The AFSPA or The Armed Forces (Special Powers) Act is an Act passed by the Parliament which gives special powers to the Armed Forces in the disturbed areas. It first came into existence in 1958 to deal with the Naga rebellion in the States of Assam and Manipur. The decision to involve the Armed Forces was taken by the Central government as the police and the paramilitary forces failed to control the internal disturbances there. Subsequently, the Act was extended to the other North Eastern States as well.
The AFSPA was enforced in the State of Punjab in 1983 to quell the Khalistan movement. It was eventually withdrawn in 1997 after improvement of the security situation there. The Act came into force in Jammu & Kashmir in 1990 after the internal security situation worsened in the valley due to the terrorist activities of the Pakistan-backed militants. It has become an effective means to control militancy and maintain law and order.
Powers under the Act
The AFSPA is enforced by the Central government in a particular State only when the scale of disturbances is so large that the local police or the paramilitary forces cannot control it on their own and the administration becomes almost paralysed. The Act gives sweeping powers to the Armed Forces to stop and search vehicles, arrest suspects without a warrant, search homes or premises suspected to be storing illegal arms, ammunition and explosives or harbouring terrorists, use force or fire upon people causing serious disturbances and destroy militant hide-outs and arms dumps.
Considering the nature of their duty, the Act provided legal immunity to the Armed Forces personnel from prosecution except with the sanction of the Central Government. This privilege was however withdrawn by the Supreme Court in 2016 after allegations of human rights violations by the security forces.
Necessity of AFSPA
The AFSPA is enforced by the government only in extraordinary circumstances – complete breakdown of law and order, threat to life and property, loss of innocent lives, grave threat to national security and inability of the local police to tackle militancy. In these situations, armed insurgents gain control of some pockets and areas and establish a parallel administration by use of threat and intimidation and even create fear among the police. There is a breakdown of the constitutional machinery and the State appears totally powerless to handle things on its own. Based on the reports received from the State government on the ground situation, the Centre decides on enforcing the AFSPA.
Proponents of the Act argue that without it, our country would have lost Jammu and Kashmir and parts of North-East by now. Punjab would not have become normal and Khalistan would still be the goal of the militants without the special powers given to the Armed Forces. Even with the AFSPA in force, things have not been easy for the Armed Forces especially in J & K and in the States of Assam, Nagaland and Manipur.
The Army has declared that it cannot control militancy and terrorism without the use of AFSPA as the situation in the insurgency areas is grave and there is serious threat to life due to the peculiar circumstances there. The terrorists are often difficult to locate and identify among the civilian population, there is support to them from across the borders, there are informers and traitors helping them and there is always a threat of sudden gunfire from any corner. Therefore, it becomes impossible for the Army under these hostile conditions to follow the routine and cumbersome identification and prosecution procedures usually adopted by the police.
Opposition to the AFSPA
Opposition to the AFSPA has come from the United Nations and some human rights organizations who have said that the Act is draconian and violates basic human rights of the citizens. They have accused the Armed Forced forces of excessive use of force, torture, extra-judicial killings, kidnappings, rapes and killing of innocent civilians. The hunger strike of Irom Sharmila for 16 years in Manipur on the abuse of AFSPA has highlighted the need to have a relook at the way the Act is actually implemented.
The Santosh Hegde Commission on Manipur encounter deaths has recommended that the AFSPA be made more humane and the security forces made accountable for violations. It has asked for the periodic review of enforcement of AFSPA depending upon ground situation. The Justice Jeevan Reddy Commission has called for its repeal by terming it a “symbol of hate, oppression and high handedness”. However, the State governments have not been bold enough to ask for its repeal for fear of the militancy returning and things going out of hand again.
The Supreme Court order in July 2016 that any encounter carried out by the security forces under the AFSPA should be subjected to a thorough enquiry should come as a welcome relief to the human rights activists and at the same time serve as a warning to some security personnel who are sometimes prone to misusing it.
The situation in parts of North-East and especially in Jammu and Kashmir is still volatile and the continued enforcement of AFSPA becomes inevitable. Without it, these States will become the hub of terrorist and anti-national activities with a grave threat to peace and national security. However, it is also imperative that the authorities concerned use the Act with discretion and without antagonizing their civilian brethren.