Theme: Armed Forces (Special Powers) Act

When it appears to the government that a dangerous situation has developed in a certain area of the country and it requires the armed forces to take control of that area, such an area is declared as a disturbed area. The provisions of AFSPA apply in such disturbed areas.

To declare an area as a ‘disturbed area’ there must exist a grave situation of law and order on the basis of which the Governor/Administrator can form an opinion that the area is in such a disturbed or dangerous condition that the use of armed forces is necessary.

Such a declaration has to be for a limited duration and there should be a periodical review of the declaration before the expiry of six months.

The government has to do this declaration through a notification in the Official Gazette, which is a periodical publication which contains public or legal notices.

Example: The Government of India declared Jammu and Kashmir as a disturbed area in 1990. It was declared a disturbed area because of the rise in insurgency and militancy during that time.

The Armed Forces (Special Powers) Act, 1958 (AFSPA) grants certain ‘special powers’ to the members of the armed forces in disturbed areas. This law extends to the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Jammu and Kashmir. Jammu and Kashmir has a separate AFSPA enacted in 1990 which is similar to the AFSPA, 1958, except for a few provisions.

Under AFSPA the Military is considered to be “armed forces”. When the Air Forces operate on the ground, then they are also known as “armed forces” and have the special powers and duties under AFSPA. Other armed forces of the central government such as Border Security Force (BSF) are also included under AFSPA. However, the Navy is not included under “armed forces”.

There are certain officers of these armed forces who have been granted special powers i.e. power to shoot and use force, destroy shelters/storage, arrest without a warrant, enter and search. These band of officers include:

• Commissioned officers,
• Non-Commissioned Officers,
• Warrant Officers.

The power of the armed forces to shoot and use force can be used against:

• any person who is violating any law, or
• any person forming an assembly of five or more people, or
• any person carrying weapons or things capable of being used as weapons or firearms, ammunition or explosive substances, while these are prohibited in the disturbed area. For example, if carrying lighters is prohibited and you carry one, the army can use force against you.

An officer can use these powers if they think that it is necessary to do so to maintain public order. The officer has to give due warning to the person they are shooting at.

Example: In disturbed areas various activities are not allowed. If a group of armed people create a law and order problem and try to enter a certain area where they attack an army convoy or violate the law in any other way, the armed forces officer can respond to them by shooting them.

The type of places that the army has the power to destroy:

• Places where armed attacks are made usually or are likely to be made or are attempted to be made by suspected persons, or
• Any structure used as a training camp for armed volunteers, or
• Any place utilised as a hide-out by armed gangs or people who are wanted for an offence by the police.

Example: If certain armed people are hiding at a position on a hill or in a house, or anywhere and the army suspects that they may make an attack, the army can seal that area and use arms and ammunition to destroy the hideout.

An armed forces officer can arrest any person in a disturbed area without a warrant for:

• Committing a cognizable offence; or
• If there is a suspicion that a cognizable offence will be committed.

The officer can use force as required to effect the arrest.

When an army personnel arrests a civilian under this law, the law requires the army to hand over the person to the nearest police station immediately.

The law usually requires that a search warrant is obtained by an authority in order to search a place. But under AFSPA, the armed forces have special powers to search a place without a warrant.

The officer can enter and search any premises without a warrant for any of the following acts:

• To arrest someone;
• To recover any person believed to be wrongfully restrained or confined;
• To search any property reasonably suspected to be stolen property;
• To search for any arms, ammunition or explosive substances believed to be unlawfully kept in the premises.

No one can file any case against any armed personnel, except when there is special permission from the Central Government. Under this law, if a case has to be registered in court against an army personnel or anyone from the armed forces for a crime they have committed, then the court proceedings can only take place when there is permission from the Central Government.

Only a handful of cases have been instituted against army personnel under AFSPA.

