Law · Public Policy

The Armed Forces (Special Powers) Act, 1958 – Defining ‘Draconian’

The Armed Forces Special Powers (Ordinance) was promulgated by Lord Linlithgow on August 15, 1942 to suppress the Quit India movement launched by the nationalist leaders. However, it weaved its way into use by the Indian Government when in response to unrest, boycott of general elections and active rebellions in 1958 urged by the Naga Nationalist Council (NNC) in its attempt at attaining self-determination that spilled over into the state of Manipur, the Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated in 1958. It was replaced by the Armed Forces (Assam and Manipur) Special Powers Act in September, 1958. It gave the Governors of State, the Administrators of Union Territories and the Central Government the power to declare areas within their States or Union Territories as “disturbed areas” thus inviting intervention by the central armed forces. The name of the Act was replaced with Armed Forces (Special Powers) Act, 1958 earning it the widely used acronym AFSPA. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted to combat the growing insurgency, and the Armed Forces (Punjab and Chandigarh) Special Powers Act was enacted in 1983 though it was withdrawn in 1997.

This extensively debated Act has no more than six sections. The first section contains the Statement of Object and Reasons wherein it is specified that the Act confers special powers upon the armed forces in disturbed areas in the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The second section defines ‘armed forces’ and ‘disturbed area’. The third section outlines the authorities that possess the power to declare areas as disturbed enough to warrant the aid of the armed forces in addition to the civil powers already in play. The fourth section discusses the broad spectrum of extraordinary powers conferred to the armed forces which include the use of lethal force for the maintenance of public order against those acting in contravention of the law in the disturbed areas, the power to destroy arms dumps or fortified shelters from which armed attacks may be made or structures that can be used as training grounds, the power to arrest without warrant and with the use of necessary force a person who has or can be reasonably suspected to commit a cognizable offence in the future, and finally the ability to enter and search any premise without warrant to make the aforementioned arrest or in the event that one is believed to hold unlawful arms and ammunition. The fifth section outlines the procedure to be followed when an individual is arrested in very basic terms. The last section is perhaps the most chilling – it confers immunity to those acting in exercise of the powers under this Act.

The AFSPA effectively legitimizes the acts of the military in what has been deemed as emergency situations. The effect in toto has been the de facto militarisation of the areas in which this Act is in effect. In 2009, an independent citizen’s fact finding mission to Manipur to uncover details of extrajudicial killings found that the enforcement of AFSPA had let to 260 killings in 2009 alone. Cases like CLAHRO v PL Kukrety, Bacha Bora v State of Assam, Nungshitombi Devi v Rishang Keishing, CM Manipur and Luithukla v Rishang Keishing indicate the tyrannical use of detention under military custody and enforced disappearances made possible under the Act. On 5th March, 1995 in Kohima, Nagaland, the sound of a tyre of a military convoy bursting was mistaken for a bomb explosion, and the military, in response, began to open fire indiscriminately killing seven civilians in the process and injuring twenty-two others. In July 2004, an incident involving the arrest, rape and murder of a 32 year old woman, Ms. Thangjam Manorama Devi, by members of the Assam Rifles shocked the nation with its blatant violation of human rights. Her bullet-ridden and mutilated body was discovered at the roadside. The authorities did not pursue any investigation into yet another instance of the indiscriminate misuse of the powers conferred by the Act, and this led to widespread furore throughout Manipur. One of the protests that stood out was that of nude women standing with a banner that said “Indian Army Rape Us” outside the Assam Rifles headquarters at Kangla Fort, Imphal. In 2012 in Manipur, the Extra-judicial Execution Victim Families Association, Manipur (EEVFAM) appealed to the Supreme Court for independent probes into the 1,528 cases of extra-judicial executions by armed forces in Manipur which were swept under the rug labelled ‘encounters’ with militants.

There are a multitude of events and incidents where brutal torture, enforced disappearances, arbitrary detentions and sexual violations were inflicted on mere civilians in the “disturbed areas”. Innumerable and heart-breaking narrations of those whose homes were destroyed, human rights were violated and lives were ruined by those empowered by the Act have come to light in the recent past. It is more than obvious that lethal force and inexplicable use of horrendous forms of torture and sexual assault has become rampant and is preferred over the following of arrest procedures, further investigations and prosecutions in the event that suspicions are harboured against certain civilians.

A throng of strong-willed and furious civil society activists have been campaigning for the repeal of this draconian Act. One such activist in Ms. Iron Chanu Sharmila who has also been honoured with the title of ‘Iron Lady of Manipur’. This exceptional individual has undertaken a hunger strike since November 2000 which would make it the world’s longest hunger strike. She has been routinely booked under section 309 for attempting to commit suicide and has been arrested and released every year as the term of imprisonment under the section spans one year. She is currently being force-fed through nasogastric intubation. Her fight began after the Malom Massacre in Manipur on 2nd November, 2000 where ten civilians were shot and killed at a bus stop allegedly by the Assam Rifles.

Non-state organisations like the United Nations Human Rights Council have questioned the constitutional validity of the Act and criticised its enforcement in light of the articles of the International Covenant on Civil and Political Rights (ICCPR) of which India is a signatory and is obligated to follow. On 31st March, 2012, India was asked by the UN to revoke AFSPA as it did not belong in the aegis of the Indian democracy. The words used to describe the Act are ‘draconian’, ‘colonial’, ‘hated’ to name a few. The Human Rights Watch called it “a tool of state abuse, oppression and discrimination”. Human rights organisations like Amnesty International consider it to be a tool to “provide impunity for human rights abuses and fuels cycles of violence”.

The Jeevan Reddy Committee was set up by the Union Ministry of Home Affairs to review if the Act needed to be amended or repealed and replaced completely with a human one. A report spanning 147 pages was submitted on June 6, 2005 and it recommended the repealing of the Act. It was emphasized that “recommending the continuation of [this] Act, with or without amendments, [did] not arise.” However, the recommendation of repealing the Act were not adhered to and neither was the report made officially public.

Through the powers conferred by the Act under section 6, the army has consistently been able to extricate itself from the jurisdiction of ordinary criminal courts. The central government is the only authority under the Act that can grant the requisite sanctions to prosecute the members of the armed forces in the criminal courts which they do not and prefer to rely on court martial proceedings. Grave violations of human rights cannot be considered to fall under the blanket of acts performed in the line of duty and thus warranting legal protection through the AFSPA.

The rebellions and disruptions in order in the past in the so-called ‘disturbed areas’ may have invited the provisions of the Act, but they can never justify the excesses being carried out under the legal protection guaranteed by the Act. Innocent civilians have lost their fundamental rights and their lives due to the subjugation exercised by the armed forces in the North-East and in Jammu and Kashmir, with no substantial backlash or punishment meted out to the perpetrators. The sole reason: the Armed Forces (Special Powers) Act. ‘Draconian’ has been defined with reference to laws and their application as excessively harsh and severe, and it is hard to dispute the fact that if there is legislation that fulfills all the necessary loci of this definition, it is the AFSPA.

About the Author

Varsha Rao - Image for Alexis CPPIR (Internship)Varsha Rao is currently pursuing a B.A./L.L.B. degree from National Law University, Delhi (NLUD). She is a member of the NLUD Death Penalty Research Project which is being conducted in collaboration with NALSA. Her interests lie in the field of behavioural science and criminology. She is currently pursuing her internship with Alexis Centre for Public Policy and International Relations.

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