AFSPA:
It is an Act empowering armed forces to deal
effectively in ‘Disturbed Areas’. Any area which is declared ‘Disturbed’ under
the disturbed areas act enables armed forces to resort to the provisions of
AFSPA.
Who declares an area as disturbed?
The choice of declaring any area as
‘disturbed’ vests both with state and
central government.
Special powers provided to armed forces:
After an area comes under the ambit of AFSPA,
any commissioned officer, warrant officer, non-commissioned officer or another
person of equivalent rank can use force for a variety of reasons while still
being immune to the prosecution.
Ambit:
·
The act was passed on 11 September 1958 by
the parliament of India to provide special legal security to the armed forces
carrying out operations in the troubled areas of Arunachal Pradesh, Assam,
Meghalaya, Manipur, Mizoram, Nagaland, Tripura (seven sisters).
·
In
1990 the act was extended to the state of Jammu and Kashmir to
confront the rising insurgency in the area.
·
In Manipur, despite opposition from the
Central government, state government withdrew the Act in some parts in Aug,
2004.
The government can declare AFSPA in the
following conditions:
·
When the local administration fails to
deal with local issues and the police proves inefficient to cope with them.
·
When the scale of unrest or instability
in the state is too large for the police to handle.
Legal provisions of AFSPA:
·
In an area declared ”disturbed” an army
officer is legally free to carry out following operations:
·
Fire upon or otherwise use force, even
to the causing of death, against any person who is acting in contravention of
any law” against “assembly of five or more persons” or possession of deadly
weapons.
·
Destroy any shelter (private or govt.)
from which armed attacks are made or likely to be made or attempted to be made.
·
Arrest any person without warrant who
has committed a cognizable offence or against whom a reasonable suspicion
exists that he has committed or is about to commit a cognizable offence.
·
Enter and search, without warrant, any
premises for purpose of arrest or to recover any person, arms, and explosives.
·
To search and seize any vehicle suspected
to be carrying an offender or any person against whom any reasonable suspicion
exists that he has or is about to commit an offence.
·
To provide legal immunity to the army
personnel found involved in any violation or ethical breach i.e., they cannot
be sued or prosecuted.
Why do armed forces
need AFSPA?
·
The forces are aware that they cannot
afford to fail when called upon to safeguard the country’s integrity. Hence,
they require the minimum legislation that is essential to ensure efficient
utilization of combat capability. This includes safeguards from legal
harassment and empowerment of its officers to decide on employment of the
minimum force that they consider essential.
·
The absence of such a legal statute
would adversely affect organizational flexibility and the utilization of the
security capacity of the state. This would render the security forces incapable
of fulfilling their assigned role.
ü Common people see it as ‘Right to
Kill’ Act. Since its inception many Human Rights organizations and civil
societies have been opposing it for the following reasons:
ü It makes no distinction between a
peaceful gathering of five or more people and a berserk mob.
ü The law also states that, “no
prosecution can be initiated against an officer without the previous sanction
of the Central government”.
ü The decision of the government to
declare a particular area ‘disturbed’ cannot be challenged in a court of law.
ü In 2005, the Jeevan Reddy
Commission said that AFSPA should be repealed and the clauses that are
required should be included in other Acts.
