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The Unconstitutional Nature Of AFSPA: A Critical Analysis

The object of terrorism is terrorism. The object of oppression is oppression. The object of torture is torture. The object of murder is murder. The object of power is power. Now do you begin to understand me? - George Orwell, 1984

The Constitution of India is the supreme law in India. A Constitution is a set of rules and regulations guiding the administration of a country. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens.

It is the longest written constitution of any country on earth with 395 articles and 12 schedules. Originally it consisted of 395 Articles arranged under 22 Parts and 8 Schedules. Today after many amendments, it has 447 Articles and 12 schedules and 25 parts (According to 2019). The constitution was written on 26 November 1949, and was made the center of law on 26 January 1950.

It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a constituent assembly rather than Parliament) and was adopted by its people with a declaration in its preamble. Parliament cannot override the constitution.

It was adopted by the Constituent Assembly of India on 26 November 1949 and became effective on 26 January 1950. The constitution replaced the Government of India Act 1935 as the country's fundamental governing document, and the Dominion of India became the Republic of India. To ensure constitutional autochthony, its framers repealed prior acts of the British parliament in Article 395.

The constitution declares India a sovereign, socialist, secular, and democratic republic, assures its citizens justice, equality and liberty, and endeavors to promote fraternity. The words 'secular' and 'socialist' were added to the preamble in 1976 during the Emergency.

An impartial judiciary, independent of the legislature and the executive, is one of the main features of the Constitution. The Supreme Court of India is the highest court of the country and acts as guardian of the Constitution and serves as the final court of appeal. Each state has a High Court as its highest court. Under powers of judicial review, the Supreme Court and High Court can declare a law as unconstitutional or ultra vires if it contravenes any provisions of the Constitution. This power of judicial review constitutes a middle path between the American judicial supremacy on one hand and British Parliamentary supremacy on the other.

The Constitution vests many fundamental rights in citizens. These are (i) Right to Equality, (ii) Right to Freedom, (iii) Right against Exploitation, (iv) Right to Freedom of Religion, v) Cultural and Educational Rights and vi) Right to Constitutional Remedies. These rights are justiciable and an individual can move the Supreme Court or the High Courts if there is an encroachment on any of these rights. However, Fundamental Rights in India are not absolute. Reasonable restrictions can be imposed. By 42nd Amendment in 1976, fundaments duties were added in the Constitution to remind people that while enjoying their right as citizens, they should perform their duties for rights and duties are correlative.

One of the strengths of the Constitution is that it is a dynamic instrument that can evolve with time either by its interpretation or amendment. On paper, an amendment to the Constitution is a difficult affair, and normally needs, at least, two-thirds of the Lok Sabha and Rajya Sabha to pass it.

However, the Constitution of India is one of the most frequently amended constitutions in the world so as not to stand in the way of the growth and development of the nation and her people. The success of the Indian Constitution, for a country as diverse and complex as India, continues to intrigue, impress and inspire experts around the world.

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'. 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 the States of Assam, Nagaland, Manipur {excluding Imphal Municipal Council Area}, Changlang, Longding and Tirap districts of Arunachal Pradesh, and areas falling within the jurisdiction of the eight police stations of districts in Arunachal Pradesh bordering the State of Assam). Another one passed in 1983 and applicable to Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An Act passed in 1990 was applied to Jammu and Kashmir and has been in force since.

The armed forces have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law. If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search a premises without a warrant; and ban the possession of firearms. Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

A disturbed area is one which is declared by notification under Section 3 of the AFSPA. An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities. The Central Government, or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.

A suitable notification would have to be made in the Official Gazette. As per Section 3, it can be invoked in places where 'the use of armed forces in aid of the civil power is necessary'. The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments.

The NGO Commonwealth Human Rights Initiative noted in its 2016 report that, of 186 complaints of human rights violations reported against the armed forces in states under the AFSPA between 2012 and 2016, 49.5 percent were from the state of Jammu and Kashmir. The data supplied by the Ministry of Home Affairs under the Right to Information Act did not indicate, however, whether complaints were deemed to have merit.

The Office of the UN High Commissioner for Human Rights (OHCHR) published the Report on the Situation of Human Rights in Kashmir, documenting alleged violations committed by security forces from June 2016 to April 2018. The report estimated civilian deaths by security forces ranged from 130 to 145, and between 16 to 20 killings by armed groups. The government of Jammu and Kashmir reported 9,042 injured protesters and 51 persons killed between July 2016 and February 2017. The report called for the repeal of the AFSPA in all states and territories, and an international probe into the human rights situation in the Indian state.

The UN Working Group on Enforced or Involuntary Disappearances informed the government about 16 newly reported cases of enforced disappearances that allegedly occurred between 1990 and 1999. There were allegations of enforced disappearance by the Jammu and Kashmir police. Although authorities denied these charges and claimed no enforced disappearance cases had occurred since 2015, the Association of Parents of Disappeared Persons submitted inquiries for 639 cases of alleged disappearance in the state of Jammu and Kashmir. In July the Jammu and Kashmir State Human Rights Commission ordered its police wing to investigate these cases.

Additionally, In 2017, the Union home ministry had released data revealing human rights violations under the controversial Act are the highest in Jammu and Kashmir, followed by Assam.

The documents which had been made public through a Right to Information (RTI) query filed by Venkatesh Naik, a human rights activist, show that Jammu and Kashmir topped the list of human rights violations committed under the AFSPA, with 92 complaints against the Indian Army and paramilitary forces in 2016. Assam comes in second with 58 complaints, Manipur third at 21, while Meghalaya and Arunachal Pradesh follow next at five and six complaints, respectively. Of the 186 complaints received, 74 were against the Indian Army. Death in army encounters saw 24 complaints. Death in army firings saw 16 complaints, while there were 21 cases of alleged fake encounters and 10 cases of rape and abduction.

