Introduction
In the multifaceted tapestry of India’s security policy, few pieces of legislation have generated as much controversy, debate and introspection as the Armed Forces Special Powers Act or AFSPA. Passed in 1958, it is a law that gives special powers to the Indian military in “disturbed areas”. It grants the military the power to make arrests without warrants; enter and search without permission; and, most significantly, immunity from prosecution for personnel operating under the act.
For the Indian government and defence establishment, AFSPA is a vital armoury, a vital tool to counter insurgency, terrorism and secessionist movements in some of its most volatile areas. For human rights activists, non-governmental organisations, and civil society in Manipur, Nagaland, Kashmir and other places of armed conflict, it represents state overreach, the hand of impunity and the trampling of constitutional entitlements.
Reality, as it often does with questions of national security, is a little less binary and requires us to take seriously both the need to secure a nation and protect its citizens’ rights.
Historical Background: The Origins Of AFSPA
AFSPA did not materialise out of thin air. It builds upon the Armed Forces Special Powers Ordinance of 1942, a measure designed by the colonial British government to crack down on the Quit India Movement. Ironically, independent India adopted this model to address its own security issues.
The Nasha insurgency in northeastern India was the spark for the 1958 Act. Since the late 1940s, the Naga National Council has been engaged in a militant struggle for independence, and the Indian government realised that ordinary law enforcement methods were insufficient to deal with a full-fledged armed insurgency in the mountainous and forested region.
Over time, the geographical application of AFSPA grew. It was applied to other northeastern states such as Manipur, Assam, Meghalaya, Tripura and Mizoram. In 1990, a similar version was introduced in Jammu and Kashmir, in response to the outbreak of armed militancy in the Kashmir Valley following disputed elections and the emergence of Pakistan-sponsored militant groups.
What AFSPA Actually Permits
To understand the controversy, it’s important to understand what the law allows. Under AFSPA, once the central or state government declares an area “disturbed”, soldiers are given wide-ranging powers.
Key Powers Under AFSPA
- Use of force, including lethal force, against any person acting contrary to law.
- Action against individuals suspected to be “about to commit” certain offences.
- Arrest without warrant on reasonable suspicion.
- Search and entry without warrant.
- Protection from prosecution without prior sanction from the central government.
Any commissioned officer, warrant officer or even a non-commissioned officer can employ force, including lethal force, against any person acting contrary to law. Even a person suspected to be “about to commit” certain offences can be dealt with.
The threshold for using lethal force is, according to some, too low. Personnel can arrest, without a warrant, any person on reasonable suspicion. They can enter and search properties without a warrant.
Crucially, personnel operating under the cover of AFSPA cannot be tried in civil courts until they have been granted immunity to do so by the central government, a permission that has been rarely granted in the past. This is the most controversial part of the law. It establishes, according to human rights groups, a condition for impunity, where processes of accountability are either absent or restricted.
The National Security Argument
The case for AFSPA has merit. India has a special security situation. The states of the northeast are bordered by Myanmar, Bangladesh, Bhutan and China and are vulnerable to border infiltration, smuggling and terrorist havens. Jammu and Kashmir is a geopolitical powder keg with recurrent external support for insurgency.
In these circumstances, it is argued, legal norms set up for times of peace are inoperable. Operating within the framework of the criminal justice system in counter-insurgency situations can lead to the following:
- Loss of lives
- Missed operational opportunities
- Reduced effectiveness of missions
The nature of war, with insurgents operating outside any legal or moral framework and security forces having to work within the framework of due process, is a practical problem that AFSPA helps resolve.
Moreover, military leaders argue that the Act gives them no licence to kill. Operational procedures, codes of conduct and superior officers’ accountability make this so.
Internal Accountability Mechanisms
- Army human rights cells
- Court martial processes
- Chain-of-command oversight
And there is deterrence. In areas where the insurgency traditionally draws support from complicity, the presence of a military with a high level of legal credibility is a deterrent to active complicity with anti-state forces.
