This article is written by Gautam Badlani, a student of Chanakya National Law University, Patna. This article examines the provisions and judicial decisions relating to the Armed Forces (Special Powers) Act, 1958. The article highlights the special powers conferred on the armed forces by the Act and critically analyzes the debate regarding the need and harms of the AFSPA Act. The article also makes certain suggestions with respect to the amendment and changes that can be made to the Act to make it more efficient. 

This article has been published by Sneha Mahawar.

Introduction

The Armed Forces (Special Powers) Act (AFSPA) received the sanction of the Parliament on 11th September 1958. Item 2A of List I to the Seventh Schedule of the Constitution empowers the Union to deploy the armed forces for aiding the State’s civil powers. Recently, in April 2022, the government withdrew the Act from certain parts of Assam, Nagaland, and Manipur. The Act was withdrawn on account of the improving law and order situation and development in the region. This article discusses the salient features of the act and highlights the needs as well as drawbacks of the Act. 

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Need for the Armed Forces (Special Powers) Act, 1958

The AFSPA Act was needed to enable the armed forces to maintain peace and control violence in the northeast regions. The armed forces are conferred with wide powers through this Act, and such powers enable them to deal with internal security issues.

This Act is invoked only in those areas where the ordinary statutes and the local police are unable to prevent the insurgents. Article 355 of the Indian Constitution provides that the Central Government is under an obligation to protect the States from “external aggression and internal disturbance“. The AFSPA enables the Central Government to discharge its Constitutional obligation.

Historical perspective 

After India got independence from the British, the government was faced with several internal security issues which led to the promulgation of 4 ordinances – the United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance; Assam Disturbed Areas (Special Powers of Armed  Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; and the Bengal Disturbed Areas (Special Powers of Armed Forces)  Ordinance; and. Subsequently, the 1948 AFSPA was passed in order to consolidate all the aforementioned ordinances. 

In 1951, the Nagas voted in a referendum favoring independence from India and thereafter boycotted the 1952 general elections. Looting and arson were witnessed in several areas and resultantly, the AFSPA was passed. In 1957, the 1948 AFSPA was repealed but had to be re-enacted the next year in view of the poor state of law and order in the region. 

Scope and applicability of the AFSPA Act

The AFSPA originally applied to certain parts of Assam and Manipur. It was passed to prevent the unrest caused by the Naga tribes. The Act provided for a legal framework conferring special powers on the armed forces for restoring peace and order in the disturbed areas. This Act was thereafter amended several times to increase its scope. 

The Act was amended in 1972, and its scope was increased to cover the states of Arunachal Pradesh, Meghalaya, Mizoram, Tripura, and Nagaland. Furthermore, the 1972 Act conferred the power to declare an area to be a disturbed area on both the Central and State Governments. 

The Act was subsequently applied to Punjab and Chandigarh through the enactment of the Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983. It remained applicable in Punjab and Chandigarh for nearly 14 years and was withdrawn in 1997. 

Thereafter, the scope of the Act was extended to the State of Jammu and Kashmir by the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. The Act enabled the armed forces to deal effectively with the insurgency in the region. 

General overview of the AFSPA Act

The Act provides special powers to the armed forces to maintain law and order in disturbed areas. The armed forces are conferred with wide powers under Sections 4 and 5. It includes the power of arrest, carrying out search and seizure operations, destroying camps used for attacks or shelters used for training by armed rebels. The armed forces are empowered to use force to the extent of causing death. The Act also vests legal immunity on the members of the armed forces acting or purporting to act under this Act. The provisions of the Act appear to coexist with the provisions of the Code of Criminal Procedure as the provisions of the Code are followed in carrying out search and seizure and other operations under the Act. 

This Act is generally invoked to counter insurgency groups that challenge the integrity of the nation. The government states that this Act is essential to enable the armed forces to effectively tackle the insurgent groups. On the other hand, critics accuse the Act of conferring absolute powers on the forces. 

Section 5 of the Act provides a safeguard to the person arrested under the AFSPA. It provides that a person arrested under the Act needs to be taken over, at the earliest, to the nearest police station. Furthermore, a report of the circumstances of the arrest must also be made over to the police station. 

In the case of Peoples Union For Human Rights v. Union Of India (1991), numerous writ petitions were filed challenging the proclamation providing for the application of AFSPA in Assam. The Court provided the list of districts over which the concerned notification was to apply and directed the government to review the notification every month. The Court also stated that any person arrested under the Act must be taken to the police station with minimum delay and produced, within 24 hours, before the nearest magistrate. Furthermore, only those persons can be arrested who have, or are suspected to have, committed a cognisable offence. 

