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ARMED FORCES SPECIAL POWERS ACT (AFSPA)
Background
Armed Forces are deployed in counter
insurgency / terrorist operations when all other forces available to the State
have failed to bring the situation under control. Armed forces operating in
such an environment require certain special powers and protection in the form
of an enabling law.
Legal
Aspects
The Armed Forces Special Powers Act
(AFSPA) was enacted by the Parliament and confers certain special powers on
members of the Armed Forces (military forces, air forces operating on ground as
land forces and any other armed forces of the Union (CRPF, BSF, ITBP etc)for
carrying out proactive operations against the insurgents in a highly hostile
environment. AFSPA comes into effect only in Disturbed Areas. Power to declare
an area as Disturbed Area is vested with the Central and the State Governments.
The essence of the important sections of AFSPA is as under:-
(a) Section 3.
It lays down the authority which has power to declare areas to be disturbed.
These authorities are the Central and the State Governments.
(b) Section
4. It gives the Army powers to search premises and make
arrests without warrants, to use force even to the extent of causing death,
destroy arms / ammunition dumps, fortifications/ shelters / hideouts and to
stop, search and seize any vehicle.
(c) Section
6. It stipulates that arrested persons and seized property
is to be made over to the police with least possible delay.
(d) Section
7. It offers protection of persons acting in good faith in
their official capacity. Prosecution is permitted only after sanction of the
Central Government.
An examination of the various powers available
to the Police Authorities under the provisions of the CrPC vis-a-vis those
available to Armed Forces under AFSPA would reveal that the Police Authorities still
enjoy more comprehensive and wider powers relating to arrest, search, seizure,
summoning of witnesses, preventive detention etc than the powers enjoyed by the
Armed Forces.
AFSPA
vs CrPC. Section 45 of the CrPC disallows arrest of public
servants however Section 45 of the CrPC is not applicable in the State of
J&K where the Ranbir Penal Code is applicable and ipso facto the persons of
Armed Forces can be arrested for any perceived excesses, if AFSPA is not in
vogue.
The Act in general and Sections 3, 4
& 6 thereof in particular, came up for scrutiny before a Constitution Bench
of the Apex Court in a case titled ‘Naga People’s Movement of Human Rights Vs
UOI’. The five-judge Constitution Bench dealt with the challenge to the
legality of deployment of the Armed Forces in aid to civil power. The Court
unambiguously ruled that AFSPA cannot be regarded as a colourable legislation
or a fraud on the Constitution. The Apex Court considered and opined that the
conferring of powers vide Section 4 of AFSPA could not be held arbitrary or
violative of Article 14, 19 or 21 of the Constitution.
Safe
Guards
Adequate checks and safeguards are built in the AFSPA to prevent its misuse.
The Do’s and Dont’s issued to the units, having found approval of Apex Court,
have acquired legal status and are binding on the troops.
HR Record of the Indian Army. The provisions of AFSPA have NOT been misused and
is evident from the HR Record of the Indian Army during the last two decades.
Details of allegations of HR violations of Indian Army are as under :-
- HR Cases/complaints received – 1618
- (b) Cases Investigated – 1533
(c)
No of allegations under investigation – 85
(d) Cases found true – 55 (3.6%)
(e) Cases found false – 1478 (96.4%)
(f) No of persons punished – 129
(g) No of cases awarded compensation – 35
The above punishments were awarded by the Army without any prosecution sanction from the MoD. Thus AFSPA is NOT a draconian law as purported to be.
Retention of AFSPA
The relative peace prevailing in any area cannot be the only criteria for the removal of AFSPA. The following aspects also need to be factored in and a comprehensive assessment made before the dilution/removal of AFSPA:-
(a) Current Situation.
While there may be a comparative decline in terrorist violence, number of
terrorists killed and reduction in number of successful infiltration by
terrorists, as long as there is no change in the ideology and the factors that
aid and support proxy war the removal of an enabling legislation like AFSPA may
be counter productive.
(b) The
Emergence of Sanctuaries. Lifting of AFSPA from certain
areas may result in terrorists seeking shelter in such areas and rebuilding
their bases. Eviction of terrorists from such built up areas sanitised after
sacrifices by the army and police forces is likely to result in civilian
causalities, damage to civilian property and a renewed cycle of violence.
(c) Military
Installations and Lines of Communication. Army garrisons /
strategic assets are spread over in population centres. Even in insurgency
prone areas, any action taken by the Army personnel in these areas without an
enabling legislation which does not confer immunity from arrest will further
complicate the issue.
(d) Intelligence
Bases. De-notification of AFSPA will render the painstakingly
established sound intelligence bases untenable.
(e) Legal
Aspects. Any reaction to terrorist action in Non-AFSPA
areas would draw the Army into protracted legal battles on every incident.
(f) Restoration
of AFSPA. Even if situation worsens in areas where AFSPA
has been revoked, it is unlikely that the political decision can be reversed
easily to re-invoke the Act.
