A Presentation on Armed Forces (Special Powers) Act, 1958. PRESENTATION BY MAJ. GEN. NILENDRA KUMAR DIRECTOR AMITY LAW SCHOOL, NOIDA ON FEBRUARY, 2012. Is there any alternative to Armed Forces (Special Powers) Act, 1958. India attained its independence essentially by
Armed Forces (Special Powers) Act, 1958
MAJ. GEN. NILENDRA KUMAR
AMITY LAW SCHOOL, NOIDA
Is there any alternative
Armed Forces (Special Powers) Act, 1958
It propagated Panch Sheel and the doctrine
of peaceful co-existence.
The Indian Constitution is basically federal in
However, the same did not eliminate
unrest, hatred violence and threat to the
sovereignty of the country.
RELEVANT CONSTITUTIONAL PROVISIONS
However, not to be forgotten
Article 52 - There shall be a President of
53(2) – The Supreme Command of the
Defence Forces of the Union shall be vested
in the President and the exercise thereof
shall be regulated by law.
Article 355. Duty of the Union. It shall be
the duty of the Union to protect every State
against external aggression and internal
disturbance and to ensure that the
Government of every State is carried on in
accordance with the provisions of this
Article 352 relates to the power of the
President to make a proclamation of
emergency if he is satisfied that the
security of India is threatened by war or
SUBJECT MATTER OF LAWS MADE BY
PARLIAMENT AND BY THE STATE
Authority over use of the armed forces
List 1– Union List
2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.
List II – State List
2. Police (including railway and village
police) subject to the provision of Entry 2-A of List I.
Thus it would be significant to note
the duty of the Union in the matters of
national security and the clear cut
demarcation in the powers of the
Parliament and State Legislatures in this
Having regard to the pluralistic nature of
Indian polity; multiplicity of religions &
languages, ethnic divisions and lack of
accommodation in political thoughts,
economic disparities and geographical
imbalances may at times give rise to
unresolved aspirations. Further, the
State may fail to bring about peaceful
and orderly settlement amongst the
A failure of the State administration to
maintain law and order may develop into
a situation, being ‘disturbed’ and
‘dangerous’, where the police and other
agencies available are not able to control
the extraordinary situation.
The ultimate force available with the
Union is its armed force. Hence,
deployment of the armed forces of the
Union is the final choice.
3. Military personnel need to be suitably protected for actions taken by them in discharge of official duties.
Hence, the need for the AFSPA
Main purpose of AFSPA
Powers to declare areas to be disturbed
areas – If, in relation to any state or Union
Territory to which this act extends, the
Governor of that State or the administrator of
that Union Territory or the Central
Government, in either case, if of the opinion
that the whole or any part of such State of
Union territory, as the case may be, is in such
a disturbed or dangerous condition that
the use of armed forces in aid of the civil
power is necessary, the Governor of that
State or the Administrator of that Union
Territory or the Central Government, as
the case may be , may by notification in
the Official Gazette,declare the whole or
such part of such State or Union territory
to be a disturbed area.
Special Powers of the armed forces
– Any commissioned officer, warrant
officer, non-commissioned officer or
any other person of equivalent rank in
The armed forces may, in a disturbed
(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;
(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;
(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.
Arrested persons to be made over to
the police –Any person arrested and
taken into custody under this Act shall be
made over to the officer in charge of
the nearest police station with the least
possible delay, together with a report
of the circumstances occasioning the
Protection to persons acting under Act –
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 this Act.
Test of validity
Naga People’s Movement of Human Rights
Union of India; AIR 1998 SC 431
Operations by the Troops facilitated
Prime Minister’s assurance in December
2006 about changes in the Act.
He promised a relook at the Act to see if it
needed to be retained if it could be turned
Justice Jeevan Reddy Committee Report
Its report and recommendations are yet
to be made public.
Act has remained in the Statute Book for last
five decades. Both during Congress and
non Congress Governments.
There is no option but to retain the AFSPA
A way forward is to humanise AFSPA by
framing of Rules and executive steps.
Use the tool of court of inquiry for prompt and
1. Obligatory to convene inquiry in all cases of civil deaths, grievous injury or allegations sexual harassment etc. Do so within 72 hours.
2. Co-opt a civil official.
3. Woman officer to be a member/in attendance.
4. Venue to be easily accessible to local public.
Video tape all military missions to achieve
greater transparency and accountability.
Incentives/awards for capturing militants
alive. Hopefully, this may cut down
number of those killed.
ALLEGATIONS OF FALSE ENCOUNTERS
AND FORCED DISAPPEARANCE
Allow local NGOs to lodge complaints
A civil magistrate to accompany each
contingent of Army. If not feasible,
record reasons. This would bring in
transparency and independent check
Decision to accord or deny sanction in three
PROTECTION OF HUMAN RIGHTS ACT
NHRC may be allowed to refer and seek
All complaints against Army personnel
pending in police stations should be
thoroughly probed in a time bound
Due publicity of cases where disciplinary
actions have been taken against military
personnel for human rights personnel.
Frame clear guidelines to lay down policy
about according/denial of sanction for
prosecution under Section 6.
AFSPA has no provisions relating to rule
Framing of Rules
NEED OF THE HOUR
Urgent discussion on steps to change
working of AFSPA would be a pragmatic
move in resolving an issue of major