AFSPA – A Necessity or a Misused Power?

What is AFSPA?

AFSPA - Armed Forces (Special Powers) Act is an Act of the Parliament of India which was passed on 11 September 1958. It is an Act with just six sections granting special powers to the Indian Armed Forces in what the act terms as "disturbed areas".[1] Under this designated disturbed area all security forces and security personnel are given unregulated and unaccounted power to carry out their operations. Even a non-commission officer has the power to detain and shoot to kill based on mere suspicion that it is necessary to do so in order to maintain “law and order in the disturbed area[2]”.

Violation of Human Rights?

AFSPA has been implemented in many states and its effect in each state varies accordingly. But the fundamental issue of human rights abuse and violation of Article 21 and 22 remains the same.[3] Article 21 of Indian Constitution which declares right to life as a fundamental right[4] is violated by section 4(a) of the AFSPA, which grants power to the armed forces to shoot to kill in law enforcement situations without regard to international human rights law restrictions on the use of lethal force. 

The Article 22 of Indian Constitution states that no person arrested can be detained in custody without being informed and also it is requisite that any person arrested is to be produced before the nearest magistrate within a time period of twenty-four hours of arrest.[5] On the face of it, AFSPA leads to arbitrary detention which is clearly the violation of the said principles in Article 22. The right to life and liberty under Article 21 of the Constitution is violated by section 4(c) of the AFSPA, which fails to protect against arbitrary arrest by allowing soldiers to arrest anyone merely on suspicion that a “cognizable offence” has already taken place or is likely to take place in the future.

 

A Boon or a Bane?

There have been a number of instances of misuse of the power provided by virtue of the Act. The three civilians of Baramulla (J&K) were shot by Indian army at Machil sector in Kupwara district of J&K on 30th April, 2010 and were framed as ‘foreign militants'. However, later with the protest and inquiry, it was established that these persons were civilians and were called by the army to provide them jobs of porters and later were killed in a staged encounter. On 29th May 2009 in Shopian (J&K), two women named Aasia and Neelofar went missing from their orchard on their way back to home. Their dead bodies were found the next day. The people alleged that it was a case of murder and rape by security forces that were camped nearby.

The J.S. Verma committee while looking into legal reforms related to violence against women called for a review of the AFSPA. The committee noted that “impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimised by the AFSPA” and “women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country”.[6] While implementation, the Central government had taken into consideration many of the Verma committee suggestions and adopted the recommendations subsequently in an Anti-Rape bill. But, sadly, it left out the suggestions related to AFSPA. As per the criticisms to AFSPA, we know that there is a need to take some steps towards the prevention of misuse of the Act so that the purpose behind the enactment of the Act is not defeated. Reviewing the Act and making modifications to it is the need of the hour to stop atrocities against women, perpetually happening in the areas where AFSPA prevails.

 

References:

[1] South Asia Human Rights Documentation Centre (SAHRDC), Armed Forces Special Powers Act - A study in National Security tyranny, November 22, 1995 (October 5, 2017 10:00 pm), http://www.hrdc.net/sahrdc/resources/armed_forces.htm.

[2] Ramakrishnan M, AFSPA explained: How does it work exactly? , L.M, May 28, 2015.

[3] Armed Forces (Special Powers) Act 1958, Acts of Parliament, 1958 (India).

[4] INDIA CONST. art. 21.

[5] INDIA CONST. art. 22.

[6]Report on the committee on amendments to Criminal Law, PRS India, (September 12 2018, 10:00am) http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.

 

-Divya Priyank

Third Year BBA LLB

Posted in Blog.

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