The circumstances went beyond control in Naga Hills Tract, then part of Assam, in 1948, as the Naga National Council (NNC) under Dr Angami Zapu Phizo announced the formation of the Nagalim federal government with aim of an independent Greater Nagaland or Nagalim. NNC armed cadres started collecting taxes from villagers, shops, commercial vehicles and even a 25% share of the salary of the state employees. The separatist movement took a violent turn as a number of government officials, state police personnel and suspected informers were brutally executed from 1953 to 1957. The state administration became impotent and was unable to maintain peace and order. There were similar circumstances in North Manipur where the Naga-Kuki conflict was brewing. Accordingly, the central government was forced to induct army troops to deal with insurgency and also Armed Forces Special Powers (Assam and Manipur) Ordinance was promulgated by the President of India in May 1958 in which special legal powers were been given to armed forces in disturbed areas in the state of Assam and UT of Manipur. Subsequently, the Armed Forces Special Powers Bill was passed in Parliament, which became an Act as it received the assent of the president in September 1958.
THE ARMED FORCES (SPECIAL POWERS) ACT 1958 granted special powers to the Indian armed forces to maintain peace and restore law and order in Disturbed Areas of the Union of India. The Act was for the first time enforced at end of 1958 to deal with the Naga insurgency in the Naga hills region of Assam, which has reached a dangerous level. Gradually, the AFSPA was applied to all seven sisters including Assam, Nagaland, Arunachal Pradesh, Mizoram, Tripura, Manipur and Meghalaya as the insurgency spread its wings in the entire North East.
Later, AFSPA Act 1983 was applied in Punjab and Chandigarh, when militancy in Punjab went beyond control and Jarnail Singh Bhindranwale-led militants resorted to killings of police personnel and innocent civilians. AFSPA was withdrawn after 14 years in 1997 as peace, prosperity and harmony returned to Punjab.
Again, as Jammu-Kashmir was infected by Pakistan-supported militancy and saw an exodus of Kashmiri Hindus from the Valley, AFSPA was passed in 1990 and was enforced in entire Jammu-Kashmir and is even in force today to deal with Pak-sponsored militants and anti-national elements, who are a threat to the integrity of India.
Pre-condition of AFSPA
The pre-condition of AFSPA is that the first central government should declare the region as Disturbed Area after having analysed the situation and also from the state government’s feedback. Once the circumstances are beyond the control of state machinery, part or entire state can be notified as Disturbed Area and the minimum duration is six months by Act 7 of 1972.
AFSPA should not be confused with Aid to Civil Authorities, where during elections or temporary loss of law and order, the Central Armed Police (CAP) units or even ARMY can be called for assistance to city officials and a magistrate is present and signs requisition for use of force. Minimum force is the keyword.
AFSPA 1958 had four sections, which need to be perused. Section 1 (Short Title and Extent) Subsection 1.1 says that this Act may be called the Armed Forces (Special Powers Act) 1958 or 1983 or 1990 or any other year when enforced. Subsection 1.2 explains the extent. AFSPA 1958 version was applicable to the whole of the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. Section 2 of the Act has definitions. Armed forces mean Military forces and the Air Force operating as land forces or any other armed forces of the Union. Disturbed Area means an area that is for time being declared by notification under Section 3 to be a Disturbed area. Other definitions are as per Army Act 1950. Section 3 of the Act explains who can declare an area as Disturbed Area. If the governor of a state or the administrator of a Union Territory or central government is of the opinion that the whole or a part of the state or UT is in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is necessary, the governor or administrator or central government may issue a notification in the official gazette to declare the whole or part of the state or UT as disturbed area.
Section 4 of AFSPA 1958 confers Special Powers to the members of the armed forces of the Union of India in a Disturbed area and protects them from legal harassment once involved in operations against militants, insurgents, or anti-national elements declaring war against the state. The Act empowers any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent status in the armed forces may in a disturbed area may if (Sub sec 4.1) he/she is of the opinion that it is necessary, for the maintenance of order, after due warning, fire upon or otherwise use force even to causing death, against any person who is acting in contravention of any law and order for time being in force in the disturbed area prohibiting the assembly of five or more persons( Sec 144 IPC) or carrying weapons or things capable of being used as weapons or of fire arms, ammunition or explosive substance. (Sub sec 4.2) destroy any arms and ammunition dump, fortified position or shelter from which armed attacks are made or likely to be made, or are attempted to be made or any structure used as Training Camp for Armed Volunteers or used as hideouts as armed gangs or absconders wanted for any offence (Sub sec 4.3) can arrest without warrant any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or about to commit, may use such force as necessary to effect the arrest. (Sub Sec 4,4] Armed forces troops may enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongly confined or any property reasonably suspected to be stolen, or any arms, ammunition, an explosive substance believed to be stored in such premises may use force as may be necessary.
Section 5 of the Act directs that after initial interrogation and investigation the arrested militants/suspects, with recoveries should be handed over to the nearest police station with a brief circumstantial report and taken a proper receipt. Section 6 of AFSPA provides protection to armed forces personnel acting under the Act. No prosecution, suit, or other legal proceedings shall be initiated except with the previous sanction of the central government, against any person in respect of anything done or purported to have done in the exercise of powers conferred under the Act.
UN calls it draconian
There has been criticism of the validity of AFSPA. UN Commissioner of Human rights advised India to revoke it in March 2009. It called it outdated and of the colonial era. Again in March 2012, the UN asked India to repeal the law and termed it draconian. Human Rights Watch, an NGO called it a tool of state abuse, oppression and discrimination. Irom Sharmila Chanu, the iron lady of Manipur, remained on hunger strike for 16 years from 2000 t0 2016 against AFSPA 1958.
The Act is presently in force in Assam, Nagaland, Manipur less Imphal and part of Arunachal Pradesh. It has been removed from Mizoram, Tripura, and Meghalaya as the peace has prevailed. It was fully removed from Punjab in 1997. Jammu-Kashmir is still under AFSPA. The prime minister assured peace, unity and development in a rally in Diphu, Karbi Anglong Assam, on April 28, 2022, that the Centre is working speedily towards revoking AFSPA from the entire North East as there is a 75% decrease in militant violence in the region over past eight years. He said it has been fully revoked in Tripura, Meghalaya and almost 75% of Assam. We intend to fully revoke it as the situation has improved.
Soldiers’ human rights
AFSPA is a Life Jacket for the armed forces. It is a protection against unnecessary legal hassles a soldier may have to face while performing operations in the disturbed area and even after he is posted out of the disturbed area. Armed forces and their families also have human rights. There may be an odd aberration. What about the human rights of a young soldier, when in a militant ambush, he sustains 100 bullet wounds and makes a supreme sacrifice and a bus with 40 soldiers is ripped apart by a high-intensity RDX base IED planted by terrorists. We, the Indian Army, are sanguine that our beloved prime minister will not take a decision to repeal the AFSPA in haste, especially from Jammu-Kashmir and other sensitive areas in North East and risk the lives of soldiers for appeasement of vote banks.
-The writer is an Indian Army veteran and a defence analyst. He has keen interest in Geo-strategic affairs and writes regularly on internal and external affairs issues related to India and neighbours. The views expressed are personal and do not necessarily reflect the views of Raksha Anirveda.