AFSPA is increasingly being recognized as a draconian, discriminatory and oppressive law that transforms India from a democratic country to an authoritarian one due to its unconstitutional and undemocratic nature. Investigating the constitutionality of AFSPA is a continuing concern within the legal sphere. Due to the incessant human rights violations committed under its veil, as shown by the above statistics.

The issue of AFSPA has received considerable critical attention, and rightly so. Since it was first enacted in 1958, it has been subject to severe criticism and condemnation in our democratic country. The efficacy of AFSPA has been the subject of intense debate within the legal community for more than 63 years now.

This paper is an overview of AFSPA, in which it is presented, described, analyzed, investigated and discussed in order to broaden current knowledge of the aforementioned law. Additionally, this paper calls into question and sheds new light on the validity of AFSPA in contemporary times and suggests some changes to make the law more appropriate so as to reduce human rights violations in disturbed areas.

History Of AFSPA

Before we dive right into the topic, it is necessary to understand the history of this controversial act for proper contextual understanding.

The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15 August 1942 to suppress the Quit India Movement. Modeled on these lines, four ordinances-the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance were invoked by the central government to deal with the internal security situation in the country in 1947 which emerged due to the Partition of India. The Article 355 of the Constitution of India confers power to the Central Government to protect every state from internal disturbance.

With the aforementioned establishment of the Quit India Movement in 1942, and the merger of the Indian National Army and the Japanese soldiers approaching the eastern border of the country, mass violent movements broke out. The All-India Congress was declared illegal. Famous leaders were arrested, people were imprisoned, mob violence broke out, the whole situation went out of control. Lord Linlithgow, the then Viceroy of India, declared emergency all over India and thereafter, initiated the Armed Forces (Special Powers) Ordinance 1942.

This Act deliberated powers to the Commissioned Officers to act in any manner and apply force when required. It didn't matter even if it resulted in someone's death who didn't work according to the officers when he was asked to stop or ventured to destroy property which was to be protected by such officers. These officers also had the unconditional power of arresting anyone.

In 1951, the Naga National Council Nation'. There was a boycott of the first general election of 1952 which later extended to a boycott of government schools and officials. In order to deal with the situation, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and intensified police action against the rebels.

When the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, providing a legal framework for the paramilitary forces and the armed state police to combat insurgency in the region. But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government 'The Federal Government of Nagaland' on 23 March 1956.

The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by the President Dr. Rajendra Prasad on 22 May 1958. It was replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958 on 11 September 1958.

The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowered only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or the Union Territory as 'disturbed'. The reason for conferring such a power as per 'Objects and Reasons'' appended to the Bill was that 'Keeping in view the duty of the Union under Article 355 of the Constitution, interalia, to protect every State against internal disturbance, it is considered desirable that the Central government should also have power to declare areas as 'disturbed', to enable its armed forces to exercise the special powers'.

The territorial scope of Act also expanded to the seven states of the North-East - Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram. In addition, the words 'The Armed Forces (Assam and Manipur) Special Powers Act, 1958' were substituted by 'Armed Forces (Special Powers) Act, 1958', getting the acronym of AFSPA, 1958.

Shockingly, even after the independence of India, this colonial act was re-enacted in 1958 in the form of Armed Forces (Special Powers) Act, 1958. Nagaland saw the rebellious uprisings introduced by the Naga National Council (NNC) against the 'Indian armed forces' set up in Nagaland to function after 1950. The necessity of a legal base to support the armed forces led to the establishment of Armed Forces (Special Powers) Regulations 1958 by the Congress Government at that time.

This was quite similar to the Armed Forces (Special Powers) Ordinance of 1942. But certain changes were made. The part of the declaration of emergency now had disturbed areas. The powers to kill a person on the basis of suspicion of being against public safety or carrying arms and ammunitions, searching a place without a warrant and destroying it as being or was used by such rebellious militant's groups and so on, were made more definite and specific. Junior commissioned officers had strong powers as well. This Act only applied to the North East region of India, unlike the British ordinance that was applicable to the whole of India.

The AFSPA 1958 was strongly supported by the then home minister G.B Pant who believed states required protection from some Nagas indulging in murder, arson, dacoity, etc. Critics sitting in the Parliament opposed this bill as it was violative of the Fundamental Rights provided to every Indian. Without declaration, imposing an Emergency in these areas would invalidate the powers of the civil authority concerning the Indian Army.

However, no opposition could stop the bill from receiving the presidential assent and being changed into an Act. The Act was again amended in 1972 where K.C. Pant, the new Home Minister, put forth the objectives of the Act specifying that the Armed Forces (Assam and Manipur) Special Powers Act, 1958 should have consistent application in all the North Eastern States. The Governor of these States and the administrators of the two Union Territories were conferred with the power of deciding upon the disturbed areas. This amendment also authorized the Central Government of India to apply this Act.

The central government enacted the Armed Forces (Punjab and Chandigarh) Special Powers Act on 6 October 1983, repealing The Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983 to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh.

The Act was enforced in the whole of Punjab and Chandigarh on 15 October 1983. The terms of the Act broadly remained the same as that of the Armed Forces Special Powers Act (Assam and Manipur) of 1972 except for two sections, which provided additional powers to the armed forces.
  • Sub-section (e) was added to Section 4 stipulating that any vehicle can be stopped, searched and seized forcibly if it is suspected of carrying proclaimed offenders or ammunition.
  • Section 5 was added to the Act specifying that a soldier has the power to break open any locks 'if the key there of is withheld'
Thereafter, The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted in September, 1990. If the Governor of Jammu and Kashmir or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition then this Act can be imposed.

