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The AFSPA

The origins and history prior to the act, at least in J&K.


In 1953, the Assam Maintenance of Public Order (Autonomous District) Regulation
Act was passed. It was applicable to the then Naga Hills and Tuensang districts. It
empowered the Governor to impose collective fines, prohibit public meetings and
and detain anybody without a warrant.
On 22 May 1958, the Armed Forces (Assam-Manipur) Special Powers Ordinance was
passed. A bill was introduced in the Monsoon session of Parliament that year.
Parliament approved the Armed Forces (Assam- Manipur) Special Powers Act with
retrospective from 22 May 1958.
Jammu and Kashmir has its own Disturbed Areas Act (DAA) a separate legislation
that came into existence in 1992. After the DAA for J-K lapsed in 1998, the
government reasoned that the state can still be declared disturbed under Section(3)
of Afspa.

HE IS OF THE OPINION
Interestingly, all of the actions allowed under this act can be
taken by an officer, the only requirement being that he is of
opinion
S.3 Disturbed Areas
Whether the definition is subjective or objective? It does not describe the
circumstances under which the authority would be justified in making such a
declaration. Does it need to be changed? Who should have authority to declare an
area to be disturbed- the State and Centre or only the State? whether terrorist act
is a precise definition? To be read with Constitution application order for J&K 1995.

S.4 Special Powers


The Section allows the armed forces personnel to use force for a variety of reasons.
1. 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,
2. carrying weapons, or
3. carrying anything which is capable of being used as a fire-arm or ammunition.
The army can arrest anyone
1. without a warrant under section 4(c)
2. and use any amount of force "necessary to effect the arrest".
3. Under section 4(d), 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.
This is problematic and requires juxtaposition with the position of law in the CrPC for
arrests.

S.5 Power of search


Every person making a search under this Act shall have the power to break open the
lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the
key thereof is withheld.
--- A comparison with CrPC is important here, no warrant required. Anything is
possible!

S.6 Arrested persons


This section states that after the military has arrested someone under the AFSPA,
they must hand that person over to the nearest police station with the "least
possible delay".
What is the least possible delay? Compare with CrPC and the 24 hours limit
prescribed therein. Also, Protection against arrest and detention under Article 22.
Does this have scope for misuse? Definitely!

S.7 Protection of persons acting in good faith


1. No prosecution, suit or other legal proceeding shall be instituted
2. except with the previous sanction of the Central Government

Trial of such persons possible in Civilian courts?


Army Act court-martial or a civilian trial?