The Armed Forces Special Powers Act (AFSPA) is an act of parliament that grants special powers to Indian armed forces to maintain public order in ‘disturbed areas’ which are defined under section 3 of the AFSPA act, 1958. The act was enacted so that peace and order is restored in those disturbed areas. The act was first promulgated by the British and it was called Armed Forces Special Power Ordinance. The act came in force to subdue the quit India movement in 1942. After independence, the act was first implemented in Assam and Manipur to deal with the Naga insurgency later it was enacted in all the northeastern states. The said statute has remained in force for a long period now despite the lack of accountability that comes with it. there have been parliamentary debates and various committees have been formed to check the credibility of the act. The act was an instrument to protect the people of the state that has threatened the very existence of the people. The main motive of enacting the act was to restore peace and solve insurgency problems in the states but even after decades, the problems remain to subsist in the northeastern states.
Brief History of ASFPA
The AFSPA, like many other contentious acts, has colonial roots. It was initially adopted as an ordinance in 1942 in response to the Quit India movement. Just after its launch, the act became violent in several parts of the country, and leaders like Mahatma Gandhi, Jawaharlal Nehru, VB Patel, with many other leaders were imprisoned. After seeing the amount of violence it created Armed Forces (Special Powers) Ordinance, 1942 was enacted by the then viceroy Linlithgow. The enactment of the ordinance gave the powers to the officials to even kill the people responsible for creating the internal disturbance. On these lines of this ordinance, the Indian government promulgated four ordinances to deal with the internal disturbance and security issues rising due to the partition in four provinces Bengal, Assam, East Bengal, and the United Provinces. AFSPA was first enacted to deal with the Naga insurgency in the Assam region. The naga national council conducted a free and fair referendum in which the majority of the naga voted for a ‘free sovereign naga nation.’ There was also a boycott of the first general elections in 1952 followed by a boycott of government schools and offices. To deal with such a situation government has to enact an ordinance.
An ordinance entitled the Armed forces (Assam and Manipur) Special Powers Ordinance, 1958 was promulgated by the President on the 22nd May 1958. It was later replaced by the Armed Forces (Assam and Manipur) Special Powers Act of 1958. Under article 355 of the Indian constitution, it says “to protect every State against any internal disturbance, it is considered desirable that the Central government should also have the power to declare areas as ‘disturbed’, in order to enable its armed forces to exercise special powers.” Later it extended to all northeastern states.
The need for AFSPA
- Since the insurgency was on the rise the situation was not in control with the state government, enactment of AFSPA was one of the essentials to combat the problem of insurgency and protect the borders of the country.
- Security forces cannot thrive amid a severe insurgency without the AFSPA’s security. Without it, insurgents would benefit from reluctance.
- To protect the dignity of the Indian army officials there was the need for a clause to not investigate the officials for the actions taken by them to protect the nation.
- The increasing violence in the northeastern states got out of state government control; hence, it was necessary.
The arbitrary nature of AFSPA
The very act is in controversy for years now due to its nature and provisions which give unbridled powers to the Indian armed forces.
- The act failed to distinguish the peaceful gathering of five or more people and an unruly mob hence, sometimes innocent people who have no role in creating chaos are executed by the armed forces.
- This act gives the ‘right to kill’ to our armed forces as they have been given immunity. Section 6 says “No prosecution, suit or other legal proceedings 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.”
- The decision to declare an area disturbed under section 3 of the act which says that “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” by the government cannot be challenged in a court of law.
- Section 4(a) violates the right to life of a person as it gives arbitrary power to an armed force to use force in an inappropriate way which can even cause death, the use of force depends on the sole discretion of the person and no action could be taken as he is immune from any prosecution and it is considered as a sovereign function.
- Section 4(c) violates the right to liberty and security of a person as the arrest could be made without any warrant and only based on a reasonable suspicion exist that he has committed or is about to commit the cognizable offense. Further, no time limit is prescribed for handing the arrested person to the nearest police station. This also results in torturing and other ill-treatment by the forces responsible for safeguarding their interests.
Human rights violation in northeastern states:
The recent uproar in Nagaland is the prime example of human rights violation as 14 civilians, 6 of whom were killed in a botched-up Army operation in Mon district on December 4. this results in a call for revocation of the act even more but centre instead of doing so extended the act for six more months. “Supreme Court-appointed Hegde Commission (2013) found that all seven deaths in the six cases it investigated were extrajudicial executions, and also said that the AFSPA was widely abused by security forces in Manipur.”People of northeastern states have long suffered the terror of AFSPA, the lack of transparency, and arbitrary calls for repealing of the act. AFSPA violates the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture (India is a signatory, but it has not ratified it). The continuous violation of rights of the peaceful critics in northeastern states in one of the strongest democratic countries is the main reason for the uprising militancy in these regions.
AFSPA is necessary for maintaining tranquillity in a state which faces insurgency and security issues but not in its present form, the lack of transparency led to misuse of the act and give arbitrary powers to the armed forces. There is a need for an amendment to make it more reasonable and fairer with a detailed explanation of the rules and powers given to armed forces. It is never too late to bring peace and harmony to the state. Instead of using armed forces and violence as a measure to deal with insurgency problems, the government should conduct a peaceful dialogue where both parties can have a word and resolve the issue at hand. The major reasons people revolting against the state government are the lack of development of the state, the lack of facilities, the violation of the rights of the people. The government should rise to the occasion and take urgent steps to create new methods to develop the states through industrialization and provide people with their rights.
Author(s) Name: Anukriti Jain (Nirma University, Ahmedabad)
 Esha Roy, ‘What is AFSPA, and why are states in Northeast against it?’ The Indian Express (New Delhi December 11, 2021).