File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Analysis Of The Armed Forces (Special Powers) Act, 1958

Armed Forces Special Powers Act( AFSPA), 1958 has been a controversial law, which mortal rights groups and civil society organizations say has been abused by the service to commit human rights violations, including extrajudicial killings, torture, and executed discoveries. The law has also been blamed for fostering fear and distrust between the service and original communities, hampering sweats to make trust and conciliation in conflict- affected areas.

Under the AFSPA, the service is given broad powers, including the power to arrest unauthorized persons, if necessary, to use force( including deadly force), and to enter and search any premises they aren't certified. The law also provides legal immunity to the military for any conduct under its provisions. The law was first enacted in 1958 to tackle the Naga insurgency in the north-eastern state of Assam, and has since been applied to other regions of India facing armed conflict or insurgency.

The AFSPA[i], was enacted by the Indian parliament in 1958 to give the Indian army special powers to deal with the Naga insurgency in the north-eastern state of Assam. The law was enacted in response to the violent activities of Naga rebels seeking secession from India. AFSPA initially covered only the state of Assam, but its scope was later extended to other areas facing armed conflict or insurgency, such as Jammu and Kashmir, Manipur, and parts of the Northeast.

The main challenge with the act or the outcome of the act is that there is lack of accountability for the military's actions under the law has led to allegations of impunity and other acts of violence. The AFSPA case has been the subject of much controversy and protest, by a wide range of activists and human rights groups for cancellation or modification. However, the Indian government has argued that the law is necessary to promote civil order and counterinsurgency in areas facing security challenges.

The main motivation or the reason as to why the researcher has chosen this topic is because this is a much lesser discovered topic for public in general and specially the people not belonging to the areas with military disturbances do not have any idea about the suffering of the people residing to that particular area, the people getting affected are often labelled as collateral damage. The research article also answers about the Violation of the right to life and personal liberty guaranteed by Article 21[ii].

This research will illustrate the violations of the human rights aspect and throw light on the impact and the merit of this particular act on the different states of India. This research paper will also be a source of an unbiased discussion and analysis of the sensitive issue of the presence of the army in the different states of India.

Literature Review:
The act has not received much attention from the Indian academic community, aside from harsh criticism from the media. There are no well-known writers for the same, however the following is a thorough list of essential books and authors that have been acknowledged in this research paper:

Everyone Lives in Fear: Patterns of Impunity in Jammu and Kashmir, Volume 18[iii] is a book written by the human rights monitoring group that provides a comprehensive review of the military forces in the Jammu and Kashmir region. It talks about the legal reasons why abuses and impunity occur. Section 197 of the Criminal Process Code - The Military Forces (Jammu and Kashmir) Special Powers and Section 45 of the Criminal Procedure Code - Preventing prosecution. The violations that have recently occurred and the ongoing impunity for them�killings, kidnappings, torture, and other harsh, inhumane, and humiliating treatment:
Are discussed further. murders with political motivation, executions without trial, and intimidation. In his book Production of Postcolonial India and Pakistan, 2012[iv], Ted Svensson attempts to examine the occasion and simultaneous action that the establishment of India and Pakistan as "postcolonial" states in August 1947 constituted and effectuated. By examining India and Pakistan simultaneously and mutually dependently, Svensson offers new experiences into the current writing while attempting to conceptualise freedom. Svensson demonstrates the constitutive and inflexible concept via his inquiry.

A detailed overview of the dispute in the state and the relevant international laws are presented in The Human Rights Crisis-A[v] Pattern of Impunity, published in June 1993 by Asia Watch, a part of Human Rights Watch. It provides a thorough review of the wrongdoings committed by government representatives.

Human Rights:
Commitment and Betrayal,[vi] book by renowned author M.S. Chitkara, discusses the military forces' breaches of human rights in the state of Jammu and Kashmir. In his book India and Counterinsurgency: Lessons Learned[vii], political science professor Sumit Ganguly claims to have filled a significant gap in the literature by focusing on India's experiences waging counterinsurgency campaigns after gaining independence in 1947. It focuses on the lessons that many governments may learn from India's extensive efforts in order to satisfy the urgent military and citizen demands in the counterinsurgency zone.

In his book Practicing Self-Government 2013[viii], another well-known author, Yash Ghai, explains the institutional and political requirements for a practical arrangement without an army. With the aid of several interviews for her study book Kashmir in Conflict, 2010, Victoria Schofield considers the hopes and worries of the populace regarding the presence of the troops in the state.

