Explained : Does AFSPA Give Total Immunity To Armed Forces For Killing Civilians?

The death of at least 14 civilians in Nagaland on Saturday evening as a result of the action of the Armed Forces has brought back into focus the controversial Armed Forces (Special Powers) Act, 1958. The Act which came into force in the context of insurgency in the Northeastern States decades ago provides "special power" to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces,etc. Do the "special powers" granted under AFSPA gives total immunity to the armed forces for any action taken by them? Are human rights considerations invalid if action taken under the law is in question? To understand the interplay between human rights and AFSPA powers one must understand the "special powers" that AFSPA grants. Armed Forces (Special Powers) Act, 1958 Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in "disturbed areas." AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law. The Act further provides that if "reasonable suspicion exists", the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms. The 'special powers' which are spelt out under Section 4 provide that: (a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons etc are in force in the disturbed area; (b) Power to destroy structures used as hide-outs, training camps or as a place from which attacks are or likely to be launched etc; (c) Power to arrest without warrant and to use force for the purpose; (d) Power to enter and search premises without warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc. However it is crucial to note that AFSPA is a special law that is in force only in certain parts of the country- what the Act refers to as "disturbed areas." A disturbed area is one which is declared by notification under Section 3 of the AFSPA. As per Section 3, it can be invoked in places where "the use of armed forces in aid of the civil power is necessary". 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. A suitable notification would have to be made in the Official Gazette. AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam. In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force. AFSPA: A License to Kill? Section 4 of the Act granted officers the authority to "take any action" even to the extent to causing the death. The powers granted under Section 4 are further bolstered by Section 6 which provides that "no prosecution, suit or any other legal proceeding can be instituted, except with the previous sanction of the Central Government, against anything done or purported to be done in exercise of the powers conferred by the Act." Even though the Act gives sweeping powers to security forces even to the extent of killing a suspect with protection against prosecution, a closer look at Section 4 shows that the authority to cause the death of a person is contextually limited by specifying that such action can be taken only if the officer is of the opinion that it is necessary to do so for the maintenance of public order and after giving due warning as he may consider necessary. It further provides that action can be taken against persons who are in contravention of law and order in force prohibiting the assembly of five or more persons. While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in death of civilians. These extra-judicial killing became the attention of the Supreme Court in 2016 wherein it clarified that the bar under Section 6 would not grant "total immunity" to the officers against any probe into their alleged excesses. In Extra Judicial Execution Victim Families Association v Union of India, a bench of Justices Madan Lokur and U.U.Lalit gave this ruling on a PIL filed by Extra Judicial Execution Victim Families Association alleging 1,528 fake encounter deaths in Manipur in the last decade and demanding a probe by a special investigation team. The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offence. The Court further noted- "If an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court ...

Explained : Does AFSPA Give Total Immunity To Armed Forces For Killing Civilians?

Sneha Rao

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