Neha Jha asked: I wanted to know about Armed Forces Special Powers Act

Ali Ahmed replies: The AFSPA was based on a colonial era law enacted to face down the Quit India movement in 1942. Its immediate precedents were two similar Acts for East Punjab and Bengal in 1947 to come to grips with the Partition riots. Thereafter, to control the Naga insurgency that had broken out in the mid fifties, the Act was promulgated in September 1958 for operation in Assam and Manipur. It has since been enacted for Tripura in 1970, Manipur in 1980, Punjab in 1983 and J&K in 1990.

The Act envisages the following powers for the military (Sections 4, 5) when employed in areas declared ‘disturbed’ under Section 3 of the Act:

‘4. Special Powers of the armed forces – Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force…;

(b) …destroy any arms dump, prepared or fortified position or shelter…;

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists…;

(d) enter and search without warrant…’

The Act has been under scan for long. Writ Petitions which were filed in 1980 challenging the Central Act as well as the State Act were dismissed by the Delhi High Court. The Central Act was held to be ‘not violative’ of Articles 14, 19 and 21 of the Constitution. The Supreme Court’s verdict in the case dating to 1988 of Naga Peoples’ Movement of Human Rights vs Union of India, was essentially that ‘Parliament was competent to enact the Central Act’. However, the BP Jeevan Reddy committee examining it in relation to the North East in 2005 and the Veerappa Moily report of the Second Administrative Reforms Commission of 2006 (Fifth Report), asked that the Act be repealed. The latter recommended that the substitute chapter for insertion into the UAPA suggested by the BP Jeevan Reddy Committee be applicable only for the North East, thereby defeating the intent of the BP Jeevan Reddy Committee.

It came under intense critical scrutiny in 2004 with the custodial death of a Manipuri woman, Thangjam Manorama Devi, accused of being an underground operative. The Act has been under focus in J&K with the government favouring reframing of its application. Consequently, the Central government is in the midst of an exercise to rethink the Act. This could be through repealing it, refining the Act in a more ‘humane’ manner or by incorporating its provisions in a diluted form in the Unlawful Activities (Prevention) Amendment Act, 2008. The Ministry of Home Affairs had asked for comments from the Ministry of Defence. The MOD has reportedly asked for maintaining the Act in its current form. The issue was discussed in the meeting on the Cabinet Committee on Security. The Army and Air Chiefs have publicly made their position clear on retaining the Act and its provisions. The current status is one of status quo.