Justice BP Jeevan Reddy Committee 

The provisions of the Act were reviewed by a 5 member committee appointed by the Central Government under the chairmanship of Justice BP Jeevan Reddy. The Committee was tasked with the review of the AFSPA.

It considered whether any amendments needed to be made to the Act to give it a more humane character or whether there was a need to replace the entire Act with a new and more liberal Act. The Committee recommended that the Act should be repealed and the Unlawful Activities (Prevention) Act, 1967, should be amended and modified to include the relevant provisions of the AFSPA Act.

The Committee further recommended that the Central Government may deploy, for a period not exceeding 6 months, the armed forces upon the request of the State Government. The Central Government may deploy forces even without the State’s request. However, any deployment beyond 6 months would require Parliament’s approval.

Disturbed area 

The expression “disturbed area” is defined in Section 2(b). This Section provides that a disturbed area is an area which has been notified under Section 3. Section 3 provides that the Central Government or the Governor or Administrator of the State of Union Territory, respectively, can notify the whole or any part of such state or union territory to be a disturbed area. An area may be notified as disturbed if the Central Government or Governor is satisfied that the area is in such a dangerous condition that it is essential for the armed forces to come to the aid of the civilians. 

In the case of Inderjit Barua v. State of Assam (1983), the order of the Governor under Section 3 of the AFSPA Act was challenged before the Delhi High Court. The petitions, which were originally filed by the Guwahati High Court, were heard by the Delhi High Court as the Union Government as well as the State Government had preferred transfer petitions before the Apex Court. The Court, while upholding the promulgations of the Governor, made the following observations in the case:

  • The AFSPA would apply to an area only as long as the situation as contemplated by Section 3 subsits. Once the situation becomes normal and the declaration is rescinded, the powers of the Act would cease. 
  • With regards to the definition of the expression, “disturbed area,” the court noted that it means an area where peace and tranquility are absent. The Court observed that this term has been used in several legislations and it is not needed to specifically define it as the expression might have one different meaning in a sensitive and non sensitive area.
  • It is the duty of the State to safeguard the civil population and their properties. In order to discharge its duty, the State has the power to use legitimate force. This power is the basis of the Act but it should not be misused. 
  • While the Governor is empowered to declare an area as a disturbed area, such declaration should not be arbitrarily exercised. 
  • Where an area is declared to be disturbed without any rational basis or justification or where such a declaration is fanciful, it would not stand the test of arbitrariness and would be violative of Article 21 as it would not be deemed to be a declaration made in accordance with the procedure established by law.  
  • Whenever a person is found to be breaching the law and order, a warning must be given to him before using force. 

Powers of armed forces under the AFSPA Act

Section 4 of the Act deals with the special powers of the armed forces in a disturbed area. This Section confers special powers on a commissioned or non-commissioned officer, warrant officer, or officer of equivalent rank. Under this Section, they have the following powers:

  • The armed forces have the power to prevent five or more people from gathering. 
  • Furthermore, people in a disturbed area are prohibited from carrying weapons, ammunition, firearms or explosive substances. The armed forces may fire upon a person or use force, even to the extent of causing death, on a person who is found to be carrying such objects. 
  • The armed forces are empowered to destroy any such arms dump, position, or shelter that is likely to be used for attacks or from which attacks are made. Furthermore, the forces may destroy any structure used for hiding by armed absconders, gangs or for training by armed volunteers. 
  • The armed forces are entitled to arrest any person without a warrant who has committed, or against whom there is a reasonable suspicion that he has committed, a cognisable offense. The officer may use the necessary force to effect such an arrest. The forces may also enter and search any premises, for the purpose of making such an arrest, without a warrant.
  • The forces can search any premises without warrant for rescuing a person wrongfully confined or for recovering any stolen property or such periphery which is reasonably believed to be stolen or for recovering unlawful arms, explosives or explosive substances. 

In the landmark case of Harendra Kumar Deka v. State of Assam and Ors (2008), the petitioner’s son had driven over a 13 year old boy and was trying to escape. There were six other persons in the vehicle. The petitioner’s son was pursued by a mob subsequent to the accident and in order to escape, he was driving the vehicle at a very fast speed. At the first checkpoint, the police signaled him to stop, but the deceased did not stop the vehicle. He didn’t stop at the second check point either and hit a police personnel on the third signal. Subsequently, the police person fired at the vehicle with the intention of firing at the wheels. However, they hit the petitioner’s son, who succumbed to the injuries. The Court made the following observations in the case:

