A brutal military law is among the core election issues in at least 5 Indian states voting today

• Polls open in states of Jammu and Kashmir, Assam, Nagaland, Manipur and Arunachal Pradesh where the Armed Forces Special Power Act (AFSPA) is still enforced.
• The controversial colonial law allows the governed to deploy armed forces in places that they believe are ‘disturbed areas’.
• Congress has promised to amend AFSPA to address international concerns.
  

The colonial law of Armed Forces Special Power Act (AFSPA) is still enforced in four states that will be voting today — Jammu and Kashmir, Assam, Nagaland, Manipur and Arunachal Pradesh.

The controversial law has often been called into question for its human rights violations. But, the Indian National Congress has promised to amend the law should they come into power.


Earlier this week, AFSPA was withdrawn partially in the state of Arunachal Pradesh after being in force for 32 years but its still enforced in three districts — Changland, Tirap and Longing. Even Meghalaya was a AFSPA state as recently as last year until it was withdrawn completely.

While supporters of the act cite that AFSPA is just an ‘extraordinary measure’ in the face of ‘extraordinary situations’, critics believe that the act is being misused to conduct fake encounters and the sexual exploitation of women.

What is AFSPA?

AFSPA — enacted by the parliament in 1958 — gives the central or state government the right to call in the armed forces to help the local authorities in places classified as ‘disturbed areas’.

The legal immunity of the act allows security forces to arrest people, search private property, and ban the possession of firearms without warrant is as long as they at least have ‘reasonable suspicion’ that a person is about to commit a cognizable offence.

For maintaining public order, AFSPA also allows armed forces to prohibit a gathering of five or more people in an area — even by force.

The act itself is from the colonial days and was enacted as a reaction to the Quit India Movement led by Mahatma Gandhi in 1942. The arrest of Gandhi, Jawaharlal Nehru, VB Patel and other activists left the movement leaderless and incidents of violence erupted in different parts of the other. Viceroy Linlithgow used the Armed Forces (Special Powers) Ordinance, 1942 to control the riots.

In 1947, the one ordinance was split into 4 smaller ordinances to handle violence resulting from the partition efforts — but it was also repealed within the same year.

AFSPA was only brought back in 1958 for Assam and Manipur before gradually encompassing the other seven sister states of the north east as well as Jammu and Kashmir.

Issues with AFSPA

The argument for enacting AFSPA in India was that it is a more efficient way to handle insurgencies. The powers allotted to armed forces allows them to protect the boundaries of the country. And removing strict law from the picture allows the armed forces to carry out orders unhindered, not to mention to morale boost in bringing the rule of law to ‘disturbed areas’.

But AFSPA is reportedly exploited by people in the armed forces as well. In the name of national security, incidents of fake encounters, sexual exploitation of women and other human rights violations have been brought to light. ‘

Activists like Irom Sharmila who went on a hunger strike for nine years to protest against AFSPA strongly believe that AFSPA overrides dozens of civil rights including the right to freedom of expression and the right to free association.

That being said, if a wrong is committed by anyone in the army under AFSPA, they can be prosecuted in a court of law — but the central government needs to sanction an approval.

Amnesty International’s report calling for the end of AFSPA in Jammu and Kashmir cited 58 case studies where the act was allegedly used in excess by the armed forces.


Many even compare the AFSPA to the Rowlatt Act where the British could imprison any citizen on the basis of suspected terrorist activity against British India for up to two years without there necessarily being a trial.


The Indian Army, the organisation actually being accused of these acts, has barely come out in the open to express its stance on AFSPA. Essentially, the act is a last resort. The army is only called in once the situation is beyond the capabilities of the civil administration, the police and the central armed police forces.

Congress’ promise

Congress, in its election manifesto, has said that they will bring amendments to AFSPA should they win the general election. They faced heavy backlash from the opposition saying that this is an ‘anti-national’ approach and that Congress is compromising on India’s national security.


Even Arun Jaitley, the current minister of finance and corporate affairs who aligns with the BJP, and Palaniappan Chidambaram, former union minister of finance and member of Congress, exchanged some harsh words on Twitter.



That being said, multiple observations made different committees, like the Justice Santosh Hegde Committee and the J.S. Verma Committee, have found the AFSPA to be arbitrary and have recommended that it should be repealed. The former even explained that rather than create peace in the north east, AFSPA has widened the divide between the people living in the peripheries of India and the mainland.