AFSPA (Armed Forces Special Powers Act, 1958) Removed from Meghalya
What is AFSPA?
AFSPA gives Armed forces the power to maintain public order in “disturbed areas”. Prohibit a gathering of five or more persons in an area. Army can also arrest a person without a warrant; enter or search a premises without a warrant
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- Declared by notification under Section 3 of the AFSPA.
- An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.
- The Central Government, or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.
- The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments.
Origin of AFSPA
- The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15 August 1942 to suppress the Quit India Movement.
- 4 Similar Ordinance were invoked by the central government to deal with the internal security situation in the country in 1947 which arouse out of the Partition of India.
- AFSPA came into force on September 11, 1958.
- Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh.
- The Centre revoked it in Meghalaya on April 1, 2018.
- In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations and in Tirap, Longding and Changlang districts bordering Assam.
- In 1983 Punjab and Chandigarh passed their own Armed force Act which was withdrawn in 1997, roughly 14 years after it came to force.
- An Act passed in 1990 was applied to Jammu and Kashmir and has been in force since.
- Tripura withdrew the AFSPA in 2015.
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- United Nations view
When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights
- The Act has been criticized by Human Rights Watch as a “tool of state abuse, oppression and discrimination“
- Manipur’s Irom Sharmila has been one if its staunchest opponents, going on a hunger strike in November 2000 and continuing her vigil till August 2016.
Reports and Commission
Santosh Hegde commission on Manipur encounter deaths
The Commission noted that AFSPA was an impediment to achieving peace in regions such as Jammu and Kashmir and the North East. The commission also said the law needs to be reviewed every six months to see whether its implementation is actually necessary in states where it is being enforced. About Section 6 of the Act, which guarantees protection against prosecution to the armed forces, the report said: “It is not that no action can be taken at all. Action can be taken but with prior sanction of the Central Government.
Justice Jeevan Reddy Commission
The commission recommended to repeal AFSPA as “the Act is a symbol of hate, oppression and instrument of high handedness”
Second Administrative Reforms Commission
The second Administrative Reforms Commission (ARC) in its fifth report on “Public Order,” recommended to repeal of Armed Forces Special Powers Act, 1958.
Supreme Court of India
Supreme Court said that any encounter carried out by armed forces in the garb of AFSPA should be subjected to thorough inquiry. In the words of supreme court “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both.. This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.”