The Human Rights Dimension
The case against AFSPA, however, is built on decades of documented evidence that cannot be dismissed as mere rhetoric. Several incidents have entered the national conscience as emblematic of the Act’s potential for abuse.
Yet the evidence against the Act is decades in the making and cannot be dismissed as mere words. A number of cases have become part of the national consciousness as a symbol of the Act’s abuse.
- The 2000 Malom Massacre, where ten civilians, including a young National Child Bravery Award recipient, were allegedly shot dead by the Assam Rifles at a bus stand in Manipur.
- The Pathribal fake encounter case in Kashmir.
- The Shopian killings.
- The discovery of mass graves in North Kashmir.
The Malom incident spurred Irom Sharmila’s remarkable 16-year-long hunger strike.
In a historic 2016 ruling, the Indian Supreme Court held that the right to life under Article 21 of the Indian Constitution cannot be suspended even in disturbed areas and that security forces do not have unfettered powers to shoot and kill.
It ruled that deaths in conflict zones need to be investigated and that the “use of excessive or retaliatory force” is not authorised under AFSPA.
The UN human rights bodies have also urged the Indian government to repeal or significantly amend the act. The government-constituted Justice Jeevan Reddy Committee in 2005 recommended repeal of AFSPA and its replacement with specific anti-terrorist laws. This has so far been ignored.
Political Dimensions And Regional Resentment
AFSPA has not only been a legal issue but also a human rights issue. It has become a political issue that has profound implications for the Indian state and its federal polity and its relations with its periphery.
The people of Manipur, Nagaland and Kashmir have over decades accumulated a historical memory informed, in part, by their experiences of AFSPA.
- Feeling of being ruled as subjects and not citizens.
- Perception of living under a lawless state of exception.
- Growing alienation complicating peace-building efforts.
The elected governments of the northeastern states have at times called for AFSPA to be repealed or diluted from their territory, while tensions with the central government and the army have ensued.
Nagaland’s legislative assembly passed a resolution demanding the repeal of AFSPA after the Oting incident in 2021, where 13 civilians, including miners, were killed in an army ambush gone wrong.
It sparked outrage across the country and calls for reform.
The political economy of AFSPA also has electoral, regional party-political and nation-building implications for India’s role as a nation with a diverse population, some of whom are sometimes rebellious.
Reform, Partial Withdrawals, And The Road Ahead
It’s also not the case that the footprint of AFSPA has only grown. There have been substantial, if limited, withdrawals that suggest the government’s ability to adapt to changing security circumstances.
| Year | Region | Development |
|---|---|---|
| 2015 | Tripura | AFSPA withdrawn |
| 2018 | Meghalaya | AFSPA withdrawn |
| 2022 | Assam, Nagaland, Manipur | Reduction in disturbed areas |
These announcements were celebrated but also put in context by activists who point out that it is still in place in the most conflict-affected areas and can be easily reintroduced.
The question of what reform would mean is a matter for debate.
- Embedding review processes for denial of sanction for prosecution.
- Parliamentary review of “disturbed area” declarations.
- Introducing new counterinsurgency laws with accountability mechanisms.
Conclusion
The Armed Forces Special Powers Act is an intersection of two core commitments of democracy, the duty to protect the state and the duty to protect the citizen.
It is not that the tensions between these two commitments are bad, but that they are real.
India’s security concerns are legitimate. Insurgencies aren’t defeated by the power of positive thinking, and the military needs certainty and confidence in the rules of engagement in active theatres of conflict.
But a democracy that suspends the rule of law in its own country, even temporarily, has to be alert to the costs of that suspension to communities that live under it and realistic about the value of those costs.
The solution does not lie in the naive disavowal of all special powers or the wholesale continuation of a colonial law that has long outlived its usefulness.
It requires a nuanced, fact-based national debate about the kind of security that will protect India while not making some of its citizens feel under siege.
AFSPA is not just a law. It is a looking glass in which India sees the contradictions of its own democracy, and what it does with that image will be a measure of the country it is becoming.
