Armed Forces (Special Powers) Act, 1958

The Armed Forces (Special Powers) Act (AFSPA), was passed on September 11, 1958, by the Parliament of India. It is a law with just six sections granting special powers to the armed forces in what the act terms as "disturbed areas" .The Act has been at the heart of concerns about human rights violations in the regions of its enforcement, where arbitrary killings, torture, cruel, inhuman and degrading treatment and enforced disappearances have happened.

History
The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on August 15, 1942 to suppress the Quit India Movement. Modeled on these lines, four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces)Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas(Special Powers of Armed Forces) Ordinance were invoked by the central government to deal with the internal security situation in the country in 1947 which arouse out of Partition of India .These Ordinances were replaced by the Armed Forces (Special Powers) Act, 1948. Though the Act was a temporary statute enacted for a period of one year, it continued till it was repealed in 1957.

Armed Forces Special Powers (Assam and Manipur )Act, 1958
In 1951, the Naga National Council(NNC) claimed to have conducted a ‘free and fair plebiscite’ in which about 99 per cent Nagas reportedly voted for a ‘Free Sovereign Naga Nation’. There was a boycott of first general election of 1952 which later, extended to boycott of government schools and ofﬁcials. In order to deal with the situation, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels. When the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, providing a legal framework for the paramilitary forces and the armed state police to combat insurgency in the region.But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council(NNC) formed a parallel government "The Federal Government of Nagaland" on March 22, 1956. The state administration found itself incapable of handling the situation and asked for central assistance. In response to this continued unrest in the North-Eastern, that spilled over into the state of Manipur,  The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President Dr. Rajendra Prasad on the 22nd May, 1958. Section 3 of the Ordinance empowers the Governor of Assam and the Chief Commissioner of Manipur to declare the whole or any part of Assam or the Union territory of Manipur (Manipur was a Union Territory at the time and later in became a state in 1972 )as the case may be, to be a "disturbed area". Once the area was declared as "disturbed area" in the Official Gazette, any Commissioned Officer, Warrant Officer, non-commissioned officer or any other person of equivalent rank in the armed forces may exercise, in the disturbed area, the powers conferred by section 4 and 5 of the Ordinance. It was replaced by Armed Forces (Assam and Manipur) special Powers Act, 1958 on September 11, 1958.

Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972
The Armed Forces (Assam and Manipur) Special Powers Act,1958 empowered only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State of Union Territory as 'disturbed'.By Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972, such a power was conferred concurrently upon the Central government.The reason for conferring such a power as per "Objects and Reasons'" appended to the Bill was that, "Keeping inview the duty of the Union under Article 355 of the Constitution,inter alia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as 'disturbed', to enable its armed forces to exercise the special powers". The territorial scope of Act also expanded to the five states of the North-East, - Assam, Manipur,  Meghalaya, Nagaland, Tripura and to the Union Territories Arunachal Pradesh and Mizoram. In addition, the words , "The Armed Forces (Assam and Manipur) Special Powers Act, 1958" were substituted by  "Armed Forces (Special Powers) Act, 1958", getting the acronym of AFSPA, 1958.

The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
The central government enacted the Armed Forces(Punjab and Chandigarh) Special Powers Act on October 6, 1983, repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983, to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh. The Act was enforced in the whole of Punjab and Chandigarh on October 15, 1983.The terms of the Act broadly remained the same as that of the Armed Forces Special Powers Act (Assam and Manipur) of 1972 except for two sections, which provided additional powers to the armed forces. The Act was withdrawn in 1997, roughly 14 years after it came to force.
 * 1) Sub-section (e) was added to Section 4 stipulating that any vehicle can be stopped, searched and seized forcibly if it is suspected of carrying proclaimed offenders or ammunition.
 * 2) Section 5 was added to the Act specifying that a soldier has the power to break open any locks “if the key there of is withheld”.

The Act
The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons: In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a 'disturbed area'. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.
 * Failure of the administration and the local police to tackle local issues.
 * Return of (central) security forces leads to return of miscreants/erosion of the "peace dividend".
 * The scale of unrest or instability in the state is too large for local forces to handle.

By Act 7 of 1972, the power to declare areas as being disturbed was extended to the central government.

In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theater. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like.