The medium of war between India and Pakistan, Jammu and Kashmir came up with its uprisings and separatist development movements in and around 1989. The involvement of Pakistan in encouraging these militants and directing Islamist jihadists in reclaiming the land by organizing more movements worsened the condition of the state. The AFSPA was put to effect with the establishment of the Jammu and Kashmir Disturbed Areas Act, 1990.

This was set to expire in 1992 but was re-enacted in the form of President's Act, 1992 under Article 356 of the Indian Constitution authorizing the parliament to legislate on Jammu and Kashmir. The Armed Forces (Jammu and Kashmir) Special Powers Act 1990 installed in Jammu and Kashmir received the presidential assent on 10th September, 1990 and was put to effect on 5th July 1990.

This Act would apply to areas declared 'disturbed' by state or the central government and it would require land forces to be deployed for the implementation of the Act. This saw the Governor's administration declaring all the six districts namely Anantnag, Baramulla, Badgam, Kupwara, Pulwama and Srinagar in Kashmir disturbed alongside areas at a distance of 20 kilometers from the LoC near Poonch and Rajouri.

This Act authorizes officers to fire or use any force against persons held to be contravening the laws in the disturbed areas. They wouldn't even require any warrants to arrest someone who has, had or has the probability of committing a cognizable offence under the Act. No legal proceedings against an army personnel could be furthered even in case of any violation or breach of laws.

These powers conferred on the armed forces for a different use has been utilized time and again to make the lives of innocent civilians miserable and it has also facilitated the commission of brutality against them by such officials. Chief Minister Omar Abdullah during his term had consistently asked for the withdrawal of AFSPA from certain areas of Jammu and Kashmir which accordingly did not need it. The army along with fighting against infiltrators have also caused brutalities against civilians in the name of protection and duty.

Key Provisions Of AFSPA

The key provisions of the AFSPA, ACT NO. 28 OF 1958, which confer power on the armed forces are:

  1. Power to declare areas to be disturbed areas
    If, in relation to any State or Union territory to which this Act extends, the Governor of that State or the Administrator of that Union territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the 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.]
  2. Special powers of the armed forces
    Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area:
    1. if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;
    2. if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;
    3. arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;
    4. enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.
  3. Arrested persons to be made over to the police.-Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.
  4. Protection to persons acting under Act.-No prosecution, suit or other legal proceeding 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 Unconstitutionality Of AFSPA

For this section the relevant articles include:
Article 14 in The Constitution Of India 1949

14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 19 in The Constitution Of India 1949
19. Protection of certain rights regarding freedom of speech etc:
  1. All citizens shall have the right
    1. to freedom of speech and expression;
    2. to assemble peaceably and without arms;
    3. to form associations or unions;
    4. to move freely throughout the territory of India;
    5. to reside and settle in any part of the territory of India; and
    6. omitted
    7. to practise any profession, or to carry on any occupation, trade or business
  2. Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
  3. Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause.
  4. Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause
  5. Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
  6. Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to:
    1. the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
    2. the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise

Article 21 in The Constitution Of India 1949
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

Article 22 in The Constitution Of India 1949
22. Protection against arrest and detention in certain cases
  1. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
  2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
  3. Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention
  4. No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention;
  5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
  6. Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
  7. Parliament may by law prescribe:
    1. the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );
    2. the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
    3. the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause ( 4 ) Right against Exploitation

Article 32 in The Constitution Of India 1949
32. Remedies for enforcement of rights conferred by this Part
  1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
  2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
  3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
  4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

Initially, the Act was applicable to the states of Assam and Manipur to eradicate militancy amongst the Nagas. Subsequently, the Act was amended in 1972 in order to extend it to all the states lying in the Northeastern region of India. Then, it was extended to Punjab for a brief while. Currently, the Act is in force in the states of the Northeastern region of the country and Jammu and Kashmir. Purportedly aimed at fighting insurgency the Act has proved singularly ineffective.

The provisions of the Act are discussed and analyzed below:
  1. Section 2 sets out the definition of the Act, but leaves much un-defined. Under part (a) in the 1972 version, the armed forces were defined as 'the military and air force of the Union so operating'. In the 1958 version of the Act the definition was of the 'military forces and the air forces operating as land forces'. Section 2(b) defines a 'disturbed area' as any area declared as such under section 3. Section 2(c) states that all other words not defined in the AFSPA have the meanings assigned to them in the Army Act of 1950.
  2. Section 3 defines 'disturbed area' by stating how an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State, but does not describe the circumstances under which the authority would be justified in making such a declaration. The provision declares the authority of the centre, but does not clearly define a disturbed area nor does it state the conditions, circumstances or prudent grounds for the declaration of the part as disturbed.

    The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case. The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, the declaration that an area is disturbed is not subject to judicial review. So in practice, it is only the government's understanding which classifies an area as disturbed.

    Looking at a similar legislation i.e. the Disturbed Areas Act, 1976, it has been clearly stated that owing to the disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, the state government may declare such area to be a disturbed area. The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.

    Another important thing is that the time period for the lasting of the 'disturbed' status of the area is not stated in AFSPA. In the case Naga People's Movement of Human Rights v. Union of India, the Honorable Supreme Court held that the section 3 cannot be construed as conferring power without any time limitation.

    There should be a periodic review of the declaration before the expiry of six months. But it's a fact that in the state of Manipur the Act has been in enforcement since the year 1958, till date. Also, in 1980, the whole territory was declared as a disturbed area, which continues even after 50 years.

    All these limitations amount to the vagueness of the provision. The 1972 amendments to the AFSPA extended the power to declare an area disturbed to the Central Government where as in the 1958 version of the AFSPA only the state governments had this power. In the 1972 Lok Sabha debates it was argued that extending this power to the Central Government would take away the State's authority.

