Armed Forces Special Powers Act (AFSPA) – The need to Change

Armed Forces Special Powers Act (AFSPA) came into effect on September 11, 1958. The Act confers special powers to the Army to arrest, shoot or kill in what are called “disturbed areas”. States of North-East – Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram and Nagaland come under its purview. Later in July 1990, the Act was extended to the Kashmir valley, when the insurgency was at its peak.

Tracing the History:

To counter the insurgency of secessionist groups who threaten the fabric of the State and demand Independence, the Act was introduced in North-East to give immunity to the armed forces working in hostile environments’. In 1958, it was introduced in Nagaland to combat the Naga movement. In Manipur, which has long been the centre of storm, the Act was introduced in September 1980 when there were four opposition groups.

In 1990, the twin districts of Rajouri and Poonch, along with the Kashmir valley, were brought under AFSPA.

The Act:

The Act states that-

“Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law, against an assembly of five or more persons, or possession of deadly weapons.”

“To arrest without a warrant, anyone who has committed certain offences or is suspected of having done so.”

“To enter or search any premise in order to make such arrests.”

The Draconian implementation of the Law:

The Army has made use of the Act to the hilt and has used it in countering terrorism but there have been many instances of excesses by the Defence Forces. One fresh instance which came into light was the fake encounter of three young men in their twenties on April 30, 2010.

Major Opinder Singh of 4 Rajputana Rifles, along with his few soldiers, registered an FIR about an infiltration bid from Pakistani side of the LOC in which all three of them were shot on the head. Later it got unearthed that they were the inhabitants of Nadihal village and they were brought to the town by Special Police Officer (SPO), Bashir on the pretext of giving them work. He lured them and handed them over to Major Opinder Singh. This is just the tip of the iceberg. There have been many instances in the valley and the North-East where fake encounters and many excesses have been unearthed.

A report by the Institute for Defence Studies and Analysis pointed to multiple occurrences of violence by security forces against civilians in Manipur since the inception of the Act.

Facing the wrath and the legalities associated:

Many Human Rights groups have protested and have categorically asked the Centre to repeal the Act. In 1991, United Nations Human Rights Committee (UNHRC) asked India about the validity of AFSPA and how could it be justified in the light of Article 4 of the International Covenant on Civil and Political Rights (ICCPR). The Attorney General of India in his response stated that according to Article 355 of Indian Constitution, it’s the duty of the Centre to protect the State from internal disturbance and that there is no duty under International law to allow secession.

Irom Sharmila Chanu:

The name is synonymous with the struggle for the annulment of AFSPA.

On November 1, 2000 in Malom (Imphal), ten people were gunned down at a bus station by the Assam Rifles’ men (Paramilitary force). It was later revealed that all ten of them were innocent people including women and children. Just three days after the encounter, Irom Sharmila went on a fast demanding revocation of the Act. On November 6, 2000, she was arrested by the Police and charged with attempt to commit suicide. Till date she is on fast and is forcibly fed through Nasogastric Intubation. She has garnered attention from across the world by her sheer determination and grit.

Government in a fix:

In 2004, the Government constituted a five member commission under the Chairmanship of Justice B.P Jeevan Reddy, former judge of the Supreme Court, to look into the grievances of the victims and the feasibility of AFSPA.

On June 6, 2005, the committee made their recommendations by stating that AFSPA needs to be annulled. The report stated that the Act has become a symbol of oppression and is inciting violence due to its bestial nature.

In December 2006, Prime Minister Manmohan Singh declared that the Act would be amended to make it more humane on the basis of the recommendations. But till date no amendments have been made.

In 2009, UN commission for Human Rights explicitly stated that the law is outdated and colonial and has no place in the 21st century.

Where do we stand?

Recent spurt of violence in the Kashmir valley has shown the discontent and unrest among the locals. General V.K Singh has not minced his words and has looked down upon the changes recommended to the AFSPA. The Government is in a quandary and is looking at its options.

In my opinion some changes should definitely be made, if not the law repealed altogether.

The power to kill or shoot under section 4(a) must by all means be revoked.

Section 5 should clearly state that persons arrested under the Act are to be handed over to the Police and made to appear before the Magistrate within 24 hours.

Section 6 needs to be overhauled, so that the individuals who suffer wrong implications must be able to prosecute the wrong-doers.

But to implement all these, the Defense Forces need to be taken into confidence. Let get this clear- Our Defence Forces are their job well and doing everything to establish peace and quell the insurgency. The excesses do happen and it does tarnish the image of forces but labeling the forces as corrupt and debauched is naive. Tread the path cautiously and work towards maintaining calm and peace. Five decades of AFSPA and the things are as they were, if not worse. It’s time to make changes and move forward.

Aatish Sharma

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