Armed Forces (Special Powers) Act (AFSPA)

Posted 21 May 2024

4 min read

Why in the news?

The Armed Forces (Special Powers) Act, 1958 (AFSPA) has been extended by the Centre to eight districts in Nagaland and three districts in Arunachal Pradesh.

About AFSPA, 1958

An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura that lies in the North Eastern sector.
Power to declare areas to be disturbed areas under Section 3 of the Act: 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.
- Disturbed area is an area in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary.
Special powers of the armed forces under Section 4: Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces is given "special powers" under AFSPA, although they must be exercised with extreme caution.
- After giving due warning as considered necessary, Fire upon or use force, even causing death, against any person acting in contravention of laws:
- Prohibiting assembly of 5 or more persons
- Prohibiting carrying weapons or firearms/ammunition/explosives.
- If reasonable suspicion exists, can also arrest a person without a warrant; enter or search a premises without a warrant
Unless otherwise authorized by the central government, Army soldiers operating under the AFSPA are shielded from all legal actions.

Whether AFSPA is to be repealed?

Arguments in favour of Repealing AFSPA

Arguments Against Repealing AFSPA

Colonial-era law: AFSPA is compared to the Rowlatt Act, allowing arrests based on suspicion without due process.
Violations of Fundamental Rights: It violates citizens' fundamental rights under Articles 14, 19, 21, 22, and 25 of the Constitution.
Violates International Law: AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture.
Lack of Accountability: AFSPA grants sweeping powers to armed forces and immunity from prosecution without central government approval.
Militarization of Governance: Critics argue that AFSPA contributes to the military ruling, undermining democratic principles and civilian authority in conflict-affected areas.
Centre-State conflicts: Law and order is a state subject, and concerned states are always in a better position to carry out direct assessment on ground. However, AFSPA erodes states' autonomy even during peaceful times.

Safeguard boundaries: AFSPA has enabled military forces to protect national borders effectively.
Constitutionality Valid: SC upheld the Act in the Naga People’s Movement of Human Rights v Union of India (1997) case, with guidelines to prevent abuse, such as consulting the state government before declaring a region as disturbed and there must a periodic review of the situation.
Effective counter-insurgency: AFSPA is essential for combating insurgent groups, particularly in Kashmir and the northeast.
National Security Imperative: AFSPA ensures a coordinated response to insurgency and terrorism, which individual states may lack.
Measures to curb misuse: In the Extra Judicial Execution Victim Families vs Union of India & Anr (2016) Case, SC ruled that AFSPA does not provide invincible immunity to armed forces from prosecution.

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Way Forward

Building trust and confidence: Implement a bottom-up governance model to empower grassroots communities and bridge gaps between people and government.
Prioritizing Peace Accords: To remove AFSPA, first, the government must push for formalising a concrete peace accord with such insurgent groups and this can be done by providing proper rehabilitation.
Enhanced Connectivity: It will directly impact the security scenario of India’s North East and in the long run, will contribute to the complete removal of AFSPA.
Adherence to human rights norms which strengthens the counterinsurgency operations.