Example: Chitrakshi’s husband Sumeysh has been killed by an officer of the armed forces and she wants to file a case against this in a police station. The police station will register her FIR, but to fight her case in the court, she has to seek permission from the Central Government. Only when permission is granted by the Central Government, i.e the Home Ministry, a trial against the officer of the armed forces can be started.

As per the Supreme Court guidelines, there are certain acts which the army should do, and acts which are prohibited. These Supreme Court guidelines are as under:

What should the army do?

Before the Operation

• The army should be carrying out the operations only in areas which are declared as ‘Disturbed Areas’.
• Only an officer who is a JCO (Junior Commissioned Officer), WO (Warrant Officer) and NCO (Non-Commissioned Officer) can open fire or arrest.
• The army has to get information from local civil authorities, before conducting any raids or searches.
• The army should try to keep a representative from the civil administration during such raids.

During the Operation

• Open firing can be done only after due warning to the suspect.
• The army has to make sure that the person(s) is acting in contravention of law and order. Only then can they open fire.
• The army should arrest those who:
  • Have committed cognizable offences, or
  • Who are about to commit cognizable offences, or
  • Person(s) against which reasonable grounds exist to prove that they have committed or are about to commit cognizable offences.
• The army should keep in mind the following directions:
  • The army should not harass innocent people.
  • The army should not destroy property of the public.
  • The army should not unnecessarily enter into houses of people who are not connected to any unlawful activities.
• Women should not be arrested without the presence of female police. Women should only be searched by female police.

After the Operation

• The army should make a list of persons arrested.
• The persons arrested should be handed over to the nearest police station with least possible delay and a detailed police report should also be forwarded with the arrested to the police station.
• If there any delays in handing over suspects to the police, then it must be justified by the army. The least possible delay must be 2-3 hours and it may be extended to 24 hours depending on the situation.
• After a raid is done, a list of arms, ammunitions and other materials should be made and this should be handed over to the police station with the seizure memo.
• The army has to make a record of the following:
  • Area where the operation is launched.
  • Date and time of the operation.
  • Persons participating in such raid.
  • Record of the commander and other officers/JCOs/NCOs forming part of the force.
• Medical relief should be given to any person injured during an encounter and if the person dies, the body should be immediately handed over to the police.

While dealing with the Civil Court

• All the directions given by the Supreme Court or the High Court should be followed.
• If any army personnel is summoned by the Court:
  • The decorum must be maintained and proper respect must be paid to the Court.
  • Questions should be answered politely and with dignity.
• Detailed record of the entire operation should be maintained. The information must be correct and clear.

What should the army not do?

• A person should not be kept in custody for any period longer than required and should be handed over to the nearest police station.
• No force should be used on a person arrested, except if they are trying to escape.
• Third-degree methods, which are methods which cause pain and suffering, should not be used against those arrested or under suspicion to extract information or confessions out of them.
• The armed forces should only arrest a person. They should not do any form of interrogation.
• If any person has to be released, then it must be done through the civil authorities.
• Official records should not be tampered with.
• The armed forces cannot take back a person after they have been handed over to the civil police.

Most of the provisions of the Armed Forces (Special Powers) Act, 1990 (AFSPA) applicable in Jammu and Kashmir are similar to the Armed Forces (Special Powers) Act, 1958 which is applicable in the North-Eastern States. The armed forces have broader investigation powers in Jammu and Kashmir:

• Under the AFSPA (Jammu and Kashmir), the powers of the armed forces extend to breaking open any lock, door, almirah, safe, box, cupboard, drawer, package or other thing, if the keys of these cannot be found.
• Any Commissioned Officer, Warrant Officer or a Non-Commissioned Officer can stop, search and seize any vehicle or vessel if they suspect that they are carrying:
  • Any person who is a proclaimed offender;
  • Any person who has committed a non-cognizable offence;
  • A person against whom a reasonable suspicion exists that they have committed or is about to commit a non-cognizable offence;
  • Any person who is carrying any arms, ammunition or explosive substance unlawfully.