THE ARMED FORCES (Special Powers) Act, 1958 (AFSPA) (Amended in 1972)

By Dr Milton S Sangma

In the context of the direction given by the Meghalaya High Court to the Central            Government of India for imposition of the Armed Forces (Special Powers) Act, 1958, in the entire five districts of Garo Hills of Meghalaya and the date fixed for next hearing on November 18, 2015, it is necessary for all of us to know the provisions of this Act so that proper awareness campaigns can be launched in every nook and corner of Garo Hills districts.

The following are the main provisions of AFSPA :

Section 1.  This Section gives the title of the Act as “The Armed Forces (Special Powers) Act, 1958, and it extends to Assam and Manipur. The Act was amended in 1972 and extended to Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal, Mizoram and Jammu and Kashmir.

Section 2.  This Section defined the term “Armed Forces”. In the 1958 version of the Act, the definition was “The military forces and the Air forces operating as Land Forces”, while in the 1972 version, Armed Forces was defined as “The military and Air Force of the Union so operating”.In fact, in 1966, the Air Force in Mizoram resorted to aerial bombardment.

Section 3.  This Section defines “disturbed area” by stating how an area can be declared “disturbed”. The Act grants power to declare an area disturbed to the Centre and the Governor of the State but does not clarify the circumstances under which the authority would be justified in making such a declaration. The Act simply requires that such authority be “of opinion that the whole or parts of the area are in dangerous and disturbed condition such that the use of the Armed Forces in aid of Civil Powers is necessary”.

Therefore, if the officials of the Centre Government or the State Government are satisfied that certain area or parts of it are disturbed, then the provisions of the Act can be enforced without any judicial review or public opinion.

Section 4.  This Section deals with the powers granted to the military stationed at the disturbed area. These powers are granted to the Commissioned officers, Warrant officers or Non-Commissioned officers except the ordinary jawans. They are allowed to use force for a variety of reasons.

The army can shoot to kill, for acts of commission or mere suspicion of commission of offences which are in contravention of any law and order that is enforced in the disturbed area. It prohibits an assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a firearm or ammunition. In order to justify the invocation of this Act, the officer need only to say that “in his opinion, it is necessary to do so for the maintenance of public order and give such warning as he may consider necessary”.

The army can destroy property if it is an arms dump or shelter is given to underground outfit from where armed attacks are made or are suspected to being made or if the structure is used as a training camp or as a hide-out by armed groups or absconders.

The army can arrest anyone without a warrant who has committed or is suspected of being committed or of being about to commit a cognizable offense or use any amount of force, necessary to effect the arrest.

The army can enter and search without a warrant to make an arrest or to recover any       property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. The army is allowed the use of force necessary for the search.

Section 5.  This Section provides that after the army has arrested someone under AFSPA they must hand over that person to the nearest police station with the “least possible delay” but there is no definition what constitutes the least possible delay. There is also no precise amount of time that can be called the “least possible delay” during which the arrested person can be detained by the army without a judicial review by a Magistrate.

Section 6.  This Section establishes that no legal proceedings can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government. This Section leaves the victims of the armed forces abuses without a remedy.

Therefore, this Act is one of the more draconian legislations that the Indian Parliament has passed in its Parliamentary history.

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