The Armed Forces (Special Powers) Act (AFSPA), was passed on September 11, 1958, by the Parliament of India.[1] It conferred special powers upon armed forces in what the act calls "disturbed areas" in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.[2]
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The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:
In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the CRPF. Continued unrest, like in the cases of militancy and insurgence, and especially when borders are threatened, are the armed forces resorted to.[3]
By Act 7 of 1972, this power to declare areas as being disturbed was extended to the central government. [4]
In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like by local leaders which led to the armed forces' presence in the first place.[3][5]
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:
It gives Army officers legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. For declaring an area as a 'disturbed area' there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary .[6]
The Act has been employed in the Indian administrated state of Jammu and Kashmir since 1990.[2] It was withdrawn by the Manipur government in some of the constituencies in August 2004 in spite of the Central government not favouring withdrawal of the act.
In December 2006, responding to what he said were 'legitimate' grievances of the people of Manipur, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report, which is believed to have recommended the Act's repeal.[7]
Violence has increased in the past two decades since enforcement of the Act.[8] The state has created a "Gallantry Awards" pool for the arms forces which are awarded for elimination of insurgencies and conduction of operations. The term 'encounters' is used by the security forces to describe confrontations where it is deemed appropriate, under the provisions of the act, to employ violence.[8]
Protests began in Kashmir valley on Sep 10, 2010, on the occasion of Eid and turned violent on Sep 11, the anniversary of the controversial act. Indian Goverenment is considering partial withdrawal of the act.
In 2004, in the wake of intense agitation [9] that was launched by several civil society groups following the death of Thangjam Manorama, while in the custody of the Assam Rifles and the indefinite fast undertaken by Irom Sharmila, Union Home Minister Shivraj Patil visited Manipur and reviewed the situation with the concerned state authorities. In the same year, Prime Minister, Manmohan Singh assured activists that the central government would consider their demand sympathetically.
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 panel was given the mandate of "review[ing] the provisions of AFSPA and advis[ing] the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act."
The Reddy committee submitted its recommendations on June 6, 2005. However, the government failed to take any concrete action on the recommendations even after almost a year and a half. The then Defence Minister Pranab Mukherjee had rejected the withdrawal or significant dilution of the Act on the grounds that “it is not possible for the armed forces to function” in “disturbed areas” without such powers.
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. On November 2, 2000, ten people were killed when a paramilitary force opened fire at a bus-stop near Malom in Manipur. Most of those killed were women and students. The firing was followed by a brutal combat operation also. A young lady, too shocked at the anarchical act of the state agencies, decided to begin a fast unto death demanding the repeal of the Act responsible for such brutality on the part of the state – the Armed Forces (Special Powers) Act, 1958. Thus began the fight of Irom Sharmila Chanu, the Iron Lady from Manipur whose fast completed 10 years this year.
The troops of 8th Assam Rifles were deployed in Malom to counter the ‘insurgent’ attack in the area. Those killed at the Malom massacre were L Sana Devi (60), G Bap Sharma (50), O Sanayaima (50), K Bijoy (35) A Raghumani (34), S Robinson Singh (27), Ksh Inaocha (23), T Shantikumar (19), S Prakash Singh (18) and S Chandramani (17).
Though Sharmila began her marathon fast in protest, the investigation into the Malom massacre has still not yet been completed even after 10 years. Following a directive of the Gauhati High Court, Imphal Bench, in 2004 and 2005, the District and Session’s Judge is conducting an enquiry into the incident. On January 7, 2010, a team of the court led by Th Surbala, the District and Session’s Judge, Manipur East, conducted a spot inquiry at Malom and investigation is on into the facts and circumstances leading to the firing incidents.
Since November 2, 2000, Sharmila has been arrested under section 309 of IPC which punishes attempted suicide by a one-year imprisonment. She is released every year to be arrested again. A compartment in the Jawaharlal Nehru Hospital has become her virtual nest, where the poet in Sharmila pens her verses. She turned down many requests to end her fast and expressed her firmness to continue her fast till the Act is repealed. She has been awarded with many laurels for her nonviolent contribution towards the human rights movement in north east India.
When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards."[10]
The Attorney General of India responded that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a "war footing." He argued that the Indian Constitution, in Article 355, made it the duty of the Central Government to protect the states from internal disturbance, and that there is no duty under international law to allow secession.
The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination".[11]
The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is part of the problem.[12]
"This reasoning exemplifies the vicious cycle which has been instituted in the North East due to the AFSPA. The use of the AFSPA pushes the demand for more autonomy, giving the people of the North East more reason to want to secede from a state which enacts such powers and the agitation which ensues continues to justify the use of the AFSPA from the point of view of the Indian Government." - The South Asian Human Rights Documentation Centre[13]
A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by security forces against civilians in Manipur since the passage of the Act.[14] The report states that residents believe that the provision for immunity of security forces urge them to act more brutally.[14] The article, however, goes on to say that repeal or withering away of the act will encourage insurgency.
[15] In addition to this, there have been claims of disappearances by the police or the army in Kashmir by several human rights organizations.[16][17]
Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by Indians such as "extra-judicial executions", "disappearances", and torture;[18] the "Armed Forces Special Powers Act", which "provides impunity for human rights abuses and fuels cycles of violence. The Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such powers because the army is only deployed when national security is at serious risk from armed combatants. Such circumstances, they say, call for extraordinary measures." Human rights organizations have also asked Indian government to repeal[19] the Public Safety Act, since "a detainee may be held in administrative detention for a maximum of two years without a court order.".[20]
The act has been cricised by many non governmental organisations and human rights activists. In J&K only, hundreds of people have been killed by security forces. Many cases of fake killings, binded labors, rapes and other atrocities have come in light.
Activists who are working in J&K for peace and human rights include names of Madhu Kishwar, Ashima Kaul, Ram Jethmalani, Faisal Khan, Ravi Nitesh, Swami Agnivesh, Dr. sandeep Pandey and many others. They all accept that people to people communication and development of new avenues are the only way for peace, however laws like AFSPA are continuously violating human rights issues there.
The Wikileaks diplomatic cables have recently disclosed that Indian government employees agree to acts of human rights violations on part of the Indian armed forces and various paramilitary forces deployed in the north east parts of India especially Manipur. The violations have been carried out under the cover of this very act. Governor S.S. Sidhu admitted to the American Consul General in Kolkata, Henry Jardine, that the Assam Rifles in particular are perpetrators of violations in Manipur which the very same cables described as a state that appeared more of a colony and less of an Indian state.[21][22]
Earlier leaks had also stated that International Committee of the Red Cross (ICRC) had reported to the United States diplomats in Delhi about the grave human rights situation in Kashmir which included the use of electrocution, beatings and sexual humiliation against hundreds of detainees. This act is in force in Kashmir since 1990.[23]