This study will highlight the human rights breaches and provide light on the implications and value of this specific statute for the various Indian states. The contentious subject of the army's presence in the various Indian states will also be the subject of a fair debate and analysis in this research study.

The following are the research's main goals:
  1. To evaluate the (AFSPA) Act's effects critically.
  2. To research the effects of the (AFSPA) Act and the factors that contribute to abuses of human rights.
  3. To examine the state's past, present, and socioeconomic situation in order to determine whether the conduct is in any way harmful to society's overall well-being.
The doctrinal technique is used by the researcher be the one for the article since it would need a substantial amount of reading and critical thought. Notable writers' books, journal papers, and media stories have all been browsed and examined as a secondary research tool. Legal literature that is available in India has been reviewed, analysed, and duly cited. The article has been updated using a number of web databases and internet search engines.

Research Questions:
The following would be the primary research questions for the study:
  1. What has been the impact of AFSPA on human rights, security, and conflict resolution in the areas where it exists in India? (i.e., the seven sisters)?
  2. What clauses does the Armed Forces Special Powers Act contain?
  3. What possible remedies or substitutes may be used to help the sufferers get better?

When it comes to the impact of AFSPA The Indian Supreme Court is now hearing various lawsuits that question whether the AFSPA is constitutional. The impact of AFSPA (Armed Forces (Special Powers) Act) in Northeast India is a complex and controversial issue. Assam and Manipur were the first two North Eastern states to be affected by AFSPA, which was amended in 1972 and expanded to include all seven states in the region (Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram, and Nagaland).

Under the pretext of "assisting civil power," AFSPA grants army forces access to extensive and unrestricted powers to shoot, arrest, and search anyone which give the security forces more powers to deal with insurgencies and maintain law and order. The Act has been in effect in various parts of Northeast India for decades, and its impact on the region's society, politics, and security warrants continued debate and scrutiny.

Potential impacts of AFSPA in Northeast India include:
  • Human Rights Violations: There have been reports of human rights violations by security forces operating under the law, including extrajudicial killings, torture , and involuntary detention. The law gives security personnel immunity for their actions, making it difficult to hold them accountable for any abuse
  • Disruption of Public Life: The law gives the security forces a wide range of powers, including the power to arrest people without warrants and to shoot and kill some people in some cases. This can create fear and mistrust among civilians, disrupt daily life, and impede economic and social development.
  • Insurgent Activity: Critics say AFSPA could actually fuel insurgency by stoking anger and resentment among local communities. The move has been criticized for alienating people from the Indian state and giving militants an excuse to recruit new members and carry out attacks.
  • Lack of legal impunity: The measure has been criticized for imposing legal sanctions on security forces and creating a culture of impunity for human rights violations. This can undermine the credibility of the state and its institutions and undermine the rule of law.

Notable cases which were published in various articles are:
  • Malom Massacre:
    In 2000, 10 civilians, including a 62-year-old woman and an 18-year-old girl, were killed in firing by Assam Rifles personnel in Malom village in Manipur in the 19th century. The case sparked widespread protests and calls for the repeal of AFSPA. [ix]
  • Tinsukia Massacre:
    In 1985, Assam Rifles personnel allegedly killed 7 civilians including women and children in Tinsukia district of Assam. The incident sparked a public outcry and demands for lifting AFSPA.[x]
  • Oinam Story:
    In 1987, a 28-year-old woman named Thangjam Manorama was allegedly raped and murdered by Assam Rifles personnel in Manipur. The incident sparked widespread protests and the formation of the Meira Paibi women's movement in Manipur. [xi]

In conclusion, the impact of AFSPA in Northeast India is a complex and multi-faceted issue that requires careful analysis and analysis. While the law may have been introduced with the aim of restoring law and order in the province, its impact on society and the region's security and development is subject to ongoing debate and scrutiny.

In the case of Indrajit Barua v. State of Assam[xii], the Delhi High Court determined the AFSPA to be constitutional, and the only legal route to remove the Act is for the Supreme Court to rule that it is unconstitutional. Given the AFSPA's text and implementation, it is incredibly astonishing that the Delhi High Court determined the AFSPA to be constitutional. To put an end to army rule in the North East, the court or the legislature should annul the AFSPA since it is illegal.

