IFTHEARMEDFORCESALSO

FAILTHEREWILLBENO
INDIA
 THE LAST RESORT
IFTHEINDIANARMYFAILS----

THEREISNOOTHERFORCELEFTWITH
THENATION
 PREVIEW

GENESIS
AFSPA : POST INDEPENDENCE STATUS
AFPSA AND CONSTITUTIONAL PROVISIONS
WHAT IS A 'DISTURBED' AREA ?
AFSPA MAIN INGREDIENTS
WHY IS AFSPA CONSIDERED DRACONIAN?
AFPSA :INTERNATIONAL AND NATIONAL VIEWPOINT
SUPREME COURT JUDGEMENTS AND VIEWS
CONCLUSION
 GENESIS

TheArmedForcesSpecialPowersOrdinanceof1942waspromulgatedbytheBritishon15
August1942tosuppressthe'QuitIndiamovement'.

Later,modeledontheselines,fourordinanceswereinvokedbytheCentralGovernmentto
dealwiththeinternalsecuritysituationinthecountryin1947whicharoseoutofthepartition
ofIndia.

*theBengalDisturbedAreas(SpecialPowersofArmedForces)Ordinance.
*