The men in uniform are required to be equipped with suitable powers to assist the civil administration in areas notified as disturbed or dangerous. The presentation attempts to highlight diverse issues about the competence of the government and constitutionality of the provisions in this regard.

1. A
Presentation
on
Armed Forces (Special Powers) Act, 1958

2. PRESENTATION
BY
MAJ. GEN. NILENDRA KUMAR
DIRECTOR
AMITY LAW SCHOOL, NOIDA
ON
FEBRUARY, 2012

3. Is there any alternative
to
Armed Forces (Special Powers) Act, 1958

4. India attained
its
independence essentially
by
peaceful means
and
non violence

5. It propagated Panch Sheel and the doctrine
of peaceful co-existence.

6. The Indian Constitution is basically federal
in
Form

7. However, the same did not eliminate
unrest, hatred violence and threat to the
sovereignty of the country.

8. RELEVANT CONSTITUTIONAL
PROVISIONS

9. However, not to be forgotten
Article 52 - There shall be a President of
India.
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.

10. EMERGENCY PROVISIONS
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
Constitution.

11. 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
external aggression.

12. SUBJECT MATTER OF LAWS MADE BY
PARLIAMENT AND BY THE STATE
LEGISLATURES

13. Authority over use of the armed forces

14. DIVISION OF RESPONSIBILITY
Seventh Schedule
List 1– Union List
1. Defence of India and every part thereof
including preparation for defence and all
such acts as may be conducive in times
of war to its prosecution and after its
termination to effective demobilisation.
2. Naval, military and air forces, any other
armed forces of the Union.

15. 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.

16. List II – State List
1. Public order (but not including [the use of
any naval, military or air force or any
other armed force of the Union or of any
contingent or unit thereof] in aid of the
civil power).

17. 2. Police (including railway and village
police) subject to the provision of
Entry 2-A of List I.

18. 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
regard.

19. 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
society.

20. 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.

21. The ultimate force available with the
Union is its armed force. Hence,
deployment of the armed forces of the
Union is the final choice.

22. LEGAL DIFFICULTIES
1. The armed forces personnel have no
statutory authority to be deployed or to
act within the country against own
citizens.
2. A State Government has no authority to
directly summon and deploy the military
which is under the executive domain of
the Union.

23. 3. Military personnel need to be suitably
protected for actions taken by them in
discharge of official duties.

24. Hence, the need for the AFSPA

25. Main purpose of AFSPA
1. Declaration about disturbed and
dangerous situation when, by whom and
how.
2. Powers to NCOs and above.
3. Duty of the Armed Forces.
4. Protection given to them.

26. SECTION 3
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

27. 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.

28. SECTION 4
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
area.

29. (a) if he is of opinion that it is necessary so to
do for the maintenance of public order, after
giving such due warning as he may consider
necessary, fire upon or otherwise use force,
even to the causing of death, against any
person who is acting in contravention of any
law or order for the time being in force in the
disturbed area prohibiting the assembly of
five or move persons or the carrying of
weapons or of things capable of being used
as weapons or of fire-arms, ammunition or
explosive substances;

30. (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;

31. (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;

32. (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.

33. SECTION 5
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
arrest.

34. SECTION 6
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.

35. Test of validity
of
AFSPA

36. Naga People’s Movement of Human Rights
V
Union of India; AIR 1998 SC 431

37. DECISION
1. Act is not a colourable legislation or
fraud on the Constitution.
2. Powers under Sections 4 and 5 are not
arbitrary and unreasonable.

38. CRITICISM
1. Retained for decades
2. Draconian powers to military. Use of
force to the extent causing of death.
3. HR violations.
4. Sanctions for prosecution not given.

39. RESTRICTIONS BY SUPREME COURT
1. Periodic review. Not to operate beyond
six months.
2. Orders of Central Government to grant
or withhold sanction to prosecute are
subject to judicial review.
3. Do’s and Don’ts to be strictly followed.
4. Compensatory Justice – compensation
to the victim.

40. Operations by the Troops facilitated
1. Retention of weapons and explosives
captured.
2. Interrogation allowed.

41. Prime Minister’s assurance in December
2006 about changes in the Act.

42. He promised a relook at the Act to see if it
needed to be retained if it could be turned
more humane.

43. Justice Jeevan Reddy Committee Report

44. Its report and recommendations are yet
to be made public.

45. Act has remained in the Statute Book for
last
five decades. Both during Congress and
non Congress Governments.

46. There is no option but to retain the AFSPA

47. A way forward is to humanise AFSPA by
framing of Rules and executive steps.

48. EXECUTIVE MEASURES

49. HOW TO HUMANISE
Use the tool of court of inquiry for prompt and
transparent investigations
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.

50. Video tape all military missions to achieve
greater transparency and accountability.

51. Incentives/awards for capturing militants
alive. Hopefully, this may cut down
number of those killed.

52. ALLEGATIONS OF FALSE ENCOUNTERS
AND FORCED DISAPPEARANCE
Allow local NGOs to lodge complaints

53. A civil magistrate to accompany each
contingent of Army. If not feasible,
record reasons. This would bring in
transparency and independent check

54. Decision to accord or deny sanction in three
months.

55. PROTECTION OF HUMAN RIGHTS ACT
NHRC may be allowed to refer and seek
reports.

56. All complaints against Army personnel
pending in police stations should be
thoroughly probed in a time bound
manner.

57. Due publicity of cases where disciplinary
actions have been taken against military
personnel for human rights personnel.

58. Frame clear guidelines to lay down policy
about according/denial of sanction for
prosecution under Section 6.

59. AFSPA has no provisions relating to rule
making powers.

60. Recommended
Framing of Rules

61. RULES TO LAY DOWN
1. Definition of armed forces.
2. Difference between ‘disturbed’ and
‘dangerous’ situations.
3. Threshold level for above.
4. Warning before opening fire – Language,
duration, means and caution.
5. Recording of the opinion of the officer of
the designated category.

62. NEED OF THE HOUR
Urgent discussion on steps to change
working of AFSPA would be a pragmatic
move in resolving an issue of major
national concern.

63. THANKS