    In the 1958 debates the authority and power of the states in applying the AFSPA was a key issue. It was argued that the AFSPA broadened states' power because they could call in the military whenever they chose. The 1972 amendment shows that the Central Government is no longer concerned with the state's power. Rather, the Central Government now has the ability to overrule the opinion of a state governor and declare an area disturbed. This happened in Tripura, when the Central Government declared Tripura a disturbed area, over the opposition of the State Government.
  3. Section 4 sets out the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or noncommissioned officer, but a jawan (private) does not have these powers. The Section allows the armed forces personnel to use force for a variety of reasons. Under Section (4) (a) of the Act, a military personnel or even a non-commissioned officer of the force can fire, shoot to the extent of killing a person who has acted against law, to maintain public order. As per this provision, assembly of five or more people is prohibited, prohibiting the carrying of weapons, explosives or any things capable of being used as the same. All these to be done just if the military personnel are of the opinion of such.

    The provision is clearly violative of the Right to life and personal liberty granted under Article 21 of the constitution that states 'No person shall be deprived of his life or personal liberty except according to procedure established by law.' If the military personnel shoot to kill just by the reason that they were of such an opinion, then the personal liberty of the people comes under great threat.

    This feature of the act is by no way a 'due process of law' which can be used as a defense against the deprivation of the right to life. The term 'procedure established by the law' is synonymous to 'a due process', since it was held in by the honorable supreme court in the case Maneka Gandhi v. Union of India that the procedure established by law has to be fair, just and reasonable, not arbitrary and fanciful; otherwise it's not a procedure at all and also not satisfying Article 21. Owing to this very inhumane clause, the army has allegedly acted in a very extrajudicial and unreasonable manner in the areas declared disturbed.

    Now, the provision also prohibits the assembly of five or more people in the area. But the kind of assembly has not been defined. What if the assembly is a lawful and a peaceful one? Under article 19(1)(b) all citizens of India have a right to hold meetings and take out processions, provided the assembly is unarmed and peaceful.

    Under Section 4(c) the army can arrest anyone without a warrant, who has committed, is suspected of having committed or of being about to commit, a cognizable offense and use any amount of force 'necessary to affect the arrest'. While, the following section 4(d) states that the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises.

    This section also allows the use of force necessary for the search. In both the clauses, no limitations are associated with the 'amount of force'. There has been a use of excessive force by the army for the execution of their duties, under this provision. It should not be ignored that the honorable Supreme Court, in the case Joginder Kumar v. State of U.P and in D.K. Basu v. State of West Bengal held that an arrest should not be made on mere suspicion of a person's complicity in the crime. The police officer must be satisfied about the necessity and justification of such arrest on the basis of investigation.

    It is to be noted that arrest without warrant, deciding the amount of force to be applied, reasoning the suspicion and all, is capable of being undertaken by anyone in the army from a commissioned officer to even the Hawaldar/ Jawan. This manifests nothing, but the arbitrariness of the law.
  4. Section 5 of the Act states that after the military has arrested someone under the AFSPA, they must hand over that person to the nearest police station with the 'least possible delay'. Again, the uncertainty and ambiguity has crippled into the section. Article 22(2) of the constitution demands that every person who is arrested and detained shall be produced before the nearest magistrate within period of 24 hours.

    The provision of the AFSPA mentions the time period as with 'least possible delay'. The application of Sec 5 certainly will and has in fact, resulted into arbitrary detention, since the time period is not specified at all. If the AFSPA were defended on the grounds that it is a preventive detention law, it would still violate Article 22 of the Constitution. Preventive detention laws can allow the detention of the arrested person for up to three months. Under 22(4) any detention longer than three months must be reviewed by an Advisory Board. Moreover, under 22(5) the person must be told the grounds of their arrest.

    Under section 4(c) of the AFSPA a person can be arrested by the armed forces without a warrant and on the mere suspicion that they are going to commit an offence. The armed forces are not obliged to communicate the grounds for the arrest. There is also no advisory board in place to review arrests made under the AFSPA. Since the arrest is without a warrant it violates the preventive detention sections of article 22.

    In the habeas corpus case of Bacha Bora v. State of Assam, the petition was denied because a later arrest by the civil police was found to be legal. However, in a discussion of the AFSPA, the court analyzed Section 5 (turn the arrested person over to the nearest magistrate 'with least possible delay'). The court did not use Article 22 of the Constitution to find that this should be less than twenty-four hours, but rather said that 'least possible delay' is defined by the particular circumstances of each case. In this case, the army had provided no justification for the two-week delay, when a police station was nearby, so section 5 was violated. Nevertheless, this leaves open the interpretation that circumstances could justify a delay of 5 days or more.
  5. Section 6 provides impunity to the military officers. It establishes that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government. This section leaves the victims of the armed forces abuses without a remedy, while assures safeguards for the military.

    Moreover, even if any armed forces member is ever tried for any kind of abuse or wrong, then they are tried in the martial courts, whose judgments are usually not published or made public. That is the reason why several cases of human rights abuses have went unheard. In fact, the NHRC even never got a chance review any. Section 19(b) of the Protection of Human Rights Act, 1993 exempts the armed forces from the purview of the National Human Rights Commission (NHRC), and even if human rights cases involving them are dealt with, they are done with after seeking a report from the central government.

    The Delhi High Court found the AFSPA to be constitutional in the case of Indrajit Barua v. State of Assam and the only judicial way to repeal the Act is for the Supreme Court to declare the AFSPA unconstitutional. It is extremely surprising that the Delhi High Court found the AFSPA constitutional given the wording and application of the AFSPA. The AFSPA is unconstitutional and should be repealed by the judiciary or the legislature to end army rule in the North East.

