In the first part of this two-part series, the author explored the historical geopolitics behind India’s North-East states. In this final part, the author examines how the Armed Forces (Special Powers) Act (AFSPA) originated from the nation’s geopolitical conditions, which date back to colonial rule and have evolved in Independent India. The political will to control these areas and integrate them into a unified nation led to increased insurgency and subsequent violence in the region. – Editors
Violence erupted across Naga territory following the formation of the Federal Government of Nagaland, leaving the state administration unable to control the situation. Consequently, it requested central assistance to combat the insurgency. Due to the Central Government’s longstanding policy differences concerning the North-Eastern States, the Indian Army was deployed to suppress the rebellion and restore order in the region. In response, the then-President of India promulgated the Armed Forces (Assam and Manipur) Special Powers Ordinance on 22 May 1958, granting ‘special powers’ to the armed forces and providing them with a legal framework to operate in the disturbed areas of Assam and the Union Territory of Manipur.
Subsequently, a bill to replace the ordinance was introduced in Parliament on 18 August 1958. During the introduction of the Armed Forces Special Powers Bill, the then Home Minister, Sri G.B. Pant, argued that the bill would enable the armed forces to function effectively in situations marked by arson, looting, and dacoity. The bill faced considerable opposition, with several Members of Parliament arguing that granting sweeping powers to the armed forces would lead to the violation of fundamental rights. They contended that it would allow the Government to bypass constitutional safeguards and enable the armed forces to misuse their powers with impunity. Sri Laishram Achaw Singh, a Member of Parliament from Manipur, described the bill as a ‘lawless law’. Despite opposition leaders’ concerns about the applicability of Section 3 of the Act, the ruling party adeptly explained the clause to secure a majority in the House. The then Home Minister explained the clause ‘in aid of civil power’ under Section 3 as a “very simple measure” aimed at containing the “hostile Nagas” and assured that “no power is transferred from the executive authority”. The Minister of State for Home, Sri B.N. Datar, categorically stated that “civil authority is not abdicated at all, is not abrogated at all”.
During the introduction of the Armed Forces Special Powers Bill, the then Home Minister, Sri G.B. Pant, argued that the bill would enable the armed forces to function effectively in situations marked by arson, looting, and dacoity.
However, the debate in the Rajya Sabha became heated, and members were dissatisfied with the argument that “there is no dispute” regarding the clause “in aid of civil power”. Consequently, the then Law Minister, Sri A.K. Sen, who had a hand in drafting the bill, was called in to clarify that the clause “in aid of civil power” meant supplanting civil power, arguing that when the Governor deems an area disturbed, “the very fact that he forms that opinion shows that the ordinary civil power cannot cope with the situation”.
In the same speech, he asserted that “the forming of opinion (about what to do) regarding certain actions to be taken must necessarily be left to the military officers”. Despite dissent from several parliamentarians, the bill was passed due to the ruling party’s ‘brute majority’. After a seven-hour debate, the bill was approved by both Houses of Parliament. The bill received the President’s assent on 11 September 1958 and became the Armed Forces (Special Powers) Act (AFSPA), 1958, operating retrospectively from 22 May 1958. It has been argued that the AFSPA, 1958 was enacted to grant additional powers to security forces, enabling them to commit extrajudicial actions against a population recently integrated into the Indian mainstream as ‘distinct people’ of NSGT (Non-Self-Governing Territories).
Initially, the Armed Forces (Special Powers) Act, 1958 was applicable only in ‘disturbed areas’ of Assam and the Union Territory of Manipur. However, in 1972, the Act was amended to include the states of Assam, Manipur, Meghalaya, Nagaland, and Tripura, as well as the Union Territory of Arunachal Pradesh. In 1986, the Act was further amended to cover Arunachal Pradesh and Mizoram. In 2015, the Government of Tripura revoked the controversial Act from the state due to waning insurgency. Recently, in April 2018, AFSPA was completely removed from Meghalaya and partially revoked in Arunachal Pradesh, reducing its applicability from sixteen police stations bordering Assam to eight police stations, and Tirap, Changlang, and Longding districts bordering Myanmar. Currently, AFSPA, 1958 is in effect throughout Nagaland, Manipur (excluding Imphal Municipal areas), Assam, and parts of Arunachal Pradesh.
