The British have left a rich history behind them, when they left the country in 1947, after 150 years of imperialism. Of the less visible legacies, are the laws that were adopted into the constitution and still continue to be in practice, more than 70 years of independence. While some of the laws are helpful even today, most are redundant and draconian in nature. Once such British offering to India is the Armed Forces (Special Powers) Act, commonly known as AFSPA. The law was first passed to suppress the Quit India Movement and was then adopted by the central government during the partition to quash conflict in disturbed areas like Assam and Bengal.
The Armed Forces (Special Powers) Act was passed in 1958, under which the Acts, Armed Forces Special Powers (Assam and Manipur) Act, 1958; The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983; The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. As on January, 2019; AFSPA is operational in entire States of Nagaland, Assam, Manipur (except Imphal Municipal area), three districts namely Changlang, Tirap and Longding of Arunachal Pradesh and the areas falling within the jurisdiction of the eight police stations in the districts of Arunachal Pradesh, bordering the State of Assam.
What is Armed Forces (Special Powers) Act ?
The Armed Forces (Special Powers) Act was passed to help the army keep peace in the disturbed areas and for this purpose various rights were bestowed upon them. Thus, the law gives immense power to the army to maintain the rule of law in disturbed areas. According to the Disturbed Areas Act, the region in which frequent disputes arise on the basis of race, religion, language, region, and caste in anarchic situations can be declared as ‘Disturbed Areas’ by the Center or States. AFSPA applies to only those areas that have been declared as disturbed areas and armed forces are sent to these areas only after the law is applied. Under this Act, the armed forces are encouraged to:
The information received by the form of RTI queries show that the state of Jammu and Kashmir has witnessed the most human rights violations under this law, with 92 complaints against Indian Army and Paramilitary forces, followed by Assam, Manipur, Arunachal Pradesh and Meghalaya.
Several instances have come forward of the armed forces misusing the power bestowed upon them to stage fake encounters and sexually exploit the women in disturbed areas. This behavior of the forces is in stark violation of human rights and is compared to the Draconian Rowlatt Act, under which any person could be arrested merely on the basis of a doubt.
Over the years numerous protests have been raised against the extra-judicial killings and rapes by the army. Irom Sharmila has been on a hunger strike against AFSPA for 16 years to fight the insurgency in Manipur and the Seven Sisters. In 2004, a dozen naked women marched to the Assam Rifles headquarters, daring the soldiers to rape them. These protests forced the Alliance government in 2005 to set up the Justice Jeevan Reddy Committee to review the law and make recommendations. Describing AFSPA as “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness,” the Reddy Committee suggested it to be repealed. However, no steps were taken to repeal or reform AFSPA.
The army is opposed to lifting the law, citing that the legal protection is essential if order is to be maintained in these regions. It also provides sweet escape to the state governments as with AFSPA in force, they can avoid responsibility for their own administrative failures. The chances of repeal in the law seem bleak at the moment with Bharatiya Janata Party led government, stridently opposed to any dilution in the law.
In 2014, the Hon’ble Supreme Court had appointed a committee to probe into the encounter killings in Manipur in which minors were shot on the ground that they were militants. The committee comprising of ex Supreme Court Justice Santosh Hegde, ex Chief Election Commissioner J M Lyngdoh and a senior police officer showed that none of the six victims had any previous criminal record. The association of the families of the victims had alleged that over 2000 extra judicial killings had taken place and people with no criminal record have been killed and no investigation takes place. The bench comprising Justice Aftab Alam and Justice Ranjana Prakash Desai declared that the cases did not qualify as encounters and that they were staged.
According to a Public Interest Litigation filed in the apex court, 1528 people were killed in encounters by the forces in the state of Manipur between 2000 and 2012. The Indian Army had been accused of staging encounters and killing civilians. In its defence, the army stated that it could not be subjected to FIRs for carrying out anti-militancy operations in insurgency prone areas. The Supreme court while deciding to monitor the investigation declared AFSPA as “failure of the civil administration.” It had ruled that the mere fact that the law was in force in a disturbed area would not give blanket immunity to the forces from any unjustified deaths.
In November 2018, the Supreme Court dismissed a plea of over 300 armed forces challenging the FIRs against them over some deaths in military operations. These FIRs were filed only in those cases in which officers had been indicted by an enquiry committee or a judicial probe. The court drew a lie at unjustified deaths, implying that the forces would be answerable to any disproportionate force used by them in the disturbed areas. In the first instance, the central government urged the court to review its ruling but the top court stuck to its stance.
The Way Ahead
In a welcome move, the Tripura government in 2015 revoked the Armed Forces (Special Powers) Act in the state. The Home ministry has made it clear that all personnel deployed in conflict zones under AFSPA have to follow a strict code of conduct, “For preventing human rights violations under the AFSPA, guidelines have been issued for the armed forces. Violation of these guidelines by members of the Armed Forces makes them liable for prosecution under the Army Act and the respective Acts of the CAPFs (central armed police forces),” a home ministry official said.
The Act has not been able to achieve its objectives as the law and order situations are said to have worsened in the areas where this draconian law is in force. This Act has also created a rift between the people of the area and the armed forces due to the abuse of power by the forces. The prime purpose for enacting such a law was to maintain law and order and protect the life of the innocent. But the abuse of the power has further threatened the life of the innocent and resulted in various atrocities.
In conclusion the AFSPA needs to be revoked to protect the interest of human rights and if it cannot be revoked, it must at least be amended to bring about a system of checks and balances and accountability for extreme acts of violence and creating a situation of terror done by the military forces. The Act must be upgraded to provide limited power to the armed forces to deal with the law and order problem.