Anatomy of an atrocious Act

AFSPA gives powers to the army, the state, and the central police forces to shoot to kill, search houses and destroy any property. Security forces can arrest any person without warrant who has committed an offense and also on reasonable suspicion of committing an offence.

AFSPA has been a subject of intense debate in the country for the past few decades. It is an Act of the Parliament that provides legal immunity to armed forces for their actions in disturbed areas in the country. This Act has invited the harsh criticism of human rights activists who claim that it unleashes the violent nature of the army without any hurdles. 

Under AFSPA, prosecution of armed force personnel by a civilian court can only take place after the central govt. gives the sanction. Political disputes incidents of stone pelting and terrorist attacks are not new in Jammu & Kashmir. In such conditions, the army believes that AFSPA is an imperative tool which helps it to contain the situation. Whereas, human rights activists tend to showcase the flip side of the coin. They argue that AFSPA gives excessive power to the army, makes it authoritarian, uncontrollable and lethal and also diminishes the responsibility of the army towards civilians. In a dilemmatic situation of preserving both national security and civilian rights, arguments on AFSPA have always been a tight spot for the government and Judiciary to decide upon. 

The Parliament passed The Armed Forces Special Power Act on 11th September 1958, giving the government the authority to impose it in any area as it identifies as disturbed. AFSPA gives many privileges to the army including legal immunity for their actions. It was introduced to check violence in the northeastern states, but in the 80s and 90s due to the untrammelled insurgency, it was extended to Punjab and Jammu & Kashmir also. The act gives special power to the Armed Forces to deal with the crisis. AFSPA acquires its certain powers under the provisions of the emergency under Article 352 of the Indian Constitution. According to the disturbed areas special courts act of 1976, the Central or State government have the right to declare any area in India as disturbed. Once declared, the area will be tagged as disturbed for a minimum of three months from the date of declaration.

AFSPA gives powers to the army, the state, and the central police forces to shoot to kill, search houses and destroy any property. Security forces can arrest any person without warrant who has committed an offence and also on reasonable suspicion of committing an offence. The Act provides immunity for the soldiers from legal proceeding for any action taken under the gamut of the Act. Notably, authorized officers can be only prosecuted with prior permission from the Central government and the Act also protects witnesses from prosecution. A prolonged clamour from the human rights groups and NGOs have been raised for repealing this undemocratic Act passed by the largest democracy in the world. Human Rights groups argue by displaying incriminating evidence and facts that, military without any sort of check system could be devilish in action. In 2012, the United Nations asks India to repeal the Act pointing out that AFSPA has no role to play in a democracy. Human Rights Watch claims that AFSPA contains the elements of abuse, discrimination, and suppression.   

Controversial killings in Kashmir are widespread, where the Indian military seems to operate with a free hand. AFSPA is always facing harsh criticism from civil society. Parvez Inmroz, a human rights lawyer said that “The legislation called as AFSPA wherein the army personal whatever they do – the rape, they disappear, they murder, they torture people there randomly and they cannot be prosecuted” he also points out that, not a single Indian soldier has been jailed for human rights violation or extrajudicial killings in Jammu & Kashmir. Ordinary Kashmiris and Human rights activists have made a desperate call for the law to be revoked, but India refuses the call till today and advocates that the soldiers are acting in ‘good faith’.

In 2000, five civilians in the Pathribal area of Kashmir were killed by the Indian military who said they were terrorists and later the investigation results proved that the people killed were innocent villagers. Similar killings were carried out in 2010 in North Kashmir’s Machil sector, where the army gunned down three civilians in a staged shootout, the incident triggered a mass uprising in Kashmir. The officers involved were first sentenced to life imprisonment by a civilian court but later bailed out by a military court. Kashmiris says that they have lost all hope in the Indian legal system. 

AFSPA which was passed to suppress and eliminate the insurgent groups in the country. But it is palpable that after the implementation of AFSPA insurgent groups have mushroomed more than ever. So, it is high time to decide whether a failed and erroneous ACT like AFSPA is required in a democratic country like India.