Last week, the Centre extended the Armed Forces (Special Powers) Act for another month in Assam, declaring the entire state a “disturbed area”. But several news reports suggested that the Union home ministry would not extend the controversial law in Assam beyond August 31, barring a few troubled pockets of the state. If that happens, the controversial law will be lifted from most parts of the state for the first time in nearly 27 years.

However, Assam government officials, speaking to, contradicted these news reports. “AFSPA, since 1990, has always been imposed by the Union government,” said LS Changsan, commissioner and secretary of Assam’s Home and Political Department. “Now there is a change of mind. They [the Union home ministry] feel the state government should do it. So, we asked for some time to get our machinery in place. By August 31, we will have completed the required groundwork and will enforce the Act on our own.”

Who decides?

The Armed Forces (Special Powers) Act gives the military sweeping powers to search and arrest, and to open fire if they deem it necessary for “the maintenance of Public Order”, and to do so with a degree of immunity from prosecution. The law, a legacy of the colonial administration, was meant to address emergencies in regions affected by conflict.

For the law to be imposed, an entire state or a part of the state would have to be declared a “disturbed area”. Section (3) of the Act reads:

“If, in relation to any State or Union territory of which the Act extends, the Governor of that State or the Administrator of that Union territory or the Central Government, in either case, if of the opinion that the whole or any part of such State or Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers in necessary, the Governor of that State or the Administrator of that Union territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.”

When the Act was originally enacted in 1958, only the state government could declare an area disturbed. But it was amended in 1972, extending the power to the Union government. The reason for conferring this power upon the Union government is explained in the “Objects and Reasons” section that was appended to the Bill. It reads:

“The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowers only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State of Union Territory as ‘disturbed’. Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as ‘disturbed’, to enable its armed forces to exercise the special powers.”    

As it currently stands, state governments can suggest to the Centre whether the Armed Forces (Special Powers) Act should be enforced or not, but their opinion can be overruled by the governor or the Centre under Section (3) of the Act.

In practice, this has meant that state governments can promulgate the Act, but not rescind it on their own without the Centre’s approval. For instance, in 2015, Nagaland made a request for the removal of the Act, but the Centre refused.

In Assam, after ethnic insurgencies broke out in the 1980s, disturbed areas were notified and the Armed Forces (Special Powers) Act was imposed by the Centre.

A Union home ministry spokesperson refused to comment on why the Assam government could take the decision to extend the disturbed areas notification, instead of the Centre. The decision for this had been taken after consultation between the two governments, the spokesperson said.

‘Won’t withdraw AFSPA’

Changsan maintained that the Assam government thought the Armed Forces (Special Powers) Act was still necessary for the state. “We thought we’d remove it from some districts, but realised it doesn’t work that way,” she said. “The whole state is one unit, and militants don’t respect borders within the state. There are still a handful of extremely hardened militant organisations operating in the state, and some of them have camps in Myanmar. So, it is not the time for the abrupt withdrawal of AFSPA.”

The bureaucrat contended that there have never been large-scale human rights violation in Assam under the cover of the draconian law – in most states, the Armed Forces (Special Powers) Act has been criticised for creating a climate of immunity that enabled excesses by the armed forces.

Changsan claimed: “There are allegations of human rights abuses in neighbouring states, but the public here has no such complaint. Human rights abuses in Assam have been few and far between, even during the height of the insurgency.”

Changsan added that the state government had no intention to “undo the good work” that has been achieved through AFSPA. “There is no demand for that, anyway,” she said.

Civil society calls for repeal

However, activists and political observers in the state seemed to believe otherwise. Xonzoi Borbora, a Guwahati-based academic said that “there has been opposition to AFSPA [Armed Forces (Special Powers) Act] for as long as I can remember”.

“As a matter of fact, the AGP [Asom Gana Parishad – an ally of the BJP in the current government] came to power in 1996 with a promise to repeal AFSPA,” said Borbora, who was also associated with Manab Adhikar Sangram Samiti, a human-rights organisation, strongly opposed to the Act. “Thereafter, the Congress came to power in 2001 with a promise to review and repeal AFSPA.”

Journalist and scholar Sanjoy Hazarika echoed Borbora. Hazarika said that Assam’s civil society organisations have been consistently against the Act.

Depositions made by various civil society organisations before the Justice Reddy Committee, which recommended the repealing of the Act in its current form in 2006, also suggest that there has always been opposition to the Act in Assam. Several lawyers, professors, politicians, and civil society members who testified before the committee unequivocally demanded that the Act be rescinded.

Human rights violations

Similarly, Changsan’s contention that there were no large-scale cases of human rights abuses in Assam under cover of the Act does not stand up to scrutiny.

Reports compiled by the Manab Adhikar Sangram Samiti, primarily between 1991 to 2003, hint at several cases of fake encounters in the state by the Army and paramilitary forces.

According to data released by the Union home ministry in response to a query under the Right to Information Act, Assam recorded 58 complaints of human rights violations committed under the AFSPA from 2012-’16, the second highest in the country after Jammu and Kashmir.