Armed Forces Special Powers Act (AFSPA)
| 1990 | Jammu & Kashmir | |
| 1985 | Assam | OP Rhino |
| Nagaland | Op Riddle | |
| Mizoram | Op Hifazat | |
| Tripura | Op Bajrang | |
| 1967 | Naxalite Uprising |
Under the Act, "Any commissioned officer warrant officer, non-commissioned officier or any other person of equivalent rank in the armed forces may, in a disturbed area, arrest without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest". Section 5 however requires that any person arrested and taken into custody under the 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 ocasioning the arrest.
Torture had been an acknowledged part of civil law and order machinery. Torture tends to be applied on a large scale, to innocent populations, under conditions of unlimited powers vested with certain forces, over-ruling all democratic rights and liberties. In India, such powers were given to armed and para-military forces in certain areas faced with armed insurgency. Being an extremely complex issue with national integrity at stake, on the one hand, and the democratic rights of law-abiding citizens on the other, the administration was faced with over-riding compulsions to arm the security forces with the Special Powers Act in the Disturbed Areas. By 1995 many States were declared disturbed areas, many of the North Eastern States, Jammu and Kashmir.
Representations have been received from time to time from different organisations including Non-Governmental Organisations for withdrawal of Armed Forces (Special Powers) Act (AFSPA). Justice Jeevan Reddy Committee in its report submitted to Government on 06.06.2005, recommended repeal of AFSPA and suggested to amend the Unlawful Activities (Prevention) Act, 1967 by inserting a new Chapter VI-A in respect of North Eastern States so as to provide for provisions contained in Armed Forces (Special Powers) Act.
On August 15, 1942, Lord Linlithgow, the viceroy of India, promulgated the Armed Forces Special Powers (Ordinance) to suppress the Quit India Movement launched by Mahatama Gandhi a week earlier. Gandhi, Jawaharlal Nehru and most leaders of the Indian National Congress were imprisoned. Indian protesters targeted and burned down police offices and railway and telegraph lines, which the British saw as designed to hamper the war effort against an impending Japanese invasion on the Burmese front. Linlithgow responded with violence: 2,500 were killed in police shootings on Indian protesters, tens of thousands were arrested, rebellious villages were torched, and protesters were flogged and tortured.
In August 1947, freedom from British rule and the birth of India and Pakistan were accompanied with genocidal violence and the mass migration of Hindus and Sikhs from Pakistan and of Muslims from India. A few years into Indian independence, Jawaharlal Nehru, the first prime minister, faced his first insurgency in Naga districts of Assam, along the Burmese border. Baptist missionaries had converted a majority of the Nagas to Christianity and an educated leadership had emerged in the form of the Naga National Council. In the meetings between the Naga and the Indian leadership, Gandhi theoretically considered the possibility of Naga independence, but Nehru vehemently rejected the idea and offered the Nagas autonomy within India.
In 1954, the Nagas began an insurgency for independence. India responded by sending in thousands of Indian army soldiers and paramilitary men from the Assam Rifles to crush the rebellion. An intense cycle of violence followed. To further arm his counterinsurgents and provide them with legal protection, Nehru’s government passed the Armed Forces Special Powers Act (1958) in the Indian parliament.
Very few lawmakers spoke in opposition to the law. “We want a free India. But, we do not want a free India with barbed wires and concentration camps, where havaldars (sergeants) can shoot at sight any man,” Surendra Mohanty, a dissident member of the parliament from Orissa, told the house.
Now, Prime Minister Nehru echoed Churchill and Linlithgow as they had set about crushing the Quit India Movement with violence and legal protections of the Armed Forces Special Powers Ordinance. “No infirm government can function anywhere. Where there is violence, it has to be dealt with by government, whatever the reason for it may be,” Nehru told the Indian parliament. And Nehru’s soldiers in Nagaland mirrored the ruthlessness of the British forces in India. “The stories of burned rice stores and houses seemed endless,” wrote Gavin Young, a reporter for The Observer, who traveled throughout Nagaland in 1961. “Individuals told how they had been beaten and tied up for hours without water; how they had been bound and hung downwards from beams to be flogged; how sons, brothers and fathers had been bayoneted to death.”
The discontent in the borderlands of Nehru’s India wasn’t limited to the Naga areas. Signs of trouble and disillusionment with being ruled by a bureaucrat from New Delhi were growing in the former princely state of Manipur, which had merged with India in 1949. In 1964, the year of Nehru’s death, a separatist militant outfit seeking independence from India, the United National Liberation Front, was formed in Manipur. India reacted to the centrifugal force by granting statehood to Manipur in 1972, which brought an elected local government and greater financial resources.
A few years later, inspired by Maoist ideas, some Manipuri rebels traveled to Lhasa and, with Chinese support, formed an insurgent outfit, the People’s Liberation Army, which sought Manipuri independence. Several smaller insurgent outfits came into being. The number of persons killed in acts of violence went up from two in 1978 to 51 in 1981, according to the South Asian Terrorism Portal. India responded by declaring Manipur a “disturbed area” and imposed the Armed Forces Special Powers Act in late 1980. A brutal cycle of insurgency and counter-insurgency has continued ever since, claiming thousands of lives.
The law was first implemented in J&K on July 5, 1990, when the entire law-and-order machinery collapsed in the Valley and normal law was found inadequate to tackle the rising graph of armed militancy. The then state government declared the Kashmir Valley as a disturbed area under section 3 of AFSPA. Later, on August 10, 2001, the J&K government extended disturbed area provision to the Jammu province also. Twenty five years after the Armed Forces Special Powers Act was implemented in Jammu and Kashmir, the law still remains a bone of contention in the militancy-hit state. Ambiguity shrouds the status of the AFSPA even as several regional parties, including separatists, debate the pros and cons of the law and up the ante against the government which time and again has refused to repeal it.
In the context of WP (Civil) No.127 of 2015, the High Court of Meghalaya vide its order dated 2.11.2015, directed the Central Government to consider the use of Armed Forces Special Powers Act, 1958 and deployment of armed and para-military forces in the Garo Hills area of Meghalaya to control the fast deteriorating law and order situation. The Central Government has constituted a Committee under the Chairmanship of Secretary (IS), MHA to assess the security situation in Garo Hills of Meghalaya. A number of representations have been received from various organizations/individuals requesting not to extend Armed Forces Special Powers Act, 1958 in the Garo Hills of Meghalaya.
In April 2015 India granted the army shoot-to-kill powers to fight militants in a wide swathe of the far-flung northeastern state of Arunchal Pradesh, bordering Tibet and claimed by China. The army was already exercising "special powers" in other northeastern states, where various separatist, leftist and tribal rebels are waging insurgencies, but Arunachal Pradesh had been relatively peaceful until recently. The order extended the controversial Armed Forces Special Powers Act (AFSPA) to all districts of Arunchal Pradesh that border Assam - a measure that affected most of the state's 1.3 million people.
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