A Guide To Understanding

Armed Forces Special Powers Act

(AFSPA)
AIPPM, DeMUN ‘23

Authors
Vansh Abrol, Head Chair
Dhruva Dutt, Vice Chair
Aarush Ram Anandh, Moderator
 Introduction to AFSPA

The history of the Armed Forces (Special Powers) Act (AFSPA) in India dates back to 1958. The law
was originally enacted by the Indian government to address the growing insurgency and unrest in the
Northeastern states of the country (forms of this act can be traced back to periods of British rule in
India). It granted the armed forces special powers to deal with the prevailing “security challenges” in
these regions. Subsequently, AFSPA was extended to Jammu and Kashmir in 1990 due to the eruption
of armed militancy in the region.

The act was intended to provide the armed forces with a “legal framework” to combat “insurgents”
and maintain public order in areas declared as "disturbed.” The key feature of this act is to provide
“special powers” to armed forces operating in areas that the government has declared as “disturbed”

Key features of AFSPA include:

1. **Special Powers to Armed Forces**:

The act empowers the armed forces to maintain public order in areas declared as "disturbed"
by the state or central government. Under AFSPA, armed forces personnel are granted
extensive powers including but not limited to; the authority to arrest without a warrant, use
force (including lethal force) against “suspected individuals”, and conduct searches in any
premises without consent.

2. **No Legal Proceedings without Approval**:

AFSPA provides legal immunity to armed forces personnel from prosecution for actions
taken under the act, except with prior permission from the central government. This
provision has been a major point of contention as it can lead to allegations of human rights
violations and abuse of power.

3. **Declaration of Disturbed Areas**:

The state or central government can declare an area as "disturbed" if they believe it is
facing significant internal security challenges due to insurgency, militancy, or other similar
factors.

4. **Controversies and Criticisms**:

AFSPA has been a subject of intense debate and criticism for several reasons. Human rights
organizations, activists, and many citizens argue that the law gives excessive power to the
armed forces, leading to allegations of human rights abuses, extrajudicial killings, and
impunity. They call for its repeal, citing incidents of civilian deaths and disappearances.

5. **Repeal and Amendments**:

Over the years, there have been demands to repeal AFSPA or amend it to address its
shortcomings and to strike a balance between “security concerns” and safeguarding human
rights. Some states have revoked the act within their territories due to public pressure, but it
remains in force in certain regions.
The issue of AFSPA remains highly sensitive and divisive, with the government, security forces,
human rights organizations, and affected communities holding differing perspectives on its
necessity, effectiveness, and implications on civil liberties and human rights.

Flaws with the AFSPA

(Under Popular Public Opinion)
Alienation of States
The imposition of AFSPA in certain states causes alienation of the state itself from the
rest of the country. It becomes odd when the central government tries to integrate
these states more into India by the AFSPA but when it’s implemented it makes these
states more secluded than the rest rather.

Extra-Judicial Killings
Article 3 and 4 of the AFSPA, permits Armed forces to use force and even execute if
required in order to restore civil harmony. This means that the act gives sweeping
powers for Special forces. For such powers and possibility of mistakes in volatile
situations, extra-judicial killings has been a source of huge problems. This was seen
with the 2013 and 2016 Nagaland killings <delegates are recommended to do
research on their own for this case study. The EB will not be able to effectively cite a
“neutral source”> . The Supreme Court found in a writ petition that 1,538 citizens
were found dead in fake encounters and even after a commission was made by the SC
to review only 6 of the cases, all of them were found to be fake encounters.

Bypassing/overpowering the State

Since the Governor of the state or the Central Government decides the
implementation of AFSPA in a state. The Central Government has the immense
power to impose AFSPA whenever possible without the consultation of the state.
At times, what may happen is when AFSPA is imposed in a state, the state’s rule is
overpowered by the Central Government. Therefore, violating the federal idea of a
nation. This was seen in Tripura 1972
<https://www.drishtiias.com/daily-news-analysis/afspa-and-northeast>

Pros of AFSPA
(Under Public Opinion)
The Armed Forces Special Powers Act (AFSPA) has been a subject of controversy, but its
proponents argue that it serves several essential purposes in dealing with insurgency and
maintaining public order. Here are some of the pros of AFSPA, along with related case
studies:

Counter-insurgency Tool:
 Proponents argue that AFSPA provides a legal framework for the armed forces to
effectively combat insurgency and militancy in areas facing significant security
challenges. It grants them special powers to respond swiftly to threats and maintain
law and order
Swift Action in Disturbed Areas:
AFSPA enables armed forces to take quick and decisive action in areas declared as
"disturbed" without waiting for time-consuming legal procedures. This is seen as
crucial in containing violence and restoring normalcy in regions affected by
insurgency and unrest.
Deterrent Effect on Insurgents
The presence of AFSPA is argued to act as a deterrent to potential insurgents, as the
act grants significant powers to the armed forces in dealing with any threat to national
security. This deterrent effect is seen as essential in discouraging insurgent activities.

Judical Review committees

(With respect to AFSPA)
The Justice Verma Committee:
The committee aimed to review the laws against sexual assault. It mentioned how the
Armed Forces Special Powers Act legitimizes the immunity against sexual violence
against women.

The Justice Jeevan Reddy Committee:

The committee observed that the law had become “a symbol of oppression, an
object of hate and an instrument of discrimination and high headedness”. It had
suggested that the act should be repealed.

Justice Hegde Commission:

The commission observed that there was a lack of enforceable safeguarding rights at
the root level against the “sweeping powers” given to the armed forces.
Suggested reading
Manipur and Northeast
link: https://www.drishtiias.com/daily-news-analysis/afspa-and-northeast
The below research papers can be viewed by accessing the doi link. Paid papers can be
viewed on the scihub website
Sharma, Aparajita, Irom Chanu Sharmila and the Movement Against Armed Forces Special Powers
Act (AFSPA) (February 28, 2014). http://dx.doi.org/10.2139/ssrn.2403555

A Gender Critique of AFSPA: Security for Whom? Amit Ranjan, c/o Somya Nayak, Room
No. 205, Chandrabhaga Hostel, Jawaharlal Nehru University, New Delhi 110 067. E-mail:
amitranjan.jnu@gmail.com
https://sci-hub.se/https://doi.org/10.1177/0049085715589471

https://www.orfonline.org/wp-
content/uploads/2018/08/ORF_Occasional_Paper_164_Kashmir.pdf

https://www.idsa.in/system/files/jds_5_2_aahmed.pdf