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ARMED FORCES (SPECIAL POWERS) ACT

ARMED FORCES (SPECIAL POWERS) ACT

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Recently six soldiers has been awarded life sentences by a general court martial in the 2012 Machil fake encounter case.

The Army opted for a court martial in this case after the Supreme Court ruled in an earlier case of ‘encounter’ in Pathribal that unlike civilian investigating agencies, which under AFSPA required prior sanction to prosecute its personnel, the Army was free to try its members by a court martial.

This is significant in the larger context of efforts to make the armed forces answerable for their actions in conflict zones, and to force the withdrawal of special laws that grant impunity to security personnel in such areas.

Analysis

The Armed Forces (Special Powers) Act was enacted in 1958 to bring under control what the government of India considered ‘disturbed’ areas.

Assam, Nagaland, Manipur (except the Imphal municipal area), Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam), Meghalaya (confined to a 20-km belt bordering Assam) and Jammu and Kashmir.

How does one officially declare a region to be ‘disturbed’?

Section (3) of the AFSPA Act empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the center has the authority to send in armed forces for civilian aid.

Power to Declare Areas to be Disturbed Areas – If, in relation to any State or Union territory of which the Act extends, the Governor of that State or the Administrator of that Union territory or the Central Government, in either case, if of the opinion that the whole or any part of such State or Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers is necessary, the Governor of that State or the Administrator of that Union territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.

Once declared ‘disturbed’, the region has to maintain status quo for a minimum of three months, according to The Disturbed Areas (Special Courts) Act, 1976.

 

Special Power of the Armed Forces

Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-

  • if he is of opinion that it is necessary so to do for the maintenance of Public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

  • If he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;

  • Arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest;

  • Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined

Arrested Persons to be made over to the Police – Any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

Protection to Persons acting under Act – No persecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Need for AFSPA

The annulment of the law and the resultant lack of security cover would adversely affect the governance and development capacities in the insurgency affected states, and the eventual redress of local grievances’.

It would motivate the insurgent leadership, field cadres and their over ground supporters to engage in reckless damage to public life and property.

It would dilute the capacity of an important instrument of the state – the armed forces – to tackle the security challenges faced by the country.

Absence of such a legal statue would adversely effect the organizational flexibility of the security of state. Which would result in that a soldier cannot fire upon a terrorist, can’t take necessary action to destroy a hideout and can’t arrest anyone he suspects to be nations threat.

Army circles are worried that soldiers and officers will be dragged to civilian courts and that frivolous cases will be filed against them.

Criticisms of AFSPA

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or her personal liberty except according to procedure established by law.”  Section 4(a) of the AFSPA which grants armed personnel to shoot and kill. This is clearly violating article 21 of our Constitution.

Section 6 of the AFSPA provides then with absolute immunity for all atrocities committed under the AFSPA. The armed forces personnel conduct themselves as being above the Law. When they are tried in army courts, the people are not informed about the proceedings.

No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central government against any person.

AFSPA’s imposition in Arunachal was bitterly criticized as the federal government had not consulted the state government before declaring it a “disturbed area.” It drew attention to the lack of clarity as to what constitutes a “disturbed area” and the rather arbitrary manner in which AFSPA is being imposed in the country.

Some of the critics of AFSPA are of the view that despite being in force for several decades this act has been unsuccessful to quell insurgency completely.

Question:

What is AFSPA? critically analyse and justify the rationale to provide immunity to army in disturbed area.

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