  • The Court noted that the armed forces can use deadly force only if they are satisfied that the use of such force is necessary for maintaining public order and after they have warned the person about the use of such deadly force. Furthermore, the deadly force can only be used against persons involved in any activity prevented by Section 4(a).
  • Section 6 does not confer absolute immunity. Where the act of the armed forces is not in strict compliance with the powers conferred by the Act, the Central Government is obligated to give its sanction so that the legal proceedings can be undertaken against the defaulting members. 
  • The Court, while referring to Article 21 stated that no person can be deprived of his life except in accordance with lawfully defined procedure.
  • The Court stated that while it is the duty of every organized state to control insurgent, terrorist, and extremist activities, the State cannot go beyond lawful authority in fulfilling its duty. 
  • The Court noted that the members of the police force did not form part of the “armed forces” as defined in the Act and hence were not entitled to the protection conferred by the Act.
  • Moreover, while the officers had the authority to use force for the purpose of effecting the arrest, the extent of force used was unjustified as they had no reason to believe that the person driving the vehicle was an extremist or belonged to any extremist group. 

In the case of Extra-Judicial Execution Victim Families Assn. v. Union of India (2016), enquiry into 1528 fake encounters was pleaded in a writ petition. The petitioner contended that the writ petitions before the High Court, the lodging of FIRs or complaints to the human rights commission had not resulted in any effective remedy. 

The Attorney General contended that investigation in some of the cases must not be reopened on account of the lapse of time since the incidents occurred. However, the Court held that such incidents must have been inquired into by the government at the time they occurred. Furthermore, the Attorney General pleaded that in those cases where the next of kin had not approached the court, no proceedings should be initiated. However, the Court held that the petitioner was raising the collective public interest of all the petitions. Lastly, the Attorney General submitted that since appropriate monetary compensation had been paid to the kin of the deceased, the proceedings should not be initiated. The Court held that compensation was meant to tide over the agony that they had to suffer due to the death of the family member. It could not be a ground for overriding legal proceedings.

The Court consequently directed the constitution of a Special Investigation Team (SIT). Since the Attorney General had expressed doubts regarding the impartiality of the Manipur police, the Court directed the CBI to investigate the allegations of the fake encounters. The Court also made a suggestion to all the States to constitute a State Human Rights Commission in the interest of liberty, justice, and human rights. 

Special safeguards under the AFSPA Act

Section 6 of the Act provides that no person acting or purporting to act in the exercise of powers conferred by the Act can be prosecuted or tried in a suit or other legal proceedings without the Central Government’s previous sanction. This ensures that legal proceedings are not commenced against the armed forces based on baseless and mala fide allegations. 

In Naga People’s Movement of Human Rights v. Union of India (1998), the validity of the AFSPA Act was challenged before the Constitutional Bench of the Apex Court. The issue arose as to whether Parliament was competent to legislate such a statute. The Court held:

  • The Court ruled that Parliament had the authority to enact such a law and that the Act was valid. 
  • Under Article 355, the Union is obliged to safeguard a state from internal strife as well as external aggression.
  • The deployment of the armed forces will not substitute the State’s civil power but rather will be for the aid of such civil power. 
  • The declaration of an area as a disturbed area under Section 3 has to be reviewed every 6 months.
  • A Central Act vesting the power to make a declaration under Section 3 on the Central Government is not in violation of the federal structure of the Constitution.
  • Sections 4 and 5 are not violative of Articles 14, 19, and 21 of the Constitution.
  • While effecting an arrest under Section 4, the armed forces must use “minimal force”.
  • Where a person is arrested under Section 4(c), he must, with the least delay, be handed over to the nearest police station’s officer in charge. Such person shall then be produced before the Magistrate within 24 hours of the arrest. 
  • While conducting search and seizure in exercise of the powers  conferred by Section 4(d), the provisions of the Code of Criminal Procedure must be followed.
  • The army authorities would issue a list of do’s and don’ts which has to be strictly followed by the forces while exercising powers conferred by Section 4.
  • Lastly, Section 6 of the Act, which mandates the Central Government’s sanction for prosecution of a member of the armed forces acting under this Act is not arbitrary in nature. However, the refusal of the government to give such a sanction can be subjected to judicial review.

In the case of Army Headquarters v. CBI (2012), five people, who were purported to be terrorists, were encountered. The matter was investigated by the CBI, which filed a charge sheet. The matter was also investigated by the Army as per the provisions of the Army Act. The Union contended that the Court was not empowered to take the chargesheet on record without obtaining the sanction of the government, as the sanction of the government was mandatory under Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (which is similar to Section 6 of AFSPA). The CBI, on the other hand, contended that the acts of the forces did not constitute part of their official duty and, hence, the sanction of the government was not required.

The Court held that the sanction of the Central Government is essential in accordance with Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. Such sanction has to be obtained before the charge sheet is filed before the criminal court. The Court held that the requirement for sanction arose at the stage of taking cognizance and not at the stage of investigation. Resultantly, the charge sheets were returned to the CBI. The Court held that where the legal proceedings are initiated without complying with the mandatory provisions of Section 7, the proceedings would stand vitiated. However, the previous sanction is not required in cases of court martials under the Army Act.