The Content/Clauses of AFSPA Includes 6 Section in total after repealing of section 7 in 1960[xiii]. The remaining section dectates:

Section 1: This section specifies the Act's name and, consequently, the geographic territories it covers (Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram).

Section 2: In defining the Act, this section leaves several terms vague. The 1972 revision's section (a) described the troops as "the military and air force of the Union so acting." The definition of "military forces and, consequently, the air forces functioning as ground forces" was used in the 1958 version of the Act. Every place identified inherently under section 3 qualifies as a "disturbed area" according to section 2(b). According to Section 2(c), any other terms that are not specified in the AFSPA have the meanings ascribed to them in the Army Act of 1950.

Section 3: This section empowers the central government to declare an area "disturbed" through factors such as insurgency or rampant terrorism, and authorizes the deployment of the military to maintain law and order.

The ambiguity of this term was contested in the case of Indrajit Barua v. State of Assam[xiv]. The court determined that while the Indian government and other citizens understand what is meant by a disturbed region, the lack of clarity in the definition is not a concern. The statement that a neighbourhood is disturbed isn't subject to court review, though, because it depends on the government official's approval.

Section 4: This section authorizes the military to use force, including deadly force, to maintain law and order in an area of ​​violence, and to arrest and detain individuals without warrants The powers provided to the troops stationed in a troubled region are outlined in this section. Only a jawan (private) lacks these rights; all other military officers and non-commissioned officers are given them. The Section permits the use of force by the military personnel for a variety of purposes.

According to Article 21 of the constitution[xv], which stipulates that "No person shall be deprived of his life or personal liberty unless pursuant to procedure provided by law," the clause is obviously in violation of the right to life and personal liberty. The personal liberty of the people is seriously threatened if military troops shoot to kill just because they have that belief.

This aspect of the legislation is in no manner a "due process of law" that can be invoked as a justification for denying someone their right to life. Due process is synonymous with "procedure established by law," as the honourable Supreme Court ruled in the Maneka Gandhi v. Union of India[xvi], it was determined that a legal method must be fair, just, and reasonable rather than capricious and arbitrary; otherwise, it is not a procedure at all and does not comply with Article 21[xvii]. The army is accused of acting in a highly extrajudicial and inappropriate manner in the regions designated as disturbed as a result of this incredibly harsh clause..

Section 5: According to this clause, the military is required to deliver anyone detained in accordance with the AFSPA as soon as possible to the local police station. There is no specification of what the minimum amount of delay possible is in the act.

When someone is arrested, army officials are required to transfer them as soon as possible to the officer in command of the closest police station In Union of India vs. Horendi Gogoi[xviii]

Section 6: This clause makes it clear that without the Central Government's consent, no legal action may be taken against any member of the armed forces who is operating in accordance with the AFSPA. The victims of violations committed by the military services are left with no recourse under this clause.

Also, if any member of the armed forces is ever tried for any abuse or wrongdoing, they will be tried in martial tribunals, whose rulings are often not published or made public. Because of this, a number of instances of violations of human rights have gone unreported. In actuality, the NHRC never even had an opportunity to examine any. The military forces are excluded from the National Human Rights Commission's (NHRC) jurisdiction under Section 19(b) of the POHR Act[xix][xx], and even if issues involving them are handled by the NHRC, it only does so after requesting a report from the central government.

The Armed Forces (Special Powers) Act (AFSPA) controversy involves complicated concerns that call for a variety of solutions.

Here are a possible remedies or substitutes may be used to help the sufferers get better:
  1. Bolster accountability systems: To guarantee that the military is held accountable for any human rights abuses, effective accountability procedures need to be created. This may entail creating an impartial commission to look into claims of human rights breaches
  2. Increased openness: The AFSPA should be implemented transparently, with frequent reporting and implementation monitoring. This can entail creating a system for gathering complaints from locals and providing reports on the code's implementation.
  3. Consultation with communities: Before the AFSPA is implemented in communities, civil society groups and communities should be consulted. To guarantee this, there may be public hearings and debates.
  4. Review of the law: The AFSPA's provisions should be examined to see if they comply with global human rights norms. This might entail reviewing the clauses exempting members of the armed services from prosecution and eliminating clauses that are not essential to upholding the peace.
  5. Training for the NCO's and JCO's: More training is required for members of the armed forces in the areas of human rights and the use of force. This could entail instruction on the fundamentals of international human rights legislation and how to employ non-lethal force when it is essential to use force.
To guarantee that the AFSPA is implemented in a way that respects human rights and the rule of law, this approach calls for coordinated efforts by the government, military, civil society groups, and communities.

