The Article ‘Impact of Armed Forces Special Powers Act (AFSPA) on Human Rights’ by Akriti Sinha critically analyses the detrimental impact of the powers assigned to the people employed in armies under the aforesaid Act. The Author vividly explains various provisions of the Armed Forces Special Powers Act and how it creates obstacles for the people. The author… Read More »

The Article ‘Impact of Armed Forces Special Powers Act (AFSPA) on Human Rights’ by Akriti Sinha critically analyses the detrimental impact of the powers assigned to the people employed in armies under the aforesaid Act. The Author vividly explains various provisions of the Armed Forces Special Powers Act and how it creates obstacles for the people. The author throws light on the purpose of enactment of the Act, which was to improve management, but it has been seen through various cases that it is day-by-day becoming an unconstitutional safeguard to the acts of armies and forces.

The author justifies her statements that AFSPA is totally arbitrary and, in many aspects, violates people’s basic human rights. The author dauntlessly opines that the Armed Force has barbarically exploited the people instead of protecting the nation. The author insists on the amendment in law along with certain restrictions on the powers assigned to the armed force.

Introduction: Armed Forces Special Powers Act

Armed Forces Special Powers Act has been one of the controversial Act over the years, and it has been criticized by different sections of the people. This act empowered the people deployed in armies to kill and shoot any person whom they believed to cause a threat. This law continues to exist in sheer violation of Article 21 of the Constitution of India. Armed Forces Special Powers Act has been a debatable topic since its inception and should be struck down for its continuous misuse.

Armed Forces Special Powers Act is basically the result of increasing violence in North East states of India, and it received presidential asset on 11th September 1958. This Act provides an exemption to those deployed in the armed forces to work in any way. The act was introduced for better management and not as an unconstitutional safeguard to the acts of armies and forces.

Important Provisions

The provision of the Armed Forces Special Powers Act would be applicable only when the system and law of that area have gone much beyond the control that State Government cannot control. It is quite important to note that where AFSPA is put into force, that state’s governance lies in with the civil administration and is not taken away. Section 1(2) of the Act deals with the scope and application. This act lies within the North Eastern states of Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram.

Section 2 of the Act is the definition clause. Section 2(a) states that the term “armed force” includes the military force and forces which means land forces. It could constitute an armed force of union as well. Section 2(b) defines the term “disturbed area” as an area that has been notified or declared a disturbed area under Section 3.

If the Central Government, State Government or the administration of the Union Territory, is of the opinion that the area of the centre, state or union territory is wholly or partially under dangerous condition, it can declare that area as a disturbed area under Section 3. Section 4 talks about the power given to the commissioned, non-commissioned or any other officers of the prescribed rank.

The act gives the authority to fire and uses forces even if it causes the person’s death. The officers are authorized to enter into and search places without a warrant if they believe that the property is being used for illegal purposes. If the officers suspect that the person has committed a cognizable offence, they can even arrest them without a warrant.

Section 6 exempts the person from further legal proceeding who are given wide powers by virtue of the act. Only it can be done with the authorization of the Central Government.

Case Study

In the case of Extra Judicial Execution Victim Families Association v. Union of India(2013) 2 SCC 493, several cases of fake encounters were reported. It was also reported that incidents like rape and sexual harassment are happening, but the voices of the people of Kashmir and the North East have been left unheard.

In the case of Naga People’s Movement of Human Rights v. Union of India(1998) 2 SCC 109, the constitutional validity of the Armed Forces Special Powers Act was upheld to be valid but with certain do’s and dont’s. The court, in this case, strictly prohibited the use of third-degree torture.

In the case of Indrajit Burma v. State of Assam and Anr.AIR 1998 Del 513, the court upheld that the state must protect citizens and their rights guaranteed under Article 21. The people of the disturbed areas were denied any protection of lives, liberties including the right to approach the court, and protection under the Code of Criminal Procedure and this has violated Article 14 of the Constitution of India which includes the violation of Human Rights as well.

In the Shopian case, on 29th May 2009 two women went missing from their orchard in south Kashmir’s Shopian district. That was reported, and the next day their dead bodies were found it was also alleged that they have been brutally raped by the armed forces. This resulted in human rights violations of women and the community as a whole.

