1. Armed Forces are deployed in counter insurgency / terrorist
operations when all other forces available to the State have failed
to bring the situation under control. Armed forces operating in such
an environment require certain special powers and protection in the
form of an enabling law.
2. The Armed Forces Special Powers Act (AFSPA) was enacted by the
Parliament and confers certain special powers on members of the
Armed Forces (military forces, air forces operating on ground as
land forces and any other armed forces of the Union (CRPF, BSF, ITBP
etc)for carrying out proactive operations against the insurgents in
a highly hostile environment. AFSPA comes into effect only in
Disturbed Areas. Power to declare an area as Disturbed Area is
vested with the Central and the State Governments.
3. The essence of the important sections of AFSPA is as under:-
(a) Section 3. It lays
down the authority which has power to declare areas to be disturbed.
These authorities are the Central and the State Governments.
(b) Section 4. It gives the Army powers to search
premises and make arrests without warrants, to use force even to the
extent of causing death, destroy arms / ammunition dumps,
fortifications/ shelters / hideouts and to stop, search and seize
(c) Section 6. It stipulates that arrested persons and
seized property is to be made over to the police with least possible
(d) Section 7. It offers protection of persons acting
in good faith in their official capacity. Prosecution is permitted
only after sanction of the Central Government.
4. An examination of the various
powers available to the Police Authorities under the provisions of
the CrPC vis-a-vis those available to Armed Forces under AFSPA would
reveal that the Police Authorities still enjoy more comprehensive
and wider powers relating to arrest, search, seizure, summoning of
witnesses, preventive detention etc than the powers enjoyed by the
5. AFSPA vs CrPC. Section 45 of the CrPC
disallows arrest of public servants however Section 45 of the CrPC
is not applicable in the State of J&K where the Ranbir Penal Code is
applicable and ipso facto the persons of Armed Forces can be
arrested for any perceived excesses, if AFSPA is not in vogue.
6. The Act in general and Sections 3, 4 & 6 thereof in particular,
came up for scrutiny before a Constitution Bench of the Apex Court
in a case titled ‘Naga People’s Movement of Human Rights Vs UOI’.
The five-judge Constitution Bench dealt with the challenge to the
legality of deployment of the Armed Forces in aid to civil power.
The Court unambiguously ruled that AFSPA cannot be regarded as a
colourable legislation or a fraud on the Constitution. The Apex
Court considered and opined that the conferring of powers vide
Section 4 of AFSPA could not be held arbitrary or violative of
Article 14, 19 or 21 of the Constitution.
7. Adequate checks and safeguards are built in the AFSPA to prevent
its misuse. The Do’s and Dont’s issued to the units, having found
approval of Apex Court, have acquired legal status and are binding
on the troops.
8. HR Record of the Indian Army. The provisions of AFSPA have NOT
been misused and is evident from the HR Record of the Indian Army
during the last two decades. Details of allegations of HR violations
of Indian Army are as under :-
(a) HR Cases/complaints received -
(b) Cases Investigated - 1533
(c) No of allegations under investigation - 85
(d) Cases found true - 55 (3.6%)
(e) Cases found false - 1478 (96.4%)
(f) No of persons punished - 129
(g) No of cases awarded compensation - 35
9. The above punishments were awarded
by the Army without any prosecution sanction from the MoD. Thus
AFSPA is NOT a draconian law as purported to be.
Retention of AFSPA
10. The relative peace prevailing in any area cannot be the only
criteria for the removal of AFSPA. The following aspects also need
to be factored in and a comprehensive assessment made before the
dilution / removal of AFSPA :-
(a) Current Situation.
While there may be a comparative decline in terrorist violence,
number of terrorists killed and reduction in number of successful
infiltration by terrorists, as long as there is no
change in the ideology and the factors that aid and support proxy war
the removal of an enabling legislation like AFSPA may be counter
(b) The Emergence of Sanctuaries. Lifting of AFSPA
from certain areas may result in terrorists seeking shelter in such
areas and rebuilding their bases. Eviction of terrorists from such
built up areas sanitised after sacrifices by the army and police
forces is likely to result in civilian causalities, damage to
civilian property and a renewed cycle of violence.
(c) Military Installations and Lines of Communication.
Army garrisons / strategic assets are spread over in population
centres. Even in insurgency prone areas, any action taken by the
Army personnel in these areas without an enabling legislation which does not confer immunity from arrest will
further complicate the issue.
(d) Intelligence Bases. De-notification of AFSPA will
render the painstakingly established sound intelligence bases
(e) Legal Aspects. Any reaction to terrorist action in
Non-AFSPA areas would draw the Army into protracted legal battles on
(f) Restoration of AFSPA. Even if situation worsens in
areas where AFSPA has been revoked, it is unlikely that the
political decision can be reversed easily to re-invoke the Act.