    In a state of emergency, fundamental rights may be suspended under Article 359, since the 1978 amendment to this article, rights under Articles 20 and 21 may not be suspended. As shown above, the AFSPA results in the suspension of Article 21 right to life, therefore AFSPA is more draconian than emergency rule. Emergency rule can only be declared for a specified period of time, and the President's proclamation of emergency must be reviewed by Parliament. The AFSPA is in place for an indefinite period of time and there is no legislative review. The AFSPA grants state of emergency powers without declaring an emergency as prescribed in the Constitution.

    The Armed Forces Special Powers Act contravenes both Indian and International law standards. This was exemplified 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, questioning how the AFSPA could be deemed constitutional under Indian law and how it could be justified in light of Article 4 of the ICCPR.

    The Attorney General of India relied on the sole argument that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a 'war footing.' He argued that the Indian Constitution, in Article 355, made it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession.
The AFSPA - and other legislation relevant to the armed forces - requires the 'sanction' (i.e. permission) from the central government before prosecutions can be initiated against members of the security forces for acts committed, or purported to be committed, under the legislation. Section 6 of the AFSPA specifies that:

'[n]o prosecution, suit or other legal proceeding 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'.

Article 2(3) of the ICCPR provides that states parties must: '�ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.'

The right to an effective remedy is implicit in article 32 of the Indian Constitution. The fundamental rights in the Constitution of India include a right to enforceability of these rights. However, even during the first debate in the Lok Sabha at the time the AFSPA was being considered, one member reportedly stated that Section 6 of the Act 'immediately takes away, abrogates, pinches, frustrates the right to constitutional remedy which has been given in article 32(1) of the Constitution.' The importance of avoiding impunity has been articulated by the Supreme Court:

'In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the State and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and /or a civil suit or other proceeding against the person/persons responsible for such violation

This direction has been supplemented in Paragraph 52 of the judgment of Naga People's Movement of Human Rights v Union of India [1997] ICHRL 117 (27 November 1997) , where the court stated: '�we are of the view that since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.'

Advantages And Disadvantages Of AFSPA

  1. Advantages
    1. Protect borders: With the powers given by AFSPA, the armed forces have been able to protect the borders of the country for decades.
    2. Effective Counter-insurgency: A strict law is needed to tackle the insurgent elements inside the country particularly in the Kashmir and northeastern region.
    3. 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.
    4. Operational requirements: Absence of such a legal statute would adversely affect organisational 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 a 'report 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.
    • According to the army's guidelines, a fire may be opened in towns and villages only in self-defense and that too when the source of terrorist or militant fire can be clearly identified.
  2. Disadvantages
    1. Violates Human Rights: There are several instances where the armed forces have found to be misusing the oppressive powers given by the Act like fake encounters, sexually exploiting the women in the disturbed areas. What's more disturbing is the fact that the armed forces escape with impunity for their actions since legal suits cannot be filed against them as per the Act. Thus AFSPA clearly violates human rights.
    2. Colonial-era law: AFSPA is generally compared to the Rowlatt Act of the British regime because just like the Rowlatt Act, any suspicious person can be arrested only based on doubt in the AFSPA also.
    3. Not a better solution: Critics assert that there is no need to run the nation on the basis of the bullet while the issue could be addressed on the basis of the ballet (election).

Supreme Court's Opinions On AFSPA

There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement (Naga People's Movement of Human Rights v. Union of India). In this judgement, the Supreme Court arrived at certain conclusions including:
  1. a suo-motto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration;
  2. AFSPA does not confer arbitrary powers to declare an area as a 'disturbed area';
  3. the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired;
  4. while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action, and
  5. the authorised officer should strictly follow the 'Dos and Don'ts' issued by the army.

In the case of Naga People's Movement of Human Rights vs. Union of India, the validity of AFSPA was challenged before the Supreme Court and the five-judge bench concluded that the act cannot be considered as violative of the Constitution and the powers conferred under the section 4 and 5 of the Act are not arbitrary and unreasonable and therefore not in violation of the provisions of the Constitution.

Further, the guidelines stated that:
  • The army personnel are required to strictly follow minimum force under Section 4 against suspected of violating prohibitive orders.
  • A person arrested and taken to custody under section 4 has to be handed over to the nearest police station within 24hours of such arrest.
  • The act has to be reviewed every six months by the state.

On July 8, 2016, in a landmark ruling in the case of Extra Judl.Exec. Victim Families ... vs Union Of India & Anr, The Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA as follows:
  • No excessive force: Army and paramilitary forces cannot use excessive and retaliatory force during counter-insurgency operations in areas declared as disturbed under the AFSPA.
  • Criminal courts have the jurisdiction: over cases of alleged excesses by security forces which earlier were under a blanket of immunity provided by AFSPA.
  • Equality before law: Court said 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.
  • AFSPA is not invincible: The provisions of the Armed Forces (Special Powers) Act and the purported immunity it offers to the use of force 'even to the extent of causing death' are not invincible.
  • Preservation of rule of law: Such legal protection has to yield to larger principles of human rights, and the use of excessive or retaliatory force should be thoroughly inquired. This is essential for both democracy and the rule of law in the country.

The landmark judgment came on a plea by hundreds of families in the north-eastern State of Manipur for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters involving the Army and the police.

'If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are 'enemy,' not only the rule of law but our democracy would be in grave danger,' a bench comprising Justices Madan B Lokur and UU Lalit ruled, in a case filed by NGOs comprising wives and mothers of those allegedly killed in fake encounters by armed personnel in Manipur.

'There is no concept of absolute immunity from trial by the criminal court�to contend that this would have a deleterious and demoralising impact on the security forces is certainly one way of looking at it, but�a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralising, particularly in a constitutional democracy like ours,' the bench ruled.