In the case of Luithukla v. Rishang Keishing(1988) 2 Gau LR 159, a writ of habeas corpus was filed, and it was ordered by the court that the armed forces must follow the rule of the Code of Criminal Procedure to ensure the protection of human rights.

In Naga People’s Case (1998) 2 SCC 109, the court looked into various issues pertaining to arbitrariness and the unconstitutional powers declared by the courts under Armed Forces Special Powers Act. Even after the act was highly criticized for violation of human rights but there stood no arguments.

Impact of ASPFA on Human Rights

It is need of the hour that the Armed Forces Special Powers Act should be looked into seriously by the Government. The act should be repealed because it violates basic human rights, and this violence will continue now and then. As reported by some international organizations, Operation Bluebird happened in January 1987 at Oinam, Manipur, where 30 villages were occupied and covered by Nagas for committing violence, including torture, mass killing, sexual harassment, theft and other criminal activities.

Armed forces under Armed Forces Special Powers Act moved into areas where they were not allowed to enter and carried out activities of violence that resulted in the violation of Human Rights. Armed Forces Special Powers Act is totally inhumane and includes all those activities that violate the rights of people all over the nation. It goes beyond morality and is completely arbitrary in nature.

The decision of the government not to question the disturbed area in the eye of the law is completely unconstitutional. Because of such a decision, many acts that had violated human rights nationwide have not been reported till now. Victims do not get any of their rights guaranteed by the law and system, and this particular results in sheer violation of human rights. Armed Forces Special Powers Act is completely unconstitutional and arbitrary, violating not only the people’s fundamental rights but also the Universal Declaration of Human Rights, to which India is a signatory.

India is a country that gives significance to the rights and liberties of its citizens. But the happening in Nagaland, Manipur, Jammu and Kashmir, and Manipur look like the law is making a mockery of Human Rights. As reported by Amnesty International, data shows that armed forces under Armed Forces Special Powers Act are never questioned and victims are left unheard.

In KS Puttaswamy and Others v. Union of India AIR 2017 SC 4161, the Apex Court held that Article 21 has been extended and includes multiple rights. Various cases show that the court has laid guidelines for the protection of Human Rights yet Armed Forces Special Powers Act continues to violate human rights at the mass level.

Section 4 of the Act validates extrajudicial killing and it is inconsistent with Article 246 of the Indian Constitution. The Act is ultra vires and greatly results in Human Rights violations.

Again, Section 5 of the Act is inconsistent with Article 22 of the Constitution of India. Non- production of the arrested person within 24 hours before the magistrate violates rights.

The scope of Section 6 is limited. It must be increased to keep a close check on the armed forces, failing to do so often result in violation of Human Rights.

Conclusion

Armed Forces Special Powers Act was introduced by the Parliament post-independence to protect and safeguard the country from enemies and anti-nationals. Through the continuous journey of AFSPA, the list of crimes and inhumane activities carried out by Armed Forces has broken records. AFSPA has successfully established a type of cultural impunity that allows military forces and governments to disregard human rights and the existing rule of law completely.

The Armed Force, instead of protecting the nation, has ruthlessly exploited the people. On the one hand, it had stopped enemies from infiltrating the nation; on the other hand, it gave birth to greater anti-national uprisings. It is alleged that Armed Forces have committed human rights abuses such as personnel committing rape, using human shields on army vehicles, fake encounters, sexual harassment and disappearance while in custody. It is very important to take into consideration the human rights violation by Armed Forces.

As reported by the Office of the High Commissioner for Human Rights (OHCHR), there is an increase in violence like shootings that injure the lives of civilians and displace many people living across the Line of Control (LOC). So, the question of what actually should be done here arises. Keeping good and strict checks on officials, amendment of laws and introducing rigorous punishment for such offences can be the solution. It is also needed to impose limitations on the Armed Forces’ unconditional power and introduce the Supreme Court’s role to the greater extent in attaining justice.


References

[1] AFSPA, the Law That Allows Incidents Like the Nagaland Killings to Occur, Available Here

[2] Azadi, AFSPA and Human Rights, Available Here

[3] NHRC can intervene when rights are violated under AFSPA, Available Here


Updated On 2022-07-20T11:10:56+05:30

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