Armed Forces (Special Powers) Act
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:
 * After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order,


 * Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.


 * To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.


 * To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.


 * Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.


 * Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.


 * Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government's judgment on why an area is found to be disturbed subject to judicial review.


 * Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.

For declaring an area as a 'disturbed area' there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary.

The Jeevan Reddy Commission
In 2004, in the wake of intense agitation that was launched by several civil society groups following the death of Thangjam Manorama, while in the custody of the Assam Rifles and the indefinite fast undertaken by Irom Sharmila, Union Home Minister Shivraj Patil visited Manipur and reviewed the situation with the concerned state authorities. In the same year, Prime Minister, Manmohan Singh assured activists that the central government would consider their demand sympathetically.

The Central Government accordingly set up a five-member committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of the Supreme Court. The panel was given the mandate of "review[ing] the provisions of AFSPA and advise[ing] the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act."

The Reddy committee submitted its recommendations on June 6, 2005. In December 2006, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report.

United Nations view
When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards."

On 31 March 2012, the UN asked India to revoke AFSPA saying it had the no place in Indian democracy. Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions said "During my visit to Kashmir, AFSPA was described to me as 'hated' and 'draconian'. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well."

Non-governmental organizations' analysis
The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination".

The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is part of the problem.

A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by security forces against civilians in Manipur since the passage of the Act. The report states that residents believe that the provision for immunity of security forces urge them to act more brutally. The article, however, goes on to say that repeal or withering away of the act will encourage insurgency.

In addition to this, there have been claims of disappearances by the police or the army in Kashmir by several human rights organizations.

Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by police such as "extra-judicial executions", "disappearances", and torture; the "Armed Forces Special Powers Act", which "provides impunity for human rights abuses and fuels cycles of violence. The Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such powers because the army is only deployed when national security is at serious risk from armed combatants. Such circumstances, they say, call for extraordinary measures." Human rights organizations have also asked Indian government to repeal the Public Safety Act, since "a detainee may be held in administrative detention for a maximum of two years without a court order.".

Activists who are working in J&K for peace and human rights include names of Madhu Kishwar, Ashima Kaul, Ram Jethmalani, Faisal Khan, Ravi Nitesh, Swami Agnivesh, Dr. Sandeep Pandey and many others. They all accept that people to people communication and development of new avenues are the only way for peace, however laws like AFSPA are continuously violating human rights issues there.

United States leaked diplomatic cables
The Wikileaks diplomatic cables have recently disclosed that Indian government employees agree to acts of human rights violations on part of the Indian armed forces and various paramilitary forces deployed in the north east parts of India especially Manipur. The violations have been carried out under the cover of this very act. Governor S.S. Sidhu admitted to the American Consul General in Kolkata, Henry Jardine, that the Assam Rifles in particular are perpetrators of violations in Manipur which the very same cables described as a state that appeared more of a colony and less of an Indian state.

Earlier leaks had also stated that International Committee of the Red Cross (ICRC) had reported to the United States diplomats in Delhi about the grave human rights situation in Kashmir which included the use of electrocution, beatings and sexual humiliation against hundreds of detainees. This act is in force in Kashmir since 1990.

Santosh Hegde commission on Manipur encounter deaths
A high-power commission headed by the retired Supreme Court judge, Santosh Hegde was constituted in January 2013 to probe six encounter deaths in Manipur. The committee, comprising former Supreme Court judge Santosh Hegde, ex-CEC J M Lyngdoh and a senior police officer, has said in its report that the probe showed that none of the victims had any criminal records. The judicial commission set up by the Supreme Court is trying to make the controversial Armed Forces Special Powers Act (AFSPA) more humane, and the security forces more accountable. The committee has suggested fixing a time frame of three months for the central government to decide whether to prosecute security personnel engaged in extra-judicial killings or unruly behaviour in insurgency-hit regions.The Commission noted that AFSPA was an impediment to achieving peace in regions such as Jammu and Kashmir and the northeast.The commission also said the law needs to be reviewed every six months to see whether its implementation is actually necessary in states where it is being enforced. About Section 6 of the act, which guarantees protection against prosecution to the armed forces, the report said: “It is not that no action can be taken at all. Action can be taken but with prior sanction of the central government.