IS TIME TO CHECK OUT THE ARMED FORCES SPECIAL POWERS ACT? Advocate Ms Pinny Pathak BASICS OF LAW Thu, Apr 18, 2019, at ,12:50 PM The Armed Forces Special Powers Act (AFSPA), widely known as the draconian Act, was enacted on 11th September 1958. It was enacted in order to bring under control what the government considered ‘disturbed areas’ basically the conflict-hit areas. It was widely agreed amongst the masses that any places which the government and it police machinery cannot control will be declared as ‘disturbed areas’ thereby calling upon additional forces to control the circumstances. AFSPA was first implemented in the states in Northeast, and then in Punjab. In September 1990, Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which came into force from 5th July, 1990 and was applied retrospectively. With passing of more than 10 years question arises- Why is the Act still applicable in certain States? Why are the cries of aam aadmi of revoking the Act not heard by the government? Who should be held accountable for the mass violations of human rights of people? Isn’t AFSPA a complete disregard to the fundamental and Constitutional Rights of a person? And importantly is the government giving a message through this Act that people who don’t obey and create ruckus will be made to obey and “controlled” i.e., in simple language what cannot be achieved directly will be achieved indirectly? A brief overview of AFSPA, it consists of only 8 sections with Section 3 and 4 being the most important ones. Section 3 talks about Powers to declare areas to be disturbed and Section 4 talks about Special Powers to Armed Forces. The procedure of officially declaring the region/ area disturbed is laid down under Section (3) of the AFSPA Act which empowers the governor of the state or Union territory to issue an official notification on The Gazette of India, following which the Centre has the authority to send in armed forces for civilian aid. 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. Under this Act the armed forces have the authority to prohibit gathering of five or more persons in an area. In some cases the forces can open fire on the disturbing factors after giving due warning if found any suspicious person. Army and armed forces are sent in the area only after the implementation of this law. The powers given to the Armed Forces under the ASFP Act are as under:- Any suspect can be arrested without a warrant. Armed forces can search any house without any warrant and required force can be used to search it. Under this law the armed forces have the authority to prohibit gathering of five or more persons in an area. In some cases the forces can open fire on the disturbing factors after giving due warning if they found any suspicious person. If a person is repeated offender and tries to disturb the peace of the area, then armed forces are entitled to use force till his death. If the Armed Forces suspect that any militant or offender is hiding in any house/building then the site or structure can be destroyed by the forces. Any Vehicle can be stopped and searched. Even in the case of wrongful action by the armed forces, legal action is not taken against them. The States currently under the Act are Mizoram, Nagaland, Manipur, Assam, Jammu & Kashmir and parts of Arunachal Pradesh. The Act was revoked from the State of Meghalaya from 1st April, 2018. It was considered necessary by the government in order to control law and order issues in areas considered to be as ‘disturbed’ “by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities." Of all the arguments in support or favour of AFSP Act, the predominant once are- the armed forces are in better position to protect the boundaries of the country and in its absence the armed forces will not be able to tackle the insurgent inside the country However the criticisms levied against the AFSPA is much more- it is a blatant violation of human rights, constitutional and fundamental rights, number of cases where the oppressive powers given to the armed forces have been misused, where the armed forces have conducted fake encounters and sexually exploited women in the disturbed areas and that where there is democracy there is no need to run the country on the basis of bullet. There is no doubt about the misuse of the Act and the various reports and cases in court speak for itself. It would not be wrong to say that implementation of this Act has in a way increased the unlawful and illegal acts in the State. The people live in fear. They have developed what is termed as fear psychosis against the armed forces. This Act is in violation of the various international conventions and treaties. It is strange as whenever people raise voices on revocation of the Act the government suddenly comes up with various reasons and unending explanations of the importance of the Act. This behaviour of the government depicts that it is desperate to control the State. And it is high time that this be stopped and the people given their rights. Inquiry should be initiated into the cases of human rights violations and fast track such cases for speedy delivery of justice. It should also be ensured that victims are provided adequate relief and compensation. The ambiguity in the terms like ‘dangerous’, ‘disturbed’ and ‘land forces’ and other definition under the Act are open ended and cover wide aspects. They need proper definition, clarification backed with sound reasoning. Countries do face internal problems. This doesn’t mean that the government should raise arms or authorize the power to someone else. As widely accepted in law one cannot do an act legally which is illegal. Therefore there should be internal security without compromising with the rights of the citizens. And it is the responsibility of the Government to protect the people from abuse of their human rights, including those which have been committed by the military personnel.