The court also dismissed the government's argument that every armed person breaking prohibitory orders in a disturbed area runs the risk of being considered an 'enemy.'

'It would not be correct to say that merely because a person was carrying arms in a prohibited area, he or she becomes an enemy or an active member of a banned or unlawful organization... Before a person can be branded as a militant or a terrorist or an insurgent, there must be the commission or some attempt or semblance of a violent overt act,' the judgment held.

A thorough enquiry should be conducted into 'encounter' killings in disturbed areas because the 'alleged enemy is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution.'

Furthermore, here are a list of Dos & Don'ts as directed by the Supreme Court in Naga People's Movement of Human Rights v Union of India [1997] ICHRL 117 (27 November 1997).

  1. Action before Operation
    1. Act only in the area declared 'Disturbed Area 'under Section 3 of the Act
    2. Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO
    3. Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities
    4. As far as possible coopt representative of local civil administration during the raid.
  2. Action during Operation
    1. In case of necessity of opening fire and using any force against the suspect or any person acting in contravention of law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning
    2. Arrest only those who have committed cognizable offence or who are about to Commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence
    3. Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities
    4. Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only.
  3. Action after Operation
    1. After arrest prepare a list of the persons so arrested
    2. Hand over the arrested persons to the nearest police station with least possible delay
    3. While handing over to the police a report should accompany with detailed circumstances occasioning the arrest
    4. Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case
    5. After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession.
    6. All such arms, ammunition, stores etc. should be handed over to the police station along with the seizure memo
    7. Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police
    8. Make record of the area where operation is launched having the date and time and the persons participating in such raid
    9. Make a record of the commander and other officers/JCOs/NCOs forming part of such force
    10. Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death.
  4. Dealing with civil court:
    1. Directions of the High Court/Supreme Court should be promptly attended to
    2. Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid
    3. Answer questions of the court politely and with dignity
    4. Maintain detailed record of the entire operation correctly and explicitly.

List of Dos and Don'ts while providing aid to civil authority
  1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station
  2. Do not use any force after having arrested a person except when he is trying to escape
  3. Do not use third-degree methods to extract information or to extract confession or other involvement in unlawful activities
  4. After arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force
  5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities
  6. Do not tamper with official records
  7. The armed forces shall not take back a person after he is handed over to civil police.
  8. Do not use excessive force
  9. Do not get involved in hand-to-hand struggle with the mob
  10. Do not ill-treat anyone, in particular, women and children
  11. No harassment of civilians
  12. No torture
  13. No communal bias while dealing with civilians
  14. No meddling in civilian administration affairs
  15. No Military disgrace by loss/surrender of weapons
  16. Do not accept presents, donations and rewards
  17. Avoid indiscriminate firing

  1. Act in closest possible communication with civil authorities throughout
  2. Maintain inter-communication if possible, by telephone/radio
  3. Get the permission/requisition from the Magistrate when present
  4. Use little force and do as little injury to person and property as may be consistent with attainment of objective in view
  5. In case you decide to open fire (a) Give warning in local language that fire will be effective (b) Attract attention before firing by bugle or other means (c) Distribute your men in fire units with specified Commanders (d) Control fire by issuing personal orders (e) Note number of rounds fired (f) Aim at the front of crowd actually rioting or inciting to riot or at conspicuous ringleaders, i.e., do not fire into the thick of the crowd at the back (g) Aim low and shoot for effect (h) Keep Light Machine Gun and Medium Gun in reserve (i) Cease firing immediately once the object has been attained (j) Take immediate steps to secure wounded
  6. Maintain cordial relations with civilian authorities and paramilitary forces
  7. Ensure high standard of discipline

Committees Related To AFSPA

In 2004, in the wake of intense agitation that was launched by several civil society groups following the death of Manoram Devi, while in the custody of the Assam Rifles and the indefinite fast undertaken by Irom Chanu Sharmila, the Union Ministry of Home Affairs accordingly set up a five-member committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of the Supreme Court with the remit to review the provisions of the Act and report to the Government on whether amendment or replacement of the Act would be advisable.

Having conducted extensive studies and consultations, the 147-page Report of the Committee recommended in 2005 that it had formed 'the firm view' that the Act should be repealed as 'too sketchy, too bald and quite inadequate in several particulars.

During the course of its work, the committee members met several individuals, organizations, parties, institutions and NGOs, which resulted in the report stating that 'the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness.

The report clearly stated that 'It is highly desirable and advisable to repeal the Act altogether, without of course, losing sight of the overwhelming desire of an overwhelming majority of the North East region that the Army should remain (though the Act should go).' But activists say the Reddy panel despite its recommendation for the 'repeal of the Act' has nothing substantial for the people. The report recommends the incorporation of AFSPA in the Unlawful Activities (Prevention) Act, 1967, which will be operable all over India.

The reason for this recommendation was that the Unlawful Activities (Prevention) Act, 1967 is applicable to entire territory of India including the northeastern states, and is more comprehensive in terms of dealing with terrorism.

Besides this, the committee also pointed out that the deployment of armed forces for the said purposes should be undertaken with great care and circumspection. Unless it is absolutely essential for the aforesaid purposes, the armed forces of the Union should not be so deployed, since too frequent a deployment, and that too for long periods of time, carries with it the danger of such forces losing their moorings and becoming, in effect, another police force, a prey to all the temptations and weaknesses such exposures involve.

Such exposure for long periods of time may well lead to the brutalization of such forces - which is a danger to be particularly guarded against. Unfortunately, the committee did not discuss the human rights abuse and the ill-treatment meted out with the people, comprehensively.

