The Armed Forces (Special Powers) Act (AFSPA) was passed on September 11, 1958, by the Parliament of India. It grants special powers to the armed forces in what the act terms as "disturbed areas" in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990 – due to the rising insurgency in the area. The act gives legal immunity to the armed forces, when they undertake measures to quell violent protests in a “disturbed region.” An officer is entitled to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area, prohibiting the assembly of five or more persons or carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.” It is entirely on the Centre and the state governments to decide whether an area should be declared as ‘disturbed’ or not.
The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons: Failure of the administration and the local police to tackle local issues. Return of (central) security forces leads to return of miscreants/erosion of the "peace dividend". The scale of unrest or instability in the state is too large for local forces to handle. In such cases, it is the prerogative of the state government to call for central help. In most cases, for example during elections, when the local police may be stretched too thin to simultaneously handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a 'disturbed area'. Continued unrest, like in the cases of militancy and insurgency, and especially when borders are threatened, are situations where AFSPA is resorted to.
By Act 7 of 1972, this power to declare areas as being disturbed was extended to the central government. In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain as they would be in a war theatre. Neither the soldiers nor their superiors have any training in civilian law or policing procedures. This is where and why the AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency situations which have been deemed war-like.
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:
For declaring an area as a 'disturbed area' there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary .The Act has been employed in the Indian state of Jammu and Kashmir since 1990.
The Controversy - To a layman, AFSPA indeed sounds like awarding the ‘Right to Kill’ to our armed forces. It makes no distinction between a peaceful gathering of five or more people and a berserk mob. So, even innocents – who have no role in creating a situation that results in that region being called ‘disturbed’, also come under the purview of the law.
Secondly, the law also states that, “no prosecution can be initiated against an officer without the previous sanction of the Central government”.
Thirdly, the decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. Leaders have now suggested that the act must be repealed from certain provinces – citing the reason that the imminent threat, due to which AFSPA was enforced in that province in the first place, has been neutralized over the years.
Unquestionably, even partial revocation of AFSPA will greatly curtail the freedom of the Forces, to carry out operations. A soldier deserves all the legal protection he can get, for the result of any action/decision he takes on the spot, acting in the best interests of the situation. While the politicos, as said earlier, are bent upon diluting AFSPA and scoring some political brownie points.
It will be unfair to entirely blame the Army for the situation we are in today. A far greater blame lies on the separatists who supported Militants and brought misery to local public. The army is only called in when the situation was serious enough and the state law enforcement forces were unable to handle the crisis. The precious time, during which the army takes the affairs into its own hands i.e. when AFSPA is in force, should be totally utilized in strengthening the state police forces. This will enable them to discharge their own duties of maintaining law and order in the region, by themselves, as soon as possible. Until and unless these basic issues are addressed, it will be farcical to remain optimistic.