In April 2018, AFSPA was completely removed from Meghalaya and partially revoked in Arunachal Pradesh, reducing its applicability from sixteen police stations bordering Assam to eight police stations, and Tirap, Changlang, and Longding districts bordering Myanmar.
Contours of the Armed Forces (Special Powers) Act, 1958
The AFSPA 1958, with only six sections, operates in the ‘disturbed areas’ of the North-Eastern regions of India. Originally, the power to declare an area as a ‘disturbed area’ was conferred solely upon the State Governments. However, under Act 7 of 1972, this power was also granted to the Central Government. The rationale for conferring this power upon the Central Government, as stated in the ‘Objects and Reasons’ appended to the Bill, was: “The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowers only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or Union Territory as ‘disturbed’. Given the Union’s duty under Article 355 of the Constitution to protect every State against internal disturbance, it is deemed desirable for the Central Government to also have the power to declare areas as ‘disturbed’, thereby enabling its armed forces to exercise special powers.”
The Preamble to the Act as amended reads:
“An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura.”
Under Section 2, the Act defines ‘armed forces’ in clause (a) as the ‘military force and the air force operating as land forces and includes any other armed force of the Union so operating. Therefore, armed forces established and maintained by the Union also fall within this definition. Clause (b) of Section 2 defines ‘disturbed area’ as an area declared by notification under Section 3 to be disturbed.
Clause (c) of Section 2 provides that all words and expressions used in the Act but not defined in it shall have the meanings assigned to them in the Air Force Act, 1950 or the Army Act, 1950.
Power to declare areas as disturbed areas
Section 3 of the Act outlines the process for declaring an area as disturbed, stating that if the Governor of a State, the Administrator of a Union Territory, or the Central Government believes that an area is in such a disturbed or dangerous condition that the use of armed forces is necessary to aid civil power, they may declare the area disturbed by notification in the Official Gazette.
Special powers of the armed forces
Section 4 of the Act grants commissioned officers, warrant officers, non-commissioned officers, or any other person of equivalent rank in the armed forces the power to use force, including causing death, and to arrest without warrant any person they suspect. They may also enter and search without warrant or destroy any premises they believe are sheltering rebels.
Section 4(a) provides that if the officer deems it necessary for maintaining public order, after giving such due warning as they consider necessary, they may use force, including causing death, against anyone contravening laws or temporary orders in the disturbed area prohibiting assembly of five or more persons or carrying weapons. The conditions for exercising this power include the officer’s opinion and due warning.
Section 4(b) allows officers to destroy arms dumps, fortified positions, shelters used for armed attacks, or structures used as training camps or hideouts by armed gangs or absconders. The conditions for exercising this power include the officer’s opinion and necessity.
Subsection (c) grants the armed forces the power to arrest without warrant anyone who has committed or is about to commit a cognizable offence, or against whom reasonable suspicion exists of having committed a cognizable offence, and to use necessary force to effect the arrest. This power also extends to entering and searching premises to recover stolen property, arms, ammunition, or explosive substances.
Persons arrested to be reported to the police
Section 5 stipulates that any person arrested must be handed over to the nearest police station with the least possible delay, defined as within 24 hours. The court must consider the specific circumstances of the case, such as physical impossibility or the manner of arrest, when determining ‘least possible delay’. The Gauhati High Court in Horendi Gogoi has reiterated that if a person is arrested by the armed forces, they must be handed over to the nearest police station with the least possible delay.
The AFSPA has its roots in the geopolitical conditions of the nation, dating back to colonial rule and converging in Independent India.
Immunity of persons acting under the Act
Finally, Section 6 provides immunity to the armed forces operating in disturbed areas. It states: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Armed Forces (Special Powers) Act, 1958.” This denotes the mandatory requirement of obtaining the Central Government’s sanction before initiating any legal proceedings.
Conclusion
The AFSPA has its roots in the geopolitical conditions of the nation, dating back to colonial rule and converging in Independent India. The political will to control the regions and unify the nation led to insurgency and subsequent violence. AFSPA emerged from the Government’s attempt to subdue dissident voices. This legislation, conferring extensive powers to the armed forces, was designed and implemented amidst apprehensions about its vagueness and arbitrary nature and its potential impact on civil society. Questions have also persisted regarding the Act’s conformity with Constitutional guarantees and other statutory provisions.
Concluded
