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EditorialsAFSPAHuman RightsDisturbed AreaNaga Peoples MovementJeevan ReddyNHRCArticle 21
Should the Armed Forces (Special Powers) Act, 1958 (AFSPA) continue in its present form? The Act gives the armed forces extraordinary powers in areas declared "disturbed", including the power to use lethal force and a bar on prosecution without Central Government sanction. The debate is whether these powers are a necessary tool of counter-insurgency or an invitation to impunity that no democracy under Art 21 should tolerate.
- AFSPA was enacted in 1958 to deal with the Naga insurgency in the North-East, with roots in the colonial Armed Forces (Special Powers) Ordinance of 1942 used against the Quit India movement. A separate Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 applies to that territory.
- The Act operates only once an area is declared a disturbed area by the Governor, the administrator of a Union Territory, or the Central Government, under a condition that the use of the armed forces in aid of the civil power is necessary.
- The contested powers: an authorised officer may fire even to the causing of death after due warning against a person contravening an order banning the assembly of five or more persons or carrying weapons; arrest without warrant; enter and search without warrant; and destroy arms dumps. No prosecution may be instituted except with the prior sanction of the Central Government.
- The constitutional anchors: Art 21 (life and personal liberty), Art 355 (the Union's duty to protect States against internal disturbance), and Art 33 (Parliament's power to modify fundamental rights for the armed forces).
- Naga People's Movement of Human Rights v Union of India (1998): a Constitution Bench upheld AFSPA's validity but laid down safeguards, including periodic review of the disturbed-area status (six-monthly), adherence to the Army's "Dos and Don'ts", and minimum force.
- The Justice Jeevan Reddy Committee (2005) recommended that AFSPA be repealed and its essential powers folded into the Unlawful Activities (Prevention) Act with stronger safeguards. The Second Administrative Reforms Commission broadly agreed.
- The Supreme Court (2016, Manipur extra-judicial killings) held that allegations of fake encounters must be investigated and that the armed forces enjoy no blanket immunity for excesses; the NHRC under the Protection of Human Rights Act, 1993, can recommend on armed-forces complaints but is limited by Section 19 to seeking a report from the Central Government.
- AFSPA has been progressively withdrawn in stages from large parts of the North-East as the security situation has improved; verify the latest map of disturbed areas before the exam.
For retaining AFSPA (the operational case)
- Counter-insurgency soldiers operate in hostile terrain against armed irregulars who do not wear uniforms; without a clear legal shield, an officer hesitates, and hesitation costs lives.
- The immunity is not absolute. It is a sanction requirement, a filter against frivolous and motivated prosecution that would otherwise paralyse operations, not a licence to kill.
- The armed forces themselves argue that a partial or sudden withdrawal in an active theatre creates a vacuum that insurgents exploit.
Against AFSPA in its present form (the rights case)
- The power to use lethal force on the officer's own judgement, beyond ordinary criminal law, risks disproportionate and wrongful killings, and the bar on prosecution can produce a perception of impunity that erodes the rule of law.
- Long, renewable disturbed-area declarations can keep a population under exceptional law for decades, normalising a regime meant to be temporary, the grievance that fed the prolonged protest of the activist Irom Sharmila in Manipur.
- A law that alienates the population it is meant to protect is self-defeating; counter-insurgency is won by consent, and a force seen as immune loses that consent.
The balanced position is neither blanket retention nor abrupt repeal. The defensible course is graduated and accountable: withdraw AFSPA progressively as each district stabilises, exactly as has happened across the North-East; retain only the minimum powers genuinely needed for active theatres; make the disturbed-area review (six-monthly) real rather than a formality; ensure prompt, independent investigation of every alleged excess as the Supreme Court has directed; and build force training around the Army's "Dos and Don'ts" and the principle of minimum force. The test is proportionality and accountability: use no more force than the situation demands, and answer for the force used.
A democracy is judged not by the powers it grants its soldiers but by the accountability it attaches to them. AFSPA was meant to be a temporary instrument for an extraordinary emergency; the danger is that the extraordinary becomes permanent and the safeguards become formalities. The task before the Indian state is to keep the operational shield its forces genuinely need while ensuring that the right to life under Art 21 is never traded away as the price of order.
Thesis to adapt: Security and rights are not opposites; a counter-insurgency that respects the law wins the population, and a force that answers for its actions is stronger, not weaker, than one that hides behind immunity.