Why In News?

 The Union Ministry of Home Affairs (MHA) has extended the Armed Forces (Special Powers) Act (AFSPA), 1958, for another six months in designated "disturbed areas" across parts of Manipur, Nagaland, and Arunachal Pradesh.

What Is AFSPA?

Origin: Enacted by Parliament in 1958 against the backdrop of the Naga insurgency, the Armed Forces (Special Powers) Act grants statutory powers to the Indian Armed Forces and Central Armed Police Forces (CAPF) deployed in areas declared as "disturbed".

Aid to Civil Power: The Act enables the Union military to act "in aid of the civil power" under the Seventh Schedule (Entry 2A of the Union List) to suppress armed rebellions and restore public order.

Counter-Insurgency Focus: Designed as a temporary crisis-management legislation, it equips security forces with sweeping operational authorities to conduct counter-insurgency and counter-terror operations without standard civilian procedural impediments.

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What Constitutes A 'Disturbed Area' Under Section 3?

  • Under Section 3 of AFSPA, an area can be declared "disturbed" if the Central Government, the Governor of the State, or the Administrator of the Union Territory forms the opinion that the area is in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is necessary.

  • 1972 Amendment (Concurrent Power): Originally, only the State Governor held this power; the 1972 Amendment empowered the Central Government to unilaterally declare an area "disturbed" even without the State Government’s concurrence.

  • Assessment Criteria: Ground evaluations assess the intensity of armed insurgent violence, inter-ethnic clashes, extortion syndicates, cross-border infiltration routes, and the incapacity of local police forces to maintain public order.

What Powers Does AFSPA Provide To The Armed Forces?

Section 4(a) — Use of Lethal Force: Empowers any commissioned officer, warrant officer, or non-commissioned officer to open fire or use force, even causing death, against any person acting in contravention of laws prohibiting assemblies of five or more persons, after issuing due warning.

Section 4(b) — Destruction of Fortifications: Authorizes armed personnel to destroy any arms dump, fortified position, shelter, or training camp used by armed insurgent groups.

Section 4(c) — Arrest Without Warrant: Permits arrest without a warrant of any individual who has committed, or is reasonably suspected of having committed, a cognizable offence.

Section 4(d) — Entry and Search Without Warrant: Grants unrestricted power to enter and search any premises without a warrant to make arrests or recover unlawfully held arms and ammunition.

Section 5 — Handover to Civilian Police: Mandates that any arrested person must be handed over to the officer-in-charge of the nearest police station with the "least possible delay," accompanied by a report of circumstances leading to the arrest.

Section 6 — Immunity from Legal Prosecution: Establishes legal immunity stipulating that no prosecution, suit, or legal proceeding can be instituted against any member of the armed forces without the prior sanction of the Central Government.

What Are The Strategic Arguments Supporting AFSPA?

Asymmetrical Counter-Insurgency Terrain: Insurgent groups in the Northeast possess sophisticated automatic weaponry, jungle bases, and cross-border hideouts, requiring specialized operational flexibility for military patrols.

Protection from Frivolous Litigation: Section 6 shields field commanders from malicious legal prosecution and organized insurgent weaponization of the civil justice system.

Deterrence against Cross-Border Secessionism: Ensures operational readiness along porous international borders (e.g., India-Myanmar border) where militant outfits attempt to establish parallel administrations.

Civilian and Critical Infrastructure Security: Guarantees protection for national developmental assets, railway networks, and vulnerable border communities during flare-ups.

What Are The Major Concerns And Human Rights Criticisms?

Accountability Deficit: The near-total refusal of the Central Government to grant sanction for prosecution shields personnel accused of extra-judicial atrocities from trial in civilian courts.

  • Example: The 2021 Oting Massacre in Nagaland, where the Army's 21 Para Special Forces mistakenly killed 14 coal miners; the Union Government subsequently declined sanction to prosecute the 30 implicated soldiers.

Extra-Judicial Executions and Forced Disappearances: Prolonged immunity has fostered a culture of impunity, leading to documented cases of staged encounters.

  • Example: The EEVFAM Case in Manipur (2016), where the Supreme Court mandated CBI investigations into 1,528 alleged extra-judicial killings by security forces.

Erosion of Civil-Military Relations: Decades of military policing alienate local populations, weaken civilian institutions, and entrench public distrust against national integration.

  • Example: Irom Sharmila’s 16-Year Hunger Strike (2000–2016) following the Malom Massacre in Manipur, symbolizing deep grassroots resistance against military rule.

Perpetuation of Emergency Governance: Conceived as a short-term emergency measure, AFSPA’s continuous enforcement for over six decades reflects governance dependency on military coercion over political solutions.

  • Example: Justice Jeevan Reddy Committee Report (2005), which explicitly termed AFSPA a "symbol of hate, oppression and instrument of high-handedness" and recommended its complete repeal.

What Has The Supreme Court Ruled On AFSPA?

Naga People’s Movement of Human Rights vs Union of India (1997): A Constitution Bench upheld the constitutional validity of AFSPA but circumscribed it with binding operational guidelines:

  • Section 3 declarations must be reviewed periodically at least once every six months.

  • Conferred powers under Section 4 must be exercised with minimal force and only as a measure of last resort.

  • Formulated mandatory "Dos and Don’ts" for armed forces, prohibiting torture and safeguarding civilian rights.

EEVFAM vs Union of India (2016) (Demolition of Blanket Immunity)

  • Ruled that the armed forces do not enjoy blanket immunity under Section 6 for extra-judicial executions.

  • Held that an internal emergency cannot justify killing citizens; excessive force deployed by military personnel is subject to civilian criminal investigation and court jurisdiction.

  • Emphasized that AFSPA cannot be applied indefinitely, as democracy cannot survive where military administration replaces civil governance permanently.

Way Forward

Implement the Justice Jeevan Reddy Committee (2005) Recommendations: Repeal AFSPA and integrate necessary counter-insurgency powers into the Unlawful Activities (Prevention) Act (UAPA), 1967, embedding explicit statutory safeguards against human rights violations.

Incorporate Second Administrative Reforms Commission (2nd ARC) Guidance: The 5th Report of the 2nd ARC recommended replacing AFSPA with a modernized, rights-compliant legal framework that subjects military deployment to robust civilian magistrate oversight.

Establish Independent Human Rights Ombudsmen: Create joint civilian-military ombudsman bodies in conflict districts to investigate custodial complaints and fast-track compensation within fixed timeframes.

  • Example: Santosh Hegde Commission (2013) model for independent inquiry into disputed operational killings.

Calibrated Gradual Demilitarisation: Continue progressive scaling back of "disturbed area" notifications as local police capabilities improve, reserving armed forces strictly for border defense and deep-jungle insurgent operations.

  • Example: Phased Withdrawal from Tripura (2015) and Meghalaya (2018) following successful political settlements and police capacity-building.

Prioritize Political Dialogue and Accords: Address root causes of alienation through inclusive dialogue, infrastructure development, and peace pacts rather than military dominance.

  • Example: Bodo and Karbi Anglong Peace Accords, demonstrating that negotiated settlements establish lasting internal stability.

Conclusion

Balancing national security with fundamental rights requires transitioning from prolonged military policing under AFSPA to strengthened civil law enforcement and sustained political reconciliation across the Northeast.

Source: INDIANEXPRESS

PRACTICE QUESTION

Q. AFSPA seeks to balance national security with constitutional rights. Examine the legal safeguards and challenges associated with its continued application.