According to disturbed areas
act which was approved in Indian special courts in 1976, special powers were
given to army. This act was implemented to maintain Law and Order Situation in
the areas where conflicts are continued and Government of India is facing
problems. The act in which special powers are provided to armed forces is called
Armed forces special act (AFSPA). 44th amendment in Indian Constitution ensured
that Emergency will not be implemented in India. On the contrary, AFSPA was
approved in 1958 in replacement of Emergency. It was used extensively before and
during emergency. It is precursor to maintenance of internal security Act and
can be invoked anywhere in the area certified 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 guessed of having committed
to cognizable offence.
According to AFSPA, an army person has 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 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 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.
Writing more, globally controversial act has also been criticized in India. On
31st March 2012, UN asked India to invoke 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”)
In Kashmir implementation of AFSPA has started a new era of atrocities. Use of
pellet guns and other fatal weapons became habitual for Indian Army. Report
shows that his act is misused specially in Kashmir to suppress Freedom Movement.
After martyrdom of a young Hurriyat Leader Burhan Wani, Indian forces have
crossed all the limits of atrocities.
Indian Union home ministry has released data that reveals human Rights
Violations under the AFSPA Act are highest in Jammu and Kashmir. According 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. 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 has 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 Indian Government
regarding acceptance of Key Human Rights.
Concluding more, beside criticism and appeals to revoke the draconian emergency
act AFSPA, it is still in place since 25 years. One must understand that Kashmir
is not a disturbed area of Indian federation where as it is a disputed territory
among Pakistan and India.
According to the resolutions of UN Kashmir issue will be resolved according to
the will of Kashmiri people. In presence of these resolutions, implemented of
AFSPA in Kashmir is illegal. It was implemented to suppress Freedom Movement of
Kashmir but remained unsuccessful even after 25 years of implementation. Freedom
movement will remain continued till freedom of Kashmir.