It can be argued that the Armed Forces Special Powers Act (AFSPA or the Act hereafter) is not only undemocratic but also unjust. This is the authors’ response to ‘AFSPA: National necessity or human rights violation?’, by Brig. (Retd.) Xerxes Adrianwalla.
The AFSPA was enacted in 1958 to deal with the Naga uprising in the then composite state of Assam. It was reviewed by the Justice B. P. Jeevan Reddy Committee in 2005, which recommended that the Act should be scrapped.
The Justice Reddy Committee observed that “…agitations such as in Manipur and elsewhere are merely the symptoms of a malaise, which goes much deeper” and called on the government to address the “core issues.”  Despite widespread opposition to the AFSPA over the decades and the recommendations of various government committees, the Act remains in place.
The AFSPA was modelled on the British Indian Armed Forces (Special Powers) Ordinance, 1942, a colonial legislation put in place to subdue the ‘Quit India Movement’. After Independence, the government of India enacted various laws to deal with the turbulent situation in the North East. This included the Assam Maintenance of Public Order (Autonomous Districts) Act, in 1953; the Assam Disturbed Areas Act, 1955; and the Armed Forces (Assam and Manipur) Special Powers Act, 1958. The same Act was extended to Jammu and Kashmir (J&K) in 1990.
The AFSPA contains six clauses which discriminate against the North East and J&K, where it is enforced. It creates three categories of citizenship, of people who are: (1) Protected by the Act – personnel of the security forces; (2) Vulnerable to the Act – the general public in places where the Act is in force and (3) Unaffected by the Act – people living in parts of the country where the Act is not applied.
The Preamble and Section 1 of the AFSPA spell out the purpose of the provisions, the title and extent respectively. Section 2 defines the terms “armed forces” as “the military forces and the air forces operating as land forces, and includes any other forces of the Union so operating” and “disturbed areas” as areas which are, for the time-being, declared by notification under Section 3 to be disturbed areas. However, other words and expressions used in the Act but not defined shall have meanings as assigned in the Air Force Act (45 of 1950) or the Army Act (46 of 1950).
To enable the exercise of the special powers given to the armed forces by the AFSPA, Section 3 of the original Act empowered only a state government to declare a region as a “disturbed area.” But this power has been transferred to the central government, the Governor of a state or the Administrator of a Union Territory by Act 7 of 1972 (amendment to the Act), subsuming the power of the state government and its legislative Assembly. This was done purportedly keeping in view the duty of the Union under Article 355 of the Constitution of India to protect every state from internal disturbances.
However, the Disturbed Areas (Special Courts) Act, 1976, provides a clear definition of “disturbed areas.” Section 3 states that an area may be declared disturbed when “a State Government is satisfied that Clause (i) there was, or Clause (ii) there is, in any area within a State, extensive disturbance of the public peace and tranquillity, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may … declare such area to be a disturbed area.”  The lack of clarity in the definition of “disturbed areas” resonates with the government’s reluctance to introduce safeguards in the application of the AFSPA.
Under Section 4, titled ‘Special Power of the Armed Forces’ Clauses (a), (b), (c), and (d), the Act gives extraordinary powers to even a non-commissioned officer in the armed forces to shoot to kill; to enter, search and destroy any building and arrest anyone on suspicion without warrant. The officer requires no permission from superiors, is not answerable to anyone and does not have to justify the execution of these powers. These provisions are in stark contrast to the Code of Criminal Procedure (CrPC), 1973, the Indian Penal Code, 1860, and the Constitution, particularly the Fundamental Rights.
For instance, the exercise of power under Section 4 Clause (a) directly violates Article 21 of the Constitution, which states that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Similarly, exercising powers under Clauses (b), (c) and (d) amounts to a breach of Articles 21 and 22, which provide for the “protection of life and personal liberty” and “protection against arrest and detention in certain cases” and of the relevant Sections of the CrPC which specify the procedure for “arrest of persons.”
