Armed Forces Special Powers Act: A Colonial Law
September 19, 2022.
indian-occupied Kashmir.
The Armed Forces Special Powers Act or AFSPA is a draconian law enacted by the Indian parliament specifically to grant special powers to the Indian army operating in certain ‘disturbed’ areas. Although very brief in nature and comprising of only six sections, along with other special powers, the law comes with blanket impunity for the Indian army.
This army comprises of 1.4 million active personnel, and is the second largest in the world. While this law was initially enacted in the year 1958 to deal with the Naga liberation movements in the Northeast, in 1990 it was extended to Kashmir at the beginning of the armed struggle and popular mass uprising. Even though complaints and allegations of human rights abuses and war crimes by the Indian army operating under AFSPA have been widespread in the Northeast as well as in Kashmir, the number of active personnel in the Indian army are 1.4 million, and nearly a million of them have been posted in Kashmir. According to a media report from 2019, India stationed nearly a million soldiers in Kashmir ahead of abrogating its semi-autonomous status. This year, in the garb of organising its militarised pilgrimage in Kashmir, the Indian government deployed an additional 40,000 personnel. Naturally, the higher the number of armed personnel yielding special powers, the more the instances of abuse. These include extrajudicial killings, rapes, enforced disappearances, fake encounters, destruction of property, and use of human shields, to name a few.
Colonial History of AFSPA
While in its current form, the Armed Forces Special Powers Act was enacted in the year 1953, its actual existence dates back to the colonial era. The law was brought in as an ordinance in 1942 by the then British Viceroy of India, Lord Linlithgow. He brought in the Armed Forces Special Powers (Ordinance) to incarcerate leaders like Gandhi, Nehru, and Patel who at the time were leading the ‘Quit India’ movement against the British rule. Thus, draconian laws like AFPSA that give complete impunity to armed forces exist in colonial situations and are largely used against anti-colonial populations demanding their freedom. These laws also create a permanent martial law regime or a constant state of emergency where democratic norms are not observed.
Here’s a brief introduction to the Armed Forces Special Powers Act:
1. Disturbed Areas
The law is applicable to only areas designated as “disturbed” by the government. However, no definition of what constitutes “disturbed” has been provided anywhere in the enactment. This grants the Indian government the discretion to read anything into the definition of “disturbed area” and extend AFSPA to any area it wishes. While initially AFSPA was made applicable to all seven Northeastern states of India, it has gradually been withdrawn completely from three states and remains active only in 31 out of 93 districts of the remaining four Northeastern states.
2. Use of Force
Under section 4 of AFSPA, the Indian army can fire upon or use force upon any person “acting in contravention of any law or order for the time being in force in the disturbed area”, “after giving such due warning as he may consider necessary”. Again, neither has the extent of the “use of force” or “law or order” been defined nor what constitutes “due warning,” enabling army personnel to commit mass atrocities.
3. Destruction of Property
The Indian army has the power to destroy property including residential houses or commercial establishments, if they might be used as “shelter” or fortified positions from where armed attacks are made or ‘likely’ to be made. The key word here is ‘likely’. This word imparts ambiguity to the provision and becomes the grounds for the army to destroy almost any property they wish to. Indeed, home demolitions — considered a war crime under international law — by the Indian army are a regular occurrence in Kashmir.
4. Power to Arrest
The Indian army is also provided with unilateral powers to arrest anyone on the basis of suspicion. No judicial process is necessary before such an arrest is made and they are free to use “any force necessary,” which has once again been left to their discretion.
5. Conduct Searches
The Indian army can conduct searches in homes and other institutions on the basis of suspicion. No search warrants are needed for such searches. These searches have been a source of trauma for average Kashmiris as well as sexual harassment for Kashmiri women.
Further, the law says that any arrested person under AFSPA must be handed over to the local police station “with the least possible delay”. However, no particular time frame has been provided for such a hand over. Notably, between 8000–10000 Kashmiris have been subjected to enforced disappearances, where victims were never handed over.
6. Complete Impunity
Section 6 of AFSPA provides blanket impunity to the Indian army stating, “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” According to a media report, in the year 2018 the Indian Ministry of Defence in reply to a Right to Information (RTI) application claimed to have “no files” on the 47 cases where permission was denied to prosecute its armed forces for human rights violations in Kashmir. This was indirect admission of sanctioning of human rights violations in the region by the Indian government. Not only have no Indian army personnel been prosecuted for any of the heinous violations that they have been accused of over the years, but often the perpetrators of these violations are felicitated and celebrated as national heroes in India. In a specific case from the year 2017, a shawl weaver from Kashmir was used as a human shield by an Indian army major Leetul Gogoi. The said major was not only lauded over social media by Indians, but later also won a commendation from India’s army chief for the same act.
Even after 75 years of its independence from British colonial rule, the Indian government continues to use the same draconian law that was used by British colonial powers to stifle the anti-colonial movement in India. Does this not situate India as a colonial power in Kashmir?
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