By Maemuna Sadaf
According to the Disturbed Areas Act, which was approved in Indian special courts in 1976, special powers were given to the army. This act was implemented to maintain Law and Order Situation in areas where conflicts continued and Government of India is(was) facing problems. The Act, in which special powers are provided to armed forces, is called the Armed Forces Special Act (AFSPA). The AFSPA was approved in 1958, in replacement of the Emergency. It was used extensively before and during the Emergency. It is precursor to maintenance of internal security Act and can be invoked anywhere in the area deemed as disturbed.
This Act was imposed initially in Assam, following Jammu and Kashmir, in August 2001. AFSPA gives supreme powers to army personnel to crack down on insurgents in conflicted areas. After warning, army personnel can use any kind of force against the suspect including fire power. This Act gives the power to destroy fortified positions, hid outs and dumps of persons to be armed volunteers. The right to arrest without warrants any person who is merely deemed of having committed to cognizable offence.
AFSPA gives an army person the authority to enter and search any premises without any warrant. The authority to stop and search any vehicle which is suspected to be carrying weapons is also given to persons representing state. Even an act of murder (without proof of been guilty) is not challengeable in any court including military court. In other words, legal immunity is provided to Army Personnel for any crime against people of disturbed area.
Under this draconian Act, even an Army officer can have powers to protect anyone whom he thinks is acting in good faith for state. All the courts would remain inactive against any allegations on an army person. No one but only Central government of India can intervene otherwise.
This globally controversial Act has been criticized in India. On 31st March 2012, the UN asked India to revoke AFSPA from Kashmir and other areas of the country, saying it had no place in Indian democracy.
An Indian Retired Officer who was deputed in Jammu and Kashmir concluded that “Sometimes, we behaved like militants and the militants like security forces. The state machinery was perceived as tool of oppression and seldom seen as guardian. AFSPA is a bad act (Reported lately in a column “The Emergency that continues: 25 years of AFSPA in Jammu and Kashmir”)
The Home Ministry of India has released data that reveals human Rights Violations under the AFSPA Act are highest in Jammu and Kashmir. According to a document published through Right to Information (RTI) among 186 complaints 74 were against Indian forces and paramilitary forces. 24 complaints of death in army encounters among 12 cases were alleged as fake encounters. 16 complaints of deaths were reported in army firings, whereas 19 cases of rape and abduction were reported in one year. The Indian Supreme Court had also asked for details of over 1500 alleged fake encounters which occurred in last two decades.
Discussing more, the United Nations Working Group on Human Rights India (UNWGHRI) and United Nations Working Group on Human Rights (UNWFGHR, comprising of 12 Human Rights Organizations) and independent experts from India have recommended repeal of AFSPA. Human Rights Watch on September 22, 2017 and in World Reports on Human Rights 2018 has also mentioned the denial behavior of the Government of India regarding Human Rights.
In presence of UN resolutions, implementation of AFSPA in Kashmir might not hold scrutiny. Prudence then suggests that not only the Act be revoked but also the conflict is resolved.
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