Section 5 of the AFSPA states that any arrested person can be handed over to the officer-in-charge of the nearest police station “with the least possible delay.” This Section is not in line with Article 22 Clause (2) of the Constitution and Section 57 of the CrPC, which state that any person arrested should be produced before the nearest magistrate within 24 hours (excluding the time necessary for the journey from the place of arrest to the court; and no such person shall be detained in custody beyond the said period without the authority of a magistrate). The phrase “with the least possible delay” is vague and can be used to justify detaining a person for more than 24 hours.
The most offensive part of the AFSPA is Section 6, ‘Protection to Persons Acting under the Act’, which provides immunity from any prosecution, suit or other legal proceeding to “anyone in respect of anything done or purported to be done in exercise of the powers conferred by the Act, except with previous sanction of the Central Government.” This provision denies victims the “right to constitutional remedies” as provided in Article 32, which is the core of the Constitution of India.
In 1997, the Supreme Court ruled that the AFSPA was constitutional. But that does not mean it is just. The vagueness of the terms used in the provisions of the Act provide ample scope for misuse. To deal with potential abuses, the Justice Reddy Committee suggested, amongst other measures, that grievances cells should be established.
The Committee called the AFSPA “a symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness.”  The fact that people hate this Act should be sufficient ground for repeal. The government’s review of the Act, by appointing the Committee after a public agitation, speaks of India’s democratic strength. But the failure to repeal it reflects the government’s weakness.
After demanding a repeal, and when the Reddy Committee submitted its report, civil society’s agitation and demand, in the North East and elsewhere in the country, diminished. Only activists like Irom Sharmila from Manipur, who has been fasting for 12 years demanding that the Act should be repealed, have kept the issue alive.
The Centre also backtracked on the repeal. The government raised hopes and then stepped back because it could not persuade the armed forces to accept even minimum changes to the Act. A democratic government agreed to a democratic demand voiced by the people of a first-ever review of national security legislation. But the government’s actual response to dealing with impunity has been inadequate.
The Reddy Committee’s report was significant because it wished to restore power to a civilian set-up, and reduce militarisation and brutalisation. The armed forces have procedures to deal with abuse of power and we are glad to note that there has been an increase in the number of prosecutions of those who have broken rules.
The issues in places declared as ‘Disturbed Areas’ are complex and difficult to resolve. The AFSPA has not solved insurgency in the North East or in J&K. Much of the North East, even parts of Manipur, is at greater peace today than it has been for decades. The recent riots in the Bodoland Territorial Autonomous Districtsof Assam are not directly connected with insurgency. Not a single Indian soldier or insurgent has fallen in combat in Nagaland in over three years. Factional fights continue, but are being addressed through dialogue. All major groups, barring a few, are either in detention or in talks with New Delhi.
If the situation has improved to this extent by the government’s own admission, what is the need now for the AFSPA? The Centre’s approach reflects insecurity. The government cannot function where the rights of the people are denied – by the government itself, by its security agencies or by non-state groups. It cannot govern, meet basic needs or deliver essential services in a state of constant tension, conflict and fear. Militant groups must also accept that basic services should not be interrupted because the needs of the people must be met.
The critical role in anti-insurgency operations must be that of the police, which should no longer be located below the army or security forces. The police have the personnel, the knowledge, the skills, the language and mobility to enable greater effectiveness. The army must return to its true role as the last resort of handling internal crisis, not the first and permanent one.
We reiterate the recommendations of the Reddy Committee – the AFSPA needs to be either repealed or intensively amended to enable it to work in consonance with the Constitution and other laws of India
Professor Sanjoy Hazarika holds the Dr. Saifuddin Kitchlew Chair at Jamia Millia Islamia, New Delhi, where he is also Director, Centre for North East Studies and Policy Research. He has been a member of various academic organisations and official committees, including the Justice Jeevan Reddy Committee to Review AFSPA, the Society of Indian Institute of Advanced Studies, Shimla, and the North East India Studies Programme, Jawaharlal Nehru University.
K. Kokho is Assistant Professor at the Centre for North East Studies, Jamia Millia Islamia, New Delhi.
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 Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, p. 11.
 See Section 3, The Disturbed Areas (Special Courts) Act, 1976.
 Ibid, n 1, p. 75.