The Armed Forces (Special Powers) Act, 1958 (AFSPA) stands as a contentious piece of legislation within the realm of human rights activism. Human rights activists fervently argue against AFSPA, emphasizing its draconian nature and its role in perpetuating instances of human rights violations by security forces. At the crux of their opposition lie several sections of AFSPA that grant sweeping powers to the armed forces, often at the expense of civilian rights. One particularly contentious provision is Section 4(a) of AFSPA, which empowers any commissioned officer, warrant officer, non-commissioned officer, or any other person of equivalent rank to fire upon or otherwise use force, even leading to death, against individuals acting in contravention of the law or order issued under this Act. This broad mandate, activists argue, enables excessive use of force and leads to extrajudicial killings, arbitrary detention, and other forms of abuse.
Moreover, Section 6 of AFSPA provides immunity to armed forces personnel from legal proceedings without the prior sanction of the central government. This immunity shield, according to critics, fosters a culture of impunity, where security personnel operate without fear of accountability for their actions.
In evaluating the necessity of AFSPA, the perspective of the Apex Court holds considerable significance. While the Supreme Court of India has recognized the legitimate concerns regarding human rights abuses under AFSPA, it has also acknowledged the complex security situation in areas where the Act is enforced. The Court has emphasized the need for balance, advocating for measures to prevent abuse while acknowledging the security challenges faced by armed forces in conflict zones. However, the Court has also issued directives to ensure accountability and transparency in cases of alleged human rights violations under AFSPA, signaling the imperative for judicial oversight and adherence to constitutional principles even in areas marked by insurgency or unrest.
Tag: Challenges to internal security through communication network, role of media and social networking sites in internal security challenges. Security challenges and their management in border areas- linkages with organized crime with terrorism.  Â
Decoding the Question:
- In the introduction write in general about the Armed Forces (Special Powers) Act (AFSPA).  Â
- In Body,  Â
- You need to write about a section of the AFSPA act that is criticized by human rights activists and relate how these sections are violating human rights.   Â
- Critically evaluate the answer concerning the Supreme Court’s judgment in this regard.  Â
- In Conclusion your answer with a balanced tone of language.   Â
Answer:
The Armed Forces Special Powers Act (AFSPA) is an act empowering armed forces to deal effectively in disturbed areas. Any area which is declared ‘’disturbed’’ under Disturbed Areas Act enables armed forces to resort to the provisions of AFSPA.
The salient features of the AFSPA act are:
- The Governor of a State and the Central Government are empowered to declare any part or full of any state as a disturbed area if according to their opinion that it has become necessary to disrupt the terrorist activity or any such activity that might impinge on the sovereignty of India or cause insult to the national flag, anthem or India’s Constitution.
- Section (3) of AFSPA provides that, if the governor of a state issues an official notification in The Gazette of India then the Central government has the authority to deploy armed forces for assisting the civilian authorities. Once a region is declared ‘disturbed’ then it has to maintain the status quo for a minimum of three months, as per The Disturbed Areas Act of 1976.
- Section (4) of AFSPA gives special powers to army officers in disturbed areas to shoot (even if it kills) any individual who violates the law / or is suspected to violate the law (this includes assembly of five or more people, carrying of weapons) etc. The only condition is that the officer has to give a warning before opening fire.
- Security forces can arrest anybody even without a warrant, and carry out searches without consent.
- Once a person is taken into custody, he/she has to be handed over to the nearest police station as soon as possible.
- Prosecution of the officer on duty for alleged violation of human rights requires the prior permission of the Central Government.
There are two important cases related to AFSPA file in SC:
The Supreme Court upheld the constitutionality of AFSPA in a 1998 judgment (Naga People’s Movement of Human Rights v. Union of India). In this judgment, the Supreme Court arrived at certain conclusions including  Â
- A suo-motto declaration can be made by the Central government; however, the state government should be consulted by the central government before making the declaration.  Â
- AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’  Â
- The declaration has to be for a limited duration and there should be a periodic review of the declaration that 6 months have expired.  Â
- While exercising the powers conferred upon him by AFSPA, the authorized officer should use the minimal force necessary for effective action.  Â
- The authorized officer should strictly follow the ‘Dos and Don’ts’ issued by the Army.  Â
The apex court, in 2016, in the Extra Judicial Execution Victim Families Association vs Union of India, ended the impunity of the security forces for human rights violations under the Armed Forces Special Powers Act. The SC stated that every death caused by the armed forces in a disturbed area, whether the victim is a dreaded criminal a militant a terrorist or an insurgent, should be thoroughly enquired into.  Â
Thus, the application of AFSPA in any state can be made with prior discussion of state government and this should be used as the last tool to restore peace and tranquility in affected areas. As the constitution protects everyone’s life and liberty as well it talks about a welfare state, then multiple interventions in disturbed areas are needed to maintain peace as long-time affairs and by the development of backward regions should be the long-term vision. Â
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