HISTORY

• The battle against the Armed Forces Special Powers Act is a long, bitter one. On August 15, 1942,
Lord Linlithgow, the viceroy of India, promulgated the Armed Forces Special Powers (Ordinance) to
suppress the Quit India Movement launched by Mahatama Gandhi a week earlier. Gandhi,
Jawaharlal Nehru and most leaders of the Indian National Congress were imprisoned.
• A few years into Indian independence, Jawaharlal Nehru, the first prime minister, faced his first
insurgency in Naga districts of Assam, along the Burmese border.
• In 1954, the Nagas began an insurgency for independence. India responded by sending in
thousands of Indian army soldiers and paramilitary men from the Assam Rifles to crush the
rebellion. An intense cycle of violence followed. To further arm his counterinsurgents and provide
them with legal protection, Nehru’s government passed the Armed Forces Special Powers Act
(1958) in the Indian parliament.
• Prime Minister Nehru echoed Churchill and Linlithgow as they had set about crushing the Quit
India Movement with violence and legal protections of the Armed Forces Special Powers Ordinance
 Introduction
• Armed Forces (Special Powers) Act (AFSPA), 1958 is an act of the Parliament of India that grant
special powers to the Indian Armed Forces the power to maintain public order in “disturbed areas”.[1]
According to The Disturbed Areas (Special Courts) Act, 1976 once declared ‘disturbed’, the area has to
maintain status quo for a minimum of 3 months. One such Act passed on 11 September 1958 was
applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one, to the
other Seven Sister States in India's northeast(at present it is in force in Assam, Nagaland, Manipur
excluding Imphal municipal council area, Changlang, Longding and Tirap districts of Arunachal
Pradesh).[2] Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in
1997, roughly 14 years after it came to force.[3] An Act passed in 1990 was applied to
Jammu and Kashmir and has been in force since.[4]
• The Acts have received criticism from several sections for alleged concerns about human rights
violations in the regions of its enforcement alleged to have happened.[5][6] National Politicians like
P. Chidambaram and Saifuddin Soz of Congress have advocated revocation of AFSPA, while some like
Amarinder Singhare against its revocation.[7][8]
AFSPA-FORCE INVOLVEMENT:
• Morale of forces: AFSPA boosts the morale(mental well-being) of the armed
forces for ensuring the public order in the disturbed areas as removal of the
Act would lead to militants motivating locals to file lawsuits against the army.
• Operational requirements: Absence of such a legal statute would adversely
affect organizational flexibility and the utilisation of the security capacity of
the state armed forces cannot fulfill their assigned role. There are adequate
safeguards provided by the Act and the Army's guidelines as follows-Section 5
of the Act mandates that arrested civilians should be handed to the nearest
police station with a 'least possible delay' in addition to are part of
circumstances that led to the arrest’ Army HQ has also mandated that all
suspects who are arrested will be handed over to civilian authorities within 24
hours
POWERS AND DUTIES:
• According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed",
an officer of the armed forces has powers to:[20]
• After giving such due warning, Fire upon or use other kinds of force even if it causes death, against the
person who is acting against law or order in the disturbed area for the maintenance of public order,
• Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from
which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any
offence.
• To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected
of having done so and may use force if needed for the arrest.
• To enter and search any premise in order to make such arrests, or to recover any person wrongfully
restrained or any arms, ammunition or explosive substances and seize it.
• Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.
• Any person arrested and taken into custody under custody shall be present over to the officer in charge
of the nearest police station with least possible delay. together with the report .
 MERITS AND DEMERITS:
• PROS:
1.People who advocate in favor of the Law say that it is necessary to maintain law and order in the disturbed
• areas of the country, otherwise things will go haywire here.
• 2.The law dissuades advancement of terrorist activities in these areas.
• 3.It ensures the safety of the common people, who have to live under the fear of lawlessness in the area.
• CONS:
1.It is considered inhuman to have people forced to live in curfew like conditions for their entire lives.
• 2.The act curbs the secular freedom of many people as they have to face suspicion and discrimination on
the basis of their religions.
• 3.There have been several cases of human rights violations such as rapes and encounters, during the
enforcement of the Law.
 Implementation of AFSPA
• Section 3 of the Armed Forces Special Powers Act, 1958 provides that:
• “If in relation to any State or Union Territory to which this Act extends, the Governor of the State, or
the Administrator of the Union Territory, or the Central Government in either case, is of the opinion
that the whole or any is in such a disturbed or dangerous condition that the use of Armed Forces in
aid of civil power is 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”.
• The Supreme Court of India in its judgement of 27 November 1997 stated that:-
The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not
a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under
Article 352 or a proclamation under Article 356 of the Constitution.
NON- STATE VIEWS AND
COMMENTARY:
• When India presented its second periodic report to the
United Nations Human Rights Committee in 1991, members of the UNHRC asked
numerous questions about the validity of the AFSPA. They questioned the
constitutionality of the AFSPA under Indian law and asked how it could be justified in
light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On
23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India
to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach
contemporary international human rights standards."[23]
• On 31 March 2012, the UN asked India to revoke AFSPA saying it had no place in
Indian democracy. Christof Heyns, UN's Special Rapporteur on extrajudicial, summary
or arbitrary executions said "During my visit to Kashmir, AFSPA was described to me
as 'hated' and 'draconian'. It clearly violates International Law. A number of UN
treaty bodies have pronounced it to be in violation of International Law as well."[24]
 Supreme court verdict on
AFSPA
1. Armed personnel cannot just shoot to kill militants who create internal disturbances under the
presumption that they are enemies, and would face criminal prosecution if found using excessive
force even in areas where the Armed Forces Special Powers Act (Afspa) is in force, the Supreme
Court has ruled.
2. The top court had said in its verdict on Afspa last year that excessive force could be used only when a soldier
is defending himself in a combat with terrorists.
3. “Any retaliatory measure to neutralize terrorists/militants would be branded as excessive force or an extra-
judicial execution which runs counter to the very purpose of Afspa,
4. Supreme Court said that any encounter carried out by armed forces in the garb of AFSPA should be
subjected to thorough inquiry. In the words of supreme court "It does not matter whether the victim
was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a
common person or the state. The law is the same for both and is equally applicable to both.. This is
the requirement of a democracy and the requirement of preservation of the rule of law and the