The Armed Forces (Special Powers) Act, or AFSPA, is a law with roots in British-era legislation. Originally enacted during the Quit India movement to quiet protests, it was reintroduced through four ordinances in 1947. These were subsequently replaced by an Act in 1948 and the current law, effective in the Northeast, was introduced to Parliament in 1958 by Home Minister G.B. Pant.
Initially known as the Armed Forces (Assam and Manipur) Special Powers Act, 1958, the Act was later adapted to apply to newly formed states; Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland. Its powers have recently been extended in parts of Arunachal Pradesh and Nagaland for another six months by the Ministry of Home Affairs (MHA).
Powers Granted under the AFSPA
The AFSPA grants considerable power to armed forces and Central armed police forces deployed in “disturbed areas”. They can kill anyone acting in contravention of law, arrest and search any premises without a warrant, and are protected from prosecution and legal suits. This was first implemented in 1958 to deal with a Naga uprising.
In 1972, the Act was amended to allow the Central government along with the States to declare an area as “disturbed”. Although Tripura revoked the Act in 2015 and Meghalaya in April 2018 after 27 years, it is still enforced in parts of Assam, Nagaland, Manipur, and Arunachal Pradesh.
Controversies Surrounding the Act and Human Rights Violations
The Act has attracted criticism for enabling human rights violations. It allows security personnel to use force and shoot “even to the causing of death” if they believe it necessary for maintaining public order. It also grants soldiers the power to enter premises, search, and arrest without a warrant. This has led to multiple accusations of fake encounters and human rights violations by security forces in disturbed areas.
Recommendations for the Amendment of AFSPA
In November 2004, the Central government appointed a five-member committee led by Justice B P Jeevan Reddy to review the provisions of the act in the northeastern states. The Jeevan Reddy Committee recommended that:
1. AFSPA should be repealed.
2. Relevant provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967.
3. The Unlawful Activities Act should specify the powers of the armed forces and paramilitary forces clearly.
4. District-level grievance cells should be set up where the armed forces are deployed.
Similarly, the 5th report of the Second Administrative Reforms Commission (ARC) on public order also recommended the repeal of the AFSPA.
Views of the Supreme Court on AFSPA
Despite controversy, the Supreme Court upheld the constitutionality of AFSPA in a 1998 judgement, Naga People’s Movement of Human Rights v. Union of India. The Court ruled that a declaration could be made by the Central government, but the state government should be consulted prior, declarations should be limited in duration with periodic reviews every six months, and minimal force should be used.
The Need for Changes in Implementation of AFSPA
With numerous instances of human rights violations under AFSPA, maintaining the status quo is no longer feasible. The Act has become a symbol of oppression in regions where it’s enacted, and the government needs to reassure these communities with the promise of favourable action. The imposition and lifting of AFSPA should be considered on a case-by-case basis and limited to a few disruptive districts, not an entire state. The government and security forces should also adhere to guidelines set out by the Supreme Court, the Jeevan Reddy Commission, and the National Human Rights Commission (NHRC).
Activists’ Opposition to Sections of AFSPA
Human rights activists have persistently underscored that AFSPA is draconian and enables security forces to abuse human rights. The contested sections of AFSPA are those which grant soldiers executive powers, such as entering and searching premises and arresting without a warrant. These powers have been critically evaluated in reference to the Apex Court’s view