AFSPA Act and International Conventions

India is a signatory to several international conventions, including those concerning human rights. India ratified the International Covenant on Civil and Political Rights in April 1979. Article 6 of the Covenant provides that every person enjoys an “inherent right to life” and no person can be arbitrarily deprived of this right. However, as per Section 4 of the Act, the armed forces are empowered to use force and cause the death of disturbing factors based on their personal judgment. 

Article 7 of the Covenant states that no person is to be subjected to cruel, inhumane, or degrading behavior or punishment. It is often alleged that the AFSPA provides for inhumane punishments and thus violates Article 7 of the Covenant. 

Article 4 of the Covenant provides that, in a situation of emergency, a State can decide not to fulfill its obligations under the Covenant. 

Shortcomings and suggestions 

There is a need to clearly define the expression “disturbed area”. The Central Government must provide a clear set of factors that need to be considered before declaring an area to be a disturbed area. The guidelines should also be observed in proclamations made under state laws of similar nature. 

Furthermore, the Act does not establish a distinction between peaceful and violent protest. Resultantly, it prohibits all gatherings of five or more people regardless of the nature of the gathering. 

Furthermore, the forces must use the minimum force required to effect an arrest or search and seizure operation. The Act must also provide for the setting up of grievance centers where citizens can lodge their complaints. 

There need to be clearly defined procedures to be followed after making an arrest or detaining a person under this Act. In the case of Nungshitombi Devi v. Rishang Keishang, CM Manipur (1982), the Guwahati High Court issued a writ of habeas corpus as it was unsatisfied with the contention of the government that the petitioner had been released.  Such issues could be avoided by establishing a clearly defined post arrest or post detention procedure. 

The guidelines of the Apex Court in the case of Naga People’s Movement of Human Rights v. Union of India must be incorporated into the Act itself through appropriate legislation.

The Act has faced severe criticism for being violative of human rights. There have been several allegations of misuse of the absolute power vested by this Act. The armed forces must engage and coordinate with civil society members in their operations, as this will build trust among the people. 

Conclusion

The AFSPA has played a critical role in ensuring internal peace and security in the north eastern states. However, the guidelines issued by the Court must be strictly complied with and must also be incorporated in the statute itself. There is also a need to provide better training to the State police officials so as to make them more efficient. This would enable the State police to deal with rebellious groups and thus minimize the need for invoking the AFSPA Act. 

Frequently Asked Questions

  1. What is the historical perspective behind AFSPA?

The AFSPA Act is based on the Armed Forces Special Powers Ordinance of 1942, which was promulgated for the suppression of the Quit India Movement. Viceroy Linlithgow promulgated it. Subsequently, several Indian leaders were arrested in exercise of the powers of this ordinance.

When India got independence from the British, the need for a special Act was felt to deal with the Naga insurgents in Assam and Manipur. Subsequently, the Act was enacted, and it was based on the 1942 ordinance. 

  1. Which was the first state over which AFSPA was imposed?

The Act was imposed in Assam in 1958. The Act was applied to the entire state till 1990. However, since then it has been withdrawn from several parts of the state on account of an improving law and order situation. 

  1. In which case was the application of the Chandigarh Disturbed Areas Act, 1983 in the city of Chandigarh struck down? 

In the landmark case of Surinder Bhardwaj v. UT of Chandigarh (2012), the continuation of the notification declaring Chandigarh to be a disturbed area under the Chandigarh Disturbed Areas Act, 1983 was challenged. The petitioner contended that the law and order situation in the city no longer warranted the application of the Act and, hence, it must be withdrawn. The atmosphere of the city was peaceful and hence the application of the Chandigarh Disturbed Areas Act was totally unjustified.

On the other hand, the respondents contended that the petition was not maintainable as it did not seek to secure the public interest but rather was filed for mere publicity. The notification providing for the application of the special Act provided the people with a sense of security, and hence the continuation of the declaration was justified. 

The Court noted that the disturbed area declaration had been withdrawn from the State of Punjab since July, 2008, while Chandigarh continued to be a disturbed area. The respondents were unable to inform the Court as to when the powers contemplated by the Act had been employed. They merely stated that the application of the Act was necessary on the basis of the intelligence report received by them. However, no such fact was brought to the notice of the Court. 

The Court held that even if the continued notification did not add to the financial burden of the exchequer, the tag of being a disturbed area spoiled the beauty of the city and had a deterring effect on tourists visiting the city. Moreover, investors and multinational companies might not be interested in investing in a disturbed area. Thus, the notification declaring Chandigarh to be a disturbed area was stuck down.  

References 

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