The panel gave its report in June 2005 but the then Government has neither officially accepted nor rejected its findings with AFSPA still in continuance in the Northeast and now in Jammu & Kashmir too. Reason may be that with rapid rise in terrorism throughout the country in the past couple of months coupled with terrorist violence in many places, especially in the Northeast, the government of India cannot take a hasty decision on the removal of this Act, as it could spell several dangers to the strategic security and territorial integrity of the country.

In addition to the Jeevan Reddy Committee, the Second Administrative Reforms Commission headed by Veerappan Moily in its Fifth Report in June, 2007 has also recommended the repeal of the AFSP Act. The Commission stated that 'after considering the views of various stakeholders came to the conclusion that AFSP Act should be repealed.

In 2013, a committee headed by Supreme Court Judge Santosh Hegde was appointed to review the encounter killing of 1528 people in Manipur since 1979. The Supreme Court was prompted to set up the Santosh Hegde committee following the petition filed by the Extra Judicial Execution Victim Families Association of Manipur asking it to look into six charges of unlawful encounter killings in Manipur.

The Santosh Hegde committee submitted its report in 2013, saying five of the six encounters were 'not genuine', that 'disproportionate force' had been used against persons with 'no known criminal antecedents', and that AFSPA gave 'sweeping powers' to men in uniform without granting citizens protection against its misuse. Further, the committee was of the view that if greater power was given then greater would be the restraint and stricter would be the mechanism to prevent its misuse or abuse, but this possibility was absent in the case of Manipur.

Suggestion To Improve AFSPA

This research paper found out that the aspect of human rights has shaped the AFSPA controversy to a large extent. It needs to be emphasized that human rights compliance and operational effectiveness in disturbed areas are not contradictory requirements. In fact, adherence to human rights norms and principles strengthens the counterinsurgency capability of a force. The Indian army has to be recognized as an apolitical, secular and professional force by the country instead of brutal authoritarian beasts.

Therefore, compliance with humanitarian principles will go a long way in strengthening this faith, as the people in the disturbed areas will actively assist our army instead of being incensed by the army's cruel actions and becoming radicalized by the very same enemy that faces our>
The suggestions that follow are, in my opinion, appropriate enough. These can either be incorporated in the form of amendments to the existing law or can create a new one, given the psychological imperatives and perceptions associated with it.

  1. There is a clear and present danger of AFSPA becoming a symbol of oppression and hostage to previous human rights violations if the demands of the regions affected by terrorism and insurgency are not heard and their grievances redressed. Therefore, the status quo is no longer an acceptable solution.
  2. A message must be sent out to the people of disturbed states like the Manipur, J&K that the government is willing to address their injustice, by making necessary changes to the existing law.
  3. The army fights high-intensity conflicts and people are the centre of the gravity. Therefore, there must be support from the people of the region to the armed forces to fight terrorism and insurgent activities. The armed forces must build the necessary trust factor amongst the local populace to ensure their support in countering insurgency.
  4. The existence of AFSPA in J&K is mainly to fight the proxy war being waged by external agencies and therefore such tough stringent laws are required to be given to the armed forces to act at when the need arises. But, there have to be enough measures to be taken to repeal some of the powers when the situation simmers down.
  5. Involvement of the state bureaucracy, army and the grass-root civil society organisation in the developmental activities of the state. This will make the army 'pro-development than a mere 'law and order' agency.
  6. The security forces and the government should fast track existing cases and ensure speedy justice to victims by prosecuting the guilty. They should adopt a transparent process in place of the current opaqueness to deal with allegations of human right violations by the forces.
  7. The government should consider the imposition and lifting of AFSPA on a case-by-case basis and limit its application only to few disturbed districts instead of applying it for the whole state.
  8. The government and the security forces have to abide by the guidelines set out by - The Supreme Court, Jeevan Reddy Commission, Santosh Hegde Committee and the NHRC
  9. Section 4(a) which is completely against the scope of international human rights that protects the right to live should be repealed or amended. It also violates the principles upheld by criminal justice, that is the assumption of innocence until one is proven to be the offender.

    When the armed forces are called to take control of the disturbed areas, the power conferred upon them of using unconditional force as per Section 4, validates the commission of extrajudicial killings which is inconsistent with Article 246 of the Indian Constitution read with the 7th Schedule that places 'Law and order' under the State's list. Therefore, it is Ultra vires.
  10. Section 5 of the Act should be consistent with Article 22 of the constitution under which it is compulsory to present an arrested person in front of the Magistrate within 24 hours.
  11. The scope of Section 6 should be increased to keep a close check on the armed forces and stop them from committing inhumane and heinous crimes against innocent civilians. The sanction of the Central Government shouldn't be waited for, maybe a special committee could be formed to begin enquiries straight away without any delays or prejudices against anyone.
  12. The suggestion put forth by the Sarkaria Commission of the states to develop their system of maintaining and dealing with public order and also as per the recommendations of the National Police Commission of deploying the Central Reserve Police force for day-to-day policing instead of engaging the army and paramilitary forces should be looked into and so on.

This paper was an overview of AFSPA, in which it was presented, described, analyzed, investigated and discussed in order to broaden current knowledge of the aforementioned law. Additionally, this paper calls into question and sheds new light on the validity of AFSPA in contemporary times and suggests some changes to make the law more appropriate so as to reduce human rights violations in disturbed areas and to make the Indian army look more agreeable in its future approach to counter insurgency.

To sum it up, AFSPA gives armed forces the power to maintain public order in 'disturbed areas'. They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law.

If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search a premise without a warrant; and ban the possession of firearms. Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

The AFSPA is enforced by the Central government in a particular State only when the scale of disturbances is so large that the local police or the paramilitary forces cannot control it on their own and the administration becomes almost paralysed. The Act gives sweeping powers to the Armed Forces to stop and search vehicles, arrest suspects without a warrant, search homes or premises suspected to be storing illegal arms, ammunition and explosives or harbouring terrorists, use force or fire upon people causing serious disturbances and destroy militant hide-outs and arms dumps.

