AFSPA and Human Rights – Internal Security Study Notes

Historical Context and Legal Framework

The origins of AFSPA can be traced back to the British colonial era, specifically the Armed Forces (Special Powers) Ordinance of 1942, which was enacted to suppress the Quit India Movement. Post-independence, the act was promulgated as an ordinance in 1958 to deal with the insurgency in the Naga Hills. It was subsequently passed by Parliament as the Armed Forces (Special Powers) Act, 1958.

The act is only applicable in regions declared as “disturbed areas” under Section 3 of the Act. This declaration is made by the Central or State government when, in their opinion, the area is in such a dangerous or disturbed condition that the use of armed forces in aid of civil power is necessary. The Governor of the State or the Administrator of a Union Territory also possesses the authority to notify an area as disturbed.

Key Provisions and Extraordinary Powers

AFSPA confers sweeping powers upon the armed forces to ensure security in volatile zones. These powers are designed to bypass standard procedural hurdles that might otherwise hinder rapid military response. The most significant provisions include:

• Section 4(a): Allows an officer to fire upon or use force against any person acting in contravention of law or order, even if it results in death, to maintain public order.
• Section 4(b): Grants the authority to destroy any shelter, dump, or fortified position that is being used by armed insurgents.
• Section 4(c): Empowers personnel to arrest individuals without a warrant based on “reasonable suspicion” of a cognizable offense.
• Section 4(d): Provides the power to enter and search any premises without a warrant to recover arms, ammunition, or to apprehend suspected persons.

“The exercise of these powers is subject to the condition that the officer must give due warning before using force, and the arrested person must be handed over to the nearest police station with the least possible delay.”

The Human Rights Debate

The central contention regarding AFSPA is the conflict between national security and civil liberties. Critics argue that the act creates a “state of exception” where the rule of law is suspended. The provision of Section 6, which requires prior sanction from the Central Government for prosecuting security personnel, is often cited as a major hurdle to accountability and justice for victims of alleged human rights violations.

Several committees have reviewed the act over the years. The Justice B.P. Jeevan Reddy Committee (2005) recommended the repeal of AFSPA, suggesting that its provisions be incorporated into the Unlawful Activities (Prevention) Act (UAPA) instead. The committee argued that AFSPA has become a symbol of oppression and a source of alienation among the local population, particularly in the North-East.

Judicial Scrutiny and Landmark Judgments

The Supreme Court of India has been instrumental in interpreting the limits of AFSPA. In the landmark case Naga People’s Movement of Human Rights v. Union of India (1998), the Constitutional Bench upheld the validity of the act but laid down strict guidelines. The Court emphasized that the declaration of an area as “disturbed” must be subject to periodic review and cannot be perpetual.

Furthermore, in the Extrajudicial Execution Victim Families Association (EEVFAM) v. Union of India (2016), the Supreme Court clarified that the immunity granted under Section 6 is not absolute. It ruled that the armed forces cannot use excessive or retaliatory force, and any instance of an encounter must be thoroughly investigated, as the law does not protect personnel who engage in criminal acts under the guise of duty.

Key Points to Remember

• Enactment: Passed in 1958; initially applied to the Naga Hills.
• Authority: Power to declare “disturbed” rests with the Central/State government or Governor.
• Legal Immunity: Section 6 mandates prior government sanction for prosecution.
• Accountability: Supreme Court guidelines mandate that force must be used only as a last resort.
• Recent Trends: The government has been gradually reducing the number of “disturbed” areas in states like Assam, Nagaland, and Manipur.
• Criticism: Often viewed as a barrier to the integration of border populations and a source of civilian-military friction.

Previous Year Question Hints

1. “The Armed Forces (Special Powers) Act has been a subject of intense debate regarding its necessity and its impact on human rights. Critically examine the arguments for and against the continuation of AFSPA.”
2. “Discuss the constitutional validity of AFSPA in light of the Supreme Court’s observations on the accountability of security forces in disturbed areas.”

Quick Revision Summary

• AFSPA provides the military with legal cover to operate in “disturbed areas.”
• It grants powers of search, seizure, arrest, and use of lethal force.
• The Act is a legacy of the 1942 Ordinance, formalized in 1958.
• Section 6 provides immunity, requiring central sanction for prosecution.
• The Jeevan Reddy Committee recommended replacing AFSPA with UAPA.
• The Supreme Court maintains that immunity is not absolute and does not cover criminal acts.
• Periodic review of the “disturbed” status is a mandatory legal requirement.
• The act is currently being phased out in various parts of the North-East.