This essay provided an overview of the AFSPA, presenting, describing, analysing, researching, and discussing it in order to increase awareness of the aforementioned law. Moreover, this paper questions and clarifies the relevance of the AFSPA in modern times, and it makes some recommendations for improving the legislation to lessen human rights abuses in unrest-affected areas and improve the image of the Indian army in its upcoming counterinsurgency strategy.

In summary, the AFSPA grants the military the authority to uphold law and order in "disturbed regions." They have the power to forbid gatherings of five or more people in a certain location, and after giving proper warning, they have the right to use force or even open fire if they believe someone is breaking the law.

The army may also detain someone without a warrant, enter a building without a warrant, inspect the contents of the building, and prohibit the possession of guns if there is probable suspicion. Any individual who has been detained or arrested may be given to the officer in charge of the nearby police station along with a report outlining the events leading up to the detention.

Only when the magnitude of the disturbances is so great that the local police or paramilitary forces are unable to handle it on their own and the administration becomes nearly paralysed, is the AFSPA implemented by the Central government in a particular State.

The Act grants the Armed Forces broad authority to stop and search vehicles, detain suspects without a warrant, search homes or places of business thought to be housing terrorists or storing illegal weapons, ammunition, or explosives, use force or live fire on individuals causing serious disturbances, and destroy militant hideouts and weapons dumps.

The Act granted legal protection to members of the Military Forces from prosecution, save with the approval of the Central Government, in light of the nature of their service. The Supreme Court did, however, revoke this privilege in 2016 in response to claims that the security forces had violated human rights.

Human rights violations perpetrated in the name of and with the benefit of the AFSPA cannot be condoned, thus the government should adopt a scientific and humane strategy to address the socioeconomic issues in the troubled areas rather than enacting the AFSPA. Because of the ongoing instability in the North-East, particularly in Jammu and Kashmir, the prolonged use of AFSPA is unavoidable.

Without it, the peace and security of these States will be seriously threatened as they serve as a focal point for terrorist and anti-national activity. Yet in order for us to go forward as a successful, united, and stable Indian society, it is equally crucial that the relevant authorities apply the Act with restraint and without provoking the public.

  1. The Armed Forces (Special Powers) Act, 1958.
  2. The Constitution of India, 1950.
  3. Meenakshi Ganguly (2006). Everyone Lives in Fear: Patterns of Impunity in Jammu and Kashmir, Volume 18. India: Human Rights Watch.
  4. Ted Svensson (2012). Production of Postcolonial India and Pakistan. India: Routledge.
  5. Human Rights Watch (1993). The Human Rights Crisis in Kashmir: A Pattern of Impunity. USA: Human Rights Watch.
  6. M.G. Chitkara (1996). Human Rights: Commitment and Betrayal. India: APH.
  7. Sumit Ganguly, David P. Fidler (2009). India and Counterinsurgency: Lessons Learned. US: Routledge
  8. Yash P. Ghai, Sophia Woodman (2013). Practicing Self-Government. US: Cambridge University Press.
  9. Article published on NDTV website dated Dec 07, 2014 by Alok Pandey, B Sunzu. Visited on 24-03-2023 at 15:30hrs.
  10. Article published in, titled "A hate crime directed at one community': Killings in Tinsukia deepen the ethnic divide in Assam" by Arunabh Saikia dated Nov 04, 2018. Visited on 24-03-2023 at 16:00 hrs.
  11. Article published in The Hindu, titled "Disturbing Act: The AFSPA's history in the north-eastern region" by K.S. SUBRAMANIAN dated Mar 17, 2022. Visited on 24-03-2023 at 20:00 hrs.
  12. AIR 1983 Delhi 513
  13. First Schedule, Section 2 of the Amending and Repealing Act of 1960 (58 of 1960) dated 26.12.1960.
  14. At page 525 of AIR 1983 Del 513.
  15. The Constitution of India, 1949
  16. AIR 1978 SC 597
  17. The Constitution of India, 1949.
  18. (2006) 3 GLR 817
  19. Protection of Human Rights Act of 1993.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly