Sample Lecturette 7: Armed Forces Special Powers Act | Preparation Tips for SSB Interview - CDS PDF Download

What is AFSPA?

AFSPA is a law that grants special powers to armed forces, security forces, and state and parliamentary police forces to maintain law and order in areas experiencing disturbance.

AFSPA Act PDF

Under the Armed Forces Special Powers Act, the Indian army and police (both central and state) are given authority to use lethal force against rebels or protesters, conduct searches in homes or properties suspected of being used by rebels, and destroy them. This applies to areas designated as disturbed by the Indian Home Ministry. The AFSPA allows security forces to arrest individuals without a warrant if they have committed or attempted to commit a known offence, even based on reasonable suspicion. This act empowers security forces to take necessary actions to uphold the law in disturbed areas.
The impact of AFSPA can be viewed from different perspectives. While the government and armed forces argue that it reduces aggression and rebellion, some critics raise concerns about human rights violations associated with this act.

Armed Forces Powers Under AFSPA

The AFSPA provides special powers and legal protection to armed forces operating in disturbed areas. These powers authorize the following actions by armed forces against protesters or individuals violating laws and orders:

• Armed forces in disturbed areas have the freedom to use any force, even if it results in death, to maintain public security and order.
• The AFSPA grants armed forces the power to demolish arms stockpiles, hideouts, shelters, training camps, escape routes, or any other locations where armed attacks or other offences may be planned.
• Forces can arrest individuals without a warrant if they have committed known offences or are suspected of attempting such offences. They may employ any necessary force for such arrests.
• In the event of an arrest under the AFSPA, the armed forces must promptly hand over the detained person, along with a report on the circumstances of the arrest, to the officer in charge of the nearest police station.
• Armed forces have the authority to search buildings or premises in disturbed areas to apprehend such individuals and rescue unlawfully restrained people. Premises may also be inspected if there is suspicion of explosives or other dangerous weapons being concealed.
• Under the Armed Forces Special Powers Act, armed forces can stop and search vehicles or vessels if there is suspicion of them carrying individuals or dangerous weapons.
• All armed forces personnel and officers enjoy legal protection for their actions in disturbed areas under the AFSPA. They are exempt from prosecution, suits, or other legal proceedings. Furthermore, the government's declaration of an area as disturbed cannot be subject to judicial review.
• The AFSPA also safeguards individuals who act in good faith within the area or have no intention of inciting aggression or violence from any legal consequences. However, this does not apply without the approval of the Central Government to exercise the powers discussed in this Act.

Disadvantages of AFSPA

Critics strongly oppose the AFSPA act because they believe it can lead to human rights abuses and fuel violence in troubled areas. They argue that the act violates human rights and raises concerns about its legality under Indian law. Experts from various countries have also questioned the act's validity, particularly in relation to Article 4 of the ICCPR. They have called for the revocation of AFSPA, considering it an outdated law from the colonial era that disregards current human rights standards. It is often described as a severe and objectionable law that clearly violates international legal principles.

Advantages of AFSPA Act

The armed forces maintain that AFSPA is essential for protecting borders, reducing violence and insurgency, and other positive reasons. They fully support and agree with the act.
According to the armed forces, AFSPA has empowered them to efficiently safeguard borders for many years. They believe the act enhances their ability to suppress rebellions, especially in the northeastern regions and Kashmir, where dealing with insurgent elements requires a strict law.
The armed forces also argue that the act contributes to their mental well-being and ensures law and order in troubled areas. They warn that if the act is revoked, it may encourage citizens to file lawsuits against the armed forces. Furthermore, they believe that without this law, the state armed forces alone may not have sufficient security capacity to fulfil their assigned roles. The armed forces contend that AFSPA provides adequate safeguards for civilians as well.

AFSPA States

The Armed Forces Special Powers Act (AFSPA) initially applied to specific troubled areas in the hilly regions of North-east India. A disturbed area is determined by a notification under section 3 of the AFSPA, which enables the use of armed forces to maintain civil order. The authority to declare a state or a part of it as a disturbed area lies with the central government, state government, or the administrator of a Union Territory.
Currently, AFSPA is enforced in Nagaland, Assam, Manipur, and a portion of Arunachal Pradesh. However, Tripura withdrew from AFSPA in 2015, after being subjected to it for 18 years. In Punjab, the act was implemented in 1983 but was later repealed by the state government in 1997. In Jammu and Kashmir, AFSPA has been in effect since 1990.

Features of AFSPA Act

Section 3 of AFSPA:
The Governor of a state or an administrator of a Union Territory can impose the act if there is a prevailing disturbed situation, either in part or throughout the area.
A declaration of disturbance in the central gazette is sufficient to enforce AFSPA in the specified area. However, this section requires periodic review every six months from the initial imposition.
Section 4 of the Act:
AFSPA grants the armed forces the authority to prohibit gatherings of five or more people in a designated area.
If they suspect any person or group to be in violation of the law, the armed forces can use force after issuing a warning.
They are also empowered to search and stop any vehicle if there is reasonable suspicion of it carrying weapons.
In case of reasonable doubt, the army can make arrests without a warrant for cognizable offences.
The armed forces can enter and search premises without a warrant under the provisions of AFSPA.
Section 5 of AFSPA:
Anyone arrested must be promptly handed over to the relevant officer along with a report detailing the reasons for the arrest.
Section 6 of the Armed Forces Act:
No legal action, prosecution, or lawsuit can be initiated against a person for any act performed in good faith under the powers conferred by AFSPA, unless authorized by the central government.

Controversies Related to AFSPA

Despite receiving full support from the government and armed forces, the Armed Forces Special Powers Act (AFSPA) has sparked numerous controversies, including the following:

• Human Rights Violations: Critics argue that the extensive powers and immunity granted to the armed and security forces under the AFSPA often result in human rights abuses, including staged encounters.
• Abuse of Unrestricted Powers: Certain powers granted to the security forces, such as the authority to shoot suspects or rebels on sight, infringe upon the fundamental right to life. This places the lives of individuals at the mercy of an officer's judgment, disregarding their inherent value.
• Violation of Fundamental Rights: The provision in the AFSPA that allows arbitrary arrest and detention of individuals goes against the fundamental rights enshrined in Article 22 of the Indian Constitution.
• Impunity from Legal Action: The AFSPA shields security forces in disturbed areas from any form of prosecution, lawsuits, or legal proceedings. However, such immunity should only be granted with prior authorization from the central government.

Supreme Court’s Views on AFSPA

In a 1998 judgment during the Naga People's Movement against the Union of India, the Supreme Court upheld the imposition of the Armed Forces Special Powers Act.

Supreme Court Rulings in 2016

• In its 2016 judgment, the Supreme Court emphasized that every death occurring in disturbed areas, regardless of whether the person is a civilian or insurgent, should be thoroughly investigated by the Criminal Investigation Department (CID) under the direction of the National Human Rights Commission (NHRC).
• According to the statement, not every armed force member who violates prohibitory orders should be treated as an adversary.
• Even if the individual is deemed an enemy, a meticulous investigation must be conducted, as every Indian citizen is entitled to the fundamental rights outlined in Article 21 of the constitution.
• Furthermore, in cases where a suspect is identified as an enemy under the AFSPA, an evaluation should determine whether the use of force was excessive or retaliatory.
• No member of the army enjoys absolute legal immunity when committing a crime.

Jeevan Reddy Committee’s Proposals About AFSPA Act

In November 2004, the Central government formed a committee consisting of five members to review the Armed Forces Special Powers Act. Justice B P Jeevan Reddy led the committee in reevaluating the requirements of the AFSPA Act in the northeastern states.
The committee suggested that a suitable alternative should replace the AFSPA and it should include appropriate provisions. They also recommended upgrading the Unlawful Activities (Prevention) Act 1967 with proper provisions. According to the committee, the AFSPA needs to be revised to define the powers granted to security and paramilitary forces. They also proposed the establishment of Grievance cells with armed forces personnel in each district.

Current Conflicts with AFSPA

Regarding the AFSPA, a recent conflict arose when the Prime Minister highlighted efforts being made to improve law and order with the aim of completely removing the Armed Forces Special Powers Act from the northeast states.
During a visit to Diphu, Assam, the Prime Minister announced a partial withdrawal of the AFSPA from Manipur and Nagaland due to the peaceful conditions since 2014. The Nagaland Cabinet endorsed the revocation of the AFSPA Act of 1958 from the state in December 2021. This recommendation followed an incident in the Mon district where 13 civilians were killed by armed forces.
As a result of the Mon district incident, Chief Minister Neiphiu Rio and Meghalaya's Chief Minister Conrad Sangma have called for the revocation of the AFSPA from these states. Moreover, the removal of the AFSPA Act has been a longstanding demand in the Northeastern states.

AFSPA UPSC

• The recent conflict surrounding the Armed Forces Special Powers Act (AFSPA) emerged when the Prime Minister acknowledged efforts to improve law and order and eventually abolish the act in the northeast states.
• During a Peace, Unity, and Development rally in Diphu, Assam, the Prime Minister announced a partial withdrawal of AFSPA from Manipur and Nagaland due to the peaceful conditions since 2014.
• In December 2021, the Nagaland Cabinet endorsed the revocation of the AFSPA act of 1958 in the state. This recommendation followed an incident in the Mon district where armed forces fatally shot 13 civilians.
• Following the Mon district incident, Chief Minister Neiphiu Rio, along with Meghalaya's Chief Minister Conrad Sangma, called for the repeal of AFSPA in these states.
• Furthermore, the removal of AFSPA has been a longstanding demand in the Northeastern states.