Question.
“Armed Forces Special Power Act” of the Parliament of India has come under criticism by the states as being draconian and sometimes unconstitutional. Examine analytically.
( UPPSC, UP PCS Mains General Studies-III/GS-3 2019)
Answer.
The Armed Forces Special Power Act of 1958 ( AFSPA Act) is an act of the parliament of India that grants special powers to the armed forces deployed in “disturbed areas” to maintain public order. The act was maximum applied in the disturbed areas of the North Eastern States and Jammu and Kashmir. However, it was revoked in Meghalaya in 2018 after 27 years. AFSPA Act was also gets revoked in Tripura Act in 2015. In the present (2023), it is fully applicable in 31 districts and partially in 14 districts which are implemented in four northeastern states, which are in Assam, Arunachal Pradesh, Nagaland, and Manipur.
The act faces criticism by states and other human rights organizations for being draconian and sometimes un-constitutional, because of the following nature-
Draconian natures:
The AFSPA Act is draconian in nature as it gives widespread rights to the armed forces and also protects them from accountability in military operations.
Wide-ranging powers: The AFSPA act grants the armed forces the power to arrest without warrant, use force, and even open fire if necessary, leading to the potential for abuse of power and it also violates various human rights.
Lack of accountability: The AFSPA Act provides legal immunity to armed forces personnel for their actions during operations. This provision makes the whole military operation unaccountable.
Unconstitutional nature:
AFSPA act is unconstitutional in nature as it violates fundamental rights and the philosophy of federalism.
Violation of fundamental rights: AFSPA violates various fundamental rights guaranteed by the Indian constitution, such as the right to life, liberty, and equality before the law. The act's provision to search and arrest without a warrant is seen as a violation of fundamental rights.
Violation of Federalism: Some states have criticized AFSPA as in violate the principles of Federalism by giving excessive powers to the central government and diluting the authority of the states in maintaining law and order within their territories.
Despite criticism of the Draconian and unconstitutional nature of the AFSPA act by some states, the government argues that the act is necessary to tackle insurgency and maintain peace in internally disturbed areas. Justice Jeevan Reddy's committee has been appointed by the central government in 2004, recommended the repeal of the AFSPA Act, and suggested an alternative framework to deal with such internal disturbance.
In conclusion, the Armed Forces Special Power Act is being criticized because of its unrestrained power, unaccountability in operations, and violation of fundamental rights. However, it is important to be noted that the act is necessary to maintain the law and order and security of the general public in disturbed areas. However, there is a need to debate to maintain the balance between national security and the protection of human rights.
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