a common homeland and self-governance. The Naga leaders were adamantly against Indian rule over their people once the British pulled out of the region. Under the Hydari Agreement signed between NNC and British administration, Nagaland was granted protected status for ten years, after which the Nagas would decide whether they should stay in the Union or not. However, shortly after the British withdrew, independent India proclaimed the Naga Territory as part and parcel of the new Republic. The NNC proclaimed Nagaland's independence. In retaliation, Indian authorities arrested the Naga leaders. An armed struggle ensued and there were large casualties on either side. The Armed Forces Special Powers Act is the product of this tension. Similarly in the state of Jammu and Kashmir, the flawed elections of 1987,in which the leaders of MUF(Muslim united front)had to face a fabricated defeat at the hands of mainstream political parties, resulted in violent means of struggle for secession from India. The massive militant uprising coupled with large scale infiltration of cross border militants turned the situation volatile. In order to suppress the movement, the central govt.introduced AFSPA in 1990.

4.Why do armed forces need AFSPA?

There is no gainsaying the fact that political necessity drives deployment of the security forces for internal security duties. The forces are aware that they cannot afford to fail when called upon to safeguard the countrys integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilization of combat capability. This includes safeguards from legal harassment and empowerment of its officers to decide on employment of the minimum force that they consider essential. The absence of such a legal statute would adversely affect organizational flexibility and the utilization of the security capacity of the state. This would render the security forces incapable of fulfilling their assigned role. In brief, it would imply that a soldier cannot fire upon a terrorist, take

necessary action to destroy a hideout, arrest a suspect when in doubt, and lastly search any premises to recover arms and ammunition. Consequentially, the security forces have a right to seek legal provisions to undertake operations for three fundamental reasons. One, a soldier unlike a policeman is not empowered by the law to use force. Next, while operating in far flung areas, it is simply not possible to requisition the support of magistrates every now and then. Lastly, their employment is an instrument of `last resort` when all other options have been exhausted.

5.How do common people view APSPA ?

To a layman AFSPA clearly sounds as right to kill act.This is because of the draconian nature of the law. Since its inception,tha law has received widespread criticism from various human rights organisations and civil societies. But it is the contents of the act that are flawed and misty. Firstly, it makes no distinction between a peaceful gathering of five or more people and a berserk mob. So, even innocents who have no role in creating a situation that results in that region being called disturbed, also come under the purview of the law. Secondly, the law also states that, no prosecution can be initiated against an officer without the previous sanction of the Central government. Purportedly, the logic behind the inclusion of this section is, to protect the officers from frivolous and misguided allegations. The government is usually not very fluid in giving this much-needed sanction, in order to express their faith in the armed forces and protect their interests. Thirdly, the decision of the government to declare a particular area disturbed cannot be challenged in a court of law. This has been the heart of the problem. As the recent situation in Kashmir seems to go out of hand, leaders have now suggested that the act must be repealed from certain provinces citing the reason that the imminent threat, due to which AFSPA was enforced in that province in the first place, has been neutralized over the years. Certainly, the reasoning is specious it is nothing more than a tactic to appease the population and pacify their agitated sentiments. If the threat has indeed been neutralized, then why not declare the region as not disturbed, which will by itself conclude the role of the army? To the common masses who have been the victims of the injustice(or delayed justice)AFSPA promotes, the act represents one of the most dehumanizing tool that Modern India has ever produced.

6.What if AFSPA is diluted?

There has been a constant demand from all civil organisations( including the state and central govts.) that some of the provisions of AFSPA must be diluted to make it more humane and accountable act. But the army believes the annulment of act could prove disastrous at the central and the state government levels. three issues merit attention: Firstly, it would dilute the capacity of an important instrument of the state the armed forces - to tackle the security challenges faced by the country.

Secondly, it would motivate the insurgent leadership, field cadres and their over ground supporters to engage in reckless damage to public life and property. It may well result in a security situation which slides beyond redemption, necessitating major political compromise.

Thirdly, the annulment of the law and the resultant lack of security cover would adversely affect the governance and development capacities in the insurgency affected states, and the eventual redress of local grievances.

7.What is Jeevan Reddy Commission and what are its recommendations?

In 2004, in the wake of intense agitation that was launched by several civil society groups following the death of Manoram Devi, while in the custody of the Assam Rifles and the indefinite fast undertaken by Irom Chanu Sharmila, 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 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)."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 .The panel gave its report in June 2005 but the Manmohan Singh government has neither officially accepted nor rejected its findings. Reasons for this are many. With rapid rise in terrorism throughout the country in the past couple of months coupled with terrorist violence in many places, especially in the Northeast, the government of India cannot take a hasty decision on the removal of this Act, as it could spell several dangers to the strategic security and territorial integrity of the country

8.Is AFSPA a blot on the democratic fabric of India?

India today stands at very crucial point to decide whether it will embrace fully the spirit of accountability and transparency to progress towards a functional democracy or slide towards a rigid militaristic state with impunity as a banner, negating its pious stance of upholding the Gandhian philosophy of non-violence and Ahimsa. Human rights are universal and the Indian Constitution enshrined the fundamental rights and directive principles to nurture the core values of humane aspiration on which the Indian independence was fought for against the external colonizers. However even after more than 60 years of its liberation from the clutches of colonial imperialist powers, India has failed to germinate the basic fundamental human rights such as the `right to life for all its citizens as guaranteed under Article 21 of its Constitution, creating a serious democratic deficit especially in its governance in the Northeast and other indigenous/ tribal peoples areas and minority nationalities/communities under its dominion. India as a member of UN Human Rights Council must make its position clear by demonstrating its sincere commitment to the various international obligations it has been bound with due to its

commitment to uphold human rights principles, as ratified previously to bolster its democratic image. However, impunity, rape, wanton violence, environmental destruction, cultural genocide, developmental aggression, forceful resource exploitation, systematic planned transfer of populations to drown or marginalize indigenous peoples to alienate their land and territories, distortion of history and disempowerment through alien legal system, forced labour, torture, criminalizing indigenous institutions, militarization, racism, stigmatization, socio-economic deprivation, etc will be perpetuated again if the relationship between Indian state(s) and the indigenous peoples or submerged minority nationalities, are shaped by distrust and fear instead of trust, well being and hope. Shall we allow the future to be dominated by violent paradigm such as the continuing use of AFSPA? It is time India gives space for Democracy and its cherished values to reemerge instead of suppressing the genuine democratic voice of We the people which continues to remain excluded under the tyrannous rule. India must today prove that it seriously subscribe to the democratic ideals and upholds universal human rights principles and practices. `India shining will emerge when India authentically makes its bold move to fully embrace democracy and dismantle the violent structures on which it has relied to govern the ungovernable zones and to promote abnormal dispensation as normal credence of democracy. Indian state needs to be more accommodative and understanding in this new century where its prestige as a major international player does not succumb to its own dubious play of trampling over the rights of its citizens.The political problems must be dealt politically without bringing army in direct confrontation with the civilian population. Unless india realises the urge to solve the issues of north eastern states an the much vexed Kashmir problem, these types of violations will continue and the much controversial Indian army will have to face the criticism.

BY :- OWAIS ASHRAF