R.L.E.KINTERNSHIP PROJECT

Armed Force SpecialPowers Act

IntroductionThe Armed Forces Special Power Act is the most disputed act in our country. This act faced much opposition and is considered as the most arbitrary act by some politicians and jurists. But without analyzing the act and understanding the situations of a particular region one cannot blame an act for its incompetency or its arbitrariness. Only political gain cannot be a fact for banishing of an act. This act is very short and has very simple statutes regarding the powers of the armed forces in the disturbed region. This act equips the armed force personnel with strong and affirmative powers so as to maintain peace and political stability in a particular region. But before discussing further about this act we need to understand the aspects relating to its origin and its history.

Origin and HistoryThe origin of the act dates back to the colonial times of the British India who imposed it to crush the ‘Quit India’ Movement. It is the Indian form of the Armed Forces Special Powers Ordinance, 1942enacted by the British to brutally crush the Indian struggle for independence in the motion of the widespread ‘Quit India’ Movement of 1942.The Ordinance was given by Lord Linlithgow, the then Viceroy and Governor General of British India on the 15th August 1942. History shows what followed after the passing of the Ordinance and how the Indian movement was brutally suppressed.  

CriticismThe procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the procedure prescribed by a law which curtails or takes away the personal liberty guaranteed by Article 21 is reasonable considerations like the provision for a full-dressed hearing as in a Courtroom trial, but in the context, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with. Secondly, even the fullest compliance with the requirements of Article 21 it is not the debate’s end because, a law which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty guaranteed by Article 21 has still to meet a possible challenge under other provisions of the Constitution like, for example, Articles 14 and 19.

The Armed Forces Special Powers Act, 1958, is a direct assault on the legal interpretation of fundamental rights which constitutes a cardinal principle of Indian jurisprudence. Under the Act, in place currently in the Northeast states and Jammu and Kashmir, powers vested with the armed forces are neither fair, nor just and reasonable. Maneka Gandhi vs. Union of India, Supreme Court, 1978

Human Rights ConcernThe Act empowers the central government and the governor of a state to declare any area within their territory as ‘disturbed’ based on their judgment of “disturbed or dangerous situation” warranting use of armed forces. Upon such a declaration, the armed forces have the power to shoot on sight, even to kill, any person believed to be violating existing laws and order prohibiting assembly of more than five persons (Section 4(a)) after giving “such due warning,” arrest any person without warrant, even on the basis of reasonable suspicion of having committed a cognizable offence (Section 4(c)), use such force as necessary to effect arrest, and enter and search any premise without warrant (Section 4(d)). Worse, these powers are provided without adequate safeguards and complete immunity is given to armed forces for the exercise of the powers (Section 6). Not a single offence is defined in the Act and yet such wide discretion is given to the armed forces in such areas.

Political OpinionsAlmost all the political parties which have their interests in the state of Jammu and Kashmir are completely against this act. Though there are only political interests involvedOmar Abdullah, the chief minister of J&K, has been very forthright about his government’s desire to revoke the law from the “Srinagar, Budgam, Samba and Kathua districts of the state” because the army has not been conducting operations in these districts for a long time and the districts are “almost militancy free” The chief minister informed the legislators that no formal recommendation had been sent in this regard to the central government, although, in view of the powers vested in the governor, his government was in a position to get it revoked. While accepting the difference of opinion with the army on the issue of revocation, Abdullah also expressed the desire of his government to revoke all laws from the state that “had lost their relevance”.

Finally he added that the revocation could not be linked with the maintenance of law and order, since the AFSPA was meant to combat militancy, which had come down to a mere five per cent of 2002 levels. In support of his stand, the UN Special Reporter on Extrajudicial, Summary or Arbitrary Executions, Christ of Heyns, on March 30, 2012, also called for the repeal of AFSPA, saying that: “AFSPA allows the state to over ride rights. Such a law has no role in a democracy and should be scrapped.”3 The Justice Jeevan Reddy Committee, has also recommended that the Act be revoked.

The army however has a different view. The former chief of army staff, Gen V K Singh emphasized that the AFSPA, was a “functional requirement” of the army. In view of the various shades of opinion IDSA undertook a series of discussions, based on different perspectives of the ongoing debate, in order to arrive at an informed understanding of the issue. The topics included: the historical backdrop; region specific views from J&K and Manipur; the human rights and international humanitarian law perspective; the army’s viewpoint; the legal aspect; and the general perceptions regarding AFSPA.

Humanizing AFSPAUse the tool of court of inquiry for prompt and transparent investigations

1. Obligatory to convene inquiry in all cases of civil deaths, grievous injury or allegations sexual harassment etc. Do so within 72 hours.2. Co-opt a civil official.3. Woman officer to be a member/in attendance.4. Venue to be easily accessible to local public.5. Videotaping off all military operations for transparency.

ConclusionThe Armed Forces Special Powers Act is a necessary devil. This act is necessary to maintain the political stability of a particular state. This act also ensures the integrity of India. Many politicians oppose this act only to achieve their political goals. Giving powers to the armed force never mean that this will make them arbitrary in nature. It is evident from cases that only due to the actions of some errant officers the image of the Indian Armed Forces is tarnished. The Indian Armed Force is considered as an elite force with defined ethics and strict rules and regulations. In case of arbitrary exercise of power the forces have well equipped internal legal system to take strong actions against convicted officers. To maintain stability in the political system and counter terrorism activities this act is necessary to stay in action with its full powers.

BibliographyWebsites

indianarmy.nic.in/Site/RTI/rti/MML/MML_VOLUME_3www.hrdc.net/sahrdc/resources/armed_forces.htmtimesofindia.indiatimes.com/topic/AFSPAwww.lokniti.org/afspa.phphrln.org/hrln/publicationswww.dnaindia.com www.assamtribune.comwww.indianexpress.comwww.greaterkashmir.comwww.igovernment.in/site/special-powers-act-tripuraextended 

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