R.L.E.

K
INTERNSHIP PROJECT

Armed Force Special

Powers Act

Introduction
The Armed Forces Special Power Act is the most disputed act in our
country. This act faced much opposition and is considered as the most
arbitrary act by some politicians and jurists. But without analyzing the
act and understanding the situations of a particular region one cannot
blame an act for its incompetency or its arbitrariness. Only political gain
cannot be a fact for banishing of an act. This act is very short and has
very simple statutes regarding the powers of the armed forces in the
disturbed region. This act equips the armed force personnel with strong
and affirmative powers so as to maintain peace and political stability in
a particular region. But before discussing further about this act we need
to understand the aspects relating to its origin and its history.

Origin and History

The origin of the act dates back to the colonial times of the British India
who imposed it to crush the Quit India Movement. It is the Indian form of
the Armed Forces Special Powers Ordinance, 1942enacted by the British
to brutally crush the Indian struggle for independence in the motion of
the widespread Quit India Movement of 1942.The Ordinance was given
by Lord Linlithgow, the then Viceroy and Governor General of British India
on the 15th August 1942. History shows what followed after the passing of
the Ordinance and how the Indian movement was brutally suppressed.

Criticism
The procedure prescribed by law has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary. The question whether the procedure
prescribed by a law which curtails or takes away the personal liberty
guaranteed by Article 21 is reasonable considerations like the provision
for a full-dressed hearing as in a Courtroom trial, but in the context,
primarily, of the purpose which the Act is intended to achieve and of
urgent situations which those who are charged with the duty of
administering the Act may be called upon to deal with. Secondly, even
the fullest compliance with the requirements of Article 21 it is not the
debates end because, a law which prescribes fair and reasonable
procedure for curtailing or taking away the personal liberty guaranteed
by Article 21 has still to meet a possible challenge under other
provisions of the Constitution like, for example, Articles 14 and 19.

The Armed Forces Special Powers Act, 1958, is a direct assault on the
legal interpretation of fundamental rights which constitutes a cardinal
principle of Indian jurisprudence. Under the Act, in place currently in
the Northeast states and Jammu and Kashmir, powers vested with the
armed forces are neither fair, nor just and reasonable. Maneka Gandhi
vs. Union of India, Supreme Court, 1978

Human Rights Concern

The Act empowers the central government and the governor of a state
to declare any area within their territory as disturbed based on their
judgment of disturbed or dangerous situation warranting use of
armed forces. Upon such a declaration, the armed forces have the
power to shoot on sight, even to kill, any person believed to be
violating existing laws and order prohibiting assembly of more than five
persons (Section 4(a)) after giving such due warning, arrest any
person without warrant, even on the basis of reasonable suspicion of
having committed a cognizable offence (Section 4(c)), use such force
as necessary to effect arrest, and enter and search any premise without
warrant (Section 4(d)). Worse, these powers are provided without
adequate safeguards and complete immunity is given to armed forces
for the exercise of the powers (Section 6). Not a single offence is
defined in the Act and yet such wide discretion is given to the armed
forces in such areas.

Political Opinions
Almost all the political parties which have their interests in the state of
Jammu and Kashmir are completely against this act. Though there are
only political interests involved
Omar Abdullah, the chief minister of J&K, has been very forthright
about his governments desire to revoke the law from the Srinagar,
Budgam, Samba and Kathua districts of the state because the army
has not been conducting operations in these districts for a long time
and the districts are almost militancy free The chief minister
informed the legislators that no formal recommendation had been sent
in this regard to the central government, although, in view of the
powers vested in the governor, his government was in a position to get
it revoked. While accepting the difference of opinion with the army on
the issue of revocation, Abdullah also expressed the desire of his
government to revoke all laws from the state that had lost their
relevance.

Finally he added that the revocation could not be linked with the
maintenance of law and order, since the AFSPA was meant to combat
militancy, which had come down to a mere five per cent of 2002 levels.
In support of his stand, the UN Special Reporter on Extrajudicial,
Summary or Arbitrary Executions, Christ of Heyns, on March 30, 2012,
also called for the repeal of AFSPA, saying that: AFSPA allows the state
to over ride rights. Such a law has no role in a democracy and should
be scrapped.3 The Justice Jeevan Reddy Committee, has also
recommended that the Act be revoked.

The army however has a different view. The former chief of army staff,
Gen V K Singh emphasized that the AFSPA, was a functional
requirement of the army. In view of the various shades of opinion
IDSA undertook a series of discussions, based on different perspectives
of the ongoing debate, in order to arrive at an informed
understanding of the issue. The topics included: the historical
backdrop; region specific views from J&K and Manipur; the human
rights and international humanitarian law perspective; the armys
viewpoint; the legal aspect; and the general perceptions regarding
AFSPA.

Humanizing AFSPA
Use the tool of court of inquiry for prompt and
transparent investigations
1. Obligatory to convene inquiry in all cases of civil deaths, grievous
injury or allegations sexual harassment etc. Do so within 72 hours.
2. Co-opt a civil official.
3. Woman officer to be a member/in attendance.
4. Venue to be easily accessible to local public.
5. Videotaping off all military operations for transparency.

Conclusion
The Armed Forces Special Powers Act is a necessary devil. This act is
necessary to maintain the political stability of a particular state. This act
also ensures the integrity of India. Many politicians oppose this act only
to achieve their political goals. Giving powers to the armed force never
mean that this will make them arbitrary in nature. It is evident from cases
that only due to the actions of some errant officers the image of the
Indian Armed Forces is tarnished. The Indian Armed Force is considered
as an elite force with defined ethics and strict rules and regulations. In
case of arbitrary exercise of power the forces have well equipped internal
legal system to take strong actions against convicted officers. To maintain
stability in the political system and counter terrorism activities this act is
necessary to stay in action with its full powers.

Bibliography
Websites
indianarmy.nic.in/Site/RTI/rti/MML/MML_VOLUME_3
www.hrdc.net/sahrdc/resources/armed_forces.htm
timesofindia.indiatimes.com/topic/AFSPA
www.lokniti.org/afspa.php
hrln.org/hrln/publications
www.dnaindia.com
www.assamtribune.com
www.indianexpress.com
www.greaterkashmir.com
www.igovernment.in/site/special-powers-act-tripuraextended

Thank You