Considering the nature of their duty, the Act provided legal immunity to the Armed Forces personnel from prosecution except with the sanction of the Central Government. This privilege was however withdrawn by the Supreme Court in 2016 after allegations of human rights violations by the security forces.

The AFSPA is enforced by the government only in extraordinary circumstances - complete breakdown of law and order, threat to life and property, loss of innocent lives, grave threat to national security and inability of the local police to tackle militancy. In these situations, armed insurgents gain control of some pockets and areas and establish a parallel administration by use of threat and intimidation and even create fear among the police.

There is a breakdown of the constitutional machinery and the State appears totally powerless to handle things on its own. Based on the reports received from the State government on the ground situation, the Centre decides on enforcing the AFSPA.

Proponents of the Act argue that without it, our country would have lost Jammu and Kashmir and parts of North-East by now. Punjab would not have become normal and Khalistan would still be the goal of the militants without the special powers given to the Armed Forces. However, even with the AFSPA in force, things have not been easy for the Armed Forces especially in J & K and in the States of Assam, Nagaland and Manipur.

The Army has declared that it cannot control militancy and terrorism without the use of AFSPA as the situation in the insurgency areas is grave and there is serious threat to life due to the peculiar circumstances there. The terrorists are often difficult to locate and identify among the civilian population, there is support to them from across the borders, there are informers and traitors helping them and there is always a threat of sudden gunfire from any corner. Therefore, it becomes impossible for the Army under these hostile conditions to follow the routine and cumbersome identification and prosecution procedures usually adopted by the police.

Opposition to the AFSPA has come from the United Nations and some human rights organizations who have said that the Act is draconian and violates basic human rights of the citizens. They have accused the Armed Forced forces of excessive use of force, torture, extra-judicial killings, kidnappings, rapes and killing of innocent civilians.

The hunger strike of Irom Sharmila for 16 years in Manipur on the abuse of AFSPA has highlighted the need to have a relook at the way the Act is actually implemented. The Santosh Hegde Commission on Manipur encounter deaths has recommended that the AFSPA be made more humane and the security forces made accountable for violations. It has asked for the periodic review of enforcement of AFSPA depending upon ground situation.

The Justice Jeevan Reddy Commission has called for its repeal by terming it a 'symbol of hate, oppression and high handedness'. However, the State governments have not been bold enough to ask for its repeal for fear of the militancy returning and things going out of hand again. The Supreme Court order in July 2016 that any encounter carried out by the security forces under the AFSPA should be subjected to a thorough enquiry should come as a welcome relief to the human rights activists and at the same time serve as a warning to some security personnel who are sometimes prone to misusing it.

The reason for which the AFSPA was introduced even after the colonial rule was to protect the country from enemies and anti-national uprisings. But has the Act been implemented for that work till date? Nay! For through the years, the list of crimes and inhumane activities committed by the Armed forces have broken records. Instead of protecting the nation's people, it has been exploiting and brutalizing them ruthlessly.

Even if on one side it has successfully stopped uprisings and enemies from infiltrating the country, on the other side it has become a reason to invite the vengeance of the people of the nation and give birth to greater anti-national uprisings.

So, what really needs to be done is keeping a good and strict check on the officials, amend the laws and introduce rigorous punishment for such offences. It is also important to introduce limitations for the unconditional power of the Armed forces and introduce a greater role for the Supreme Court to attain justice.

From the above-listed provisions of the act, it can be understood that the act is one of the more draconian legislation to be ever enacted in India. Under this act, all the security forces are given unlimited powers to carry out any task, or operation- so long as the place has been declared disturbed.

Killing, searching a house and vehicles without a warrant, opening fire, all these acts may be done on suspicion alone, without any procedure to be followed. Moreover, the enforcement of AFSPA in these states has led to a lot of reports of dacoits, torture, rape of women, as well as arbitrary detention by the army personnel.

None of these personnel can be prosecuted for these acts, as they are protected for acting under by the provisions enlisted in the AFSPA. The reasons for declaring an area as disturbed is also often justified by the central and the state governments, such as that it was done to stop the above-mentioned areas from the seceding from the Indian Union.

This only goes to show how arbitrary the legislation is and why there is an imminent need to repeal it. The AFSPA also poses a clear danger to the constitutional provisions of India, i.e. freedom of expression, liberty and the rule of law.

Therefore, the AFSPA must either be repealed by setting out clear procedures, scrapping of the Act or it must be struck down by the Supreme court as entirely unconstitutional. Amendments may be in the form of making the armed forces more accountable for the attacks committed. If any officer of the army has been involved in any activity of killings under this act, there must be an independent committee set up to decide whether the officer must be prosecuted or punished for the acts committed.

In conclusion, it is high time that sincere and concerted efforts are made continuously by the four stakeholders - civil society, the Armed Forces, the States and the Government of India to find a lasting and peaceful solution to the festering problem, with a little deliberation from all quarters. It is never too late to bring peace and harmony in society.

One can never tolerated human rights violation committed in the name and with advantage of AFSPA, so the government needs to bring a scientific and humanitarian approach towards solving the socio-economic problems of the disturbed areas rather than implement the AFSPA. The situation in parts of North-East and especially in Jammu and Kashmir is still volatile and the continued enforcement of AFSPA becomes inevitable.

Without it, these States will become the hub of terrorist and anti-national activities with a grave threat to peace and national security. However, it is also imperative that the authorities concerned use the Act with discretion and without antagonizing civilians, so we, as a modern and democratic Indian society can march on ahead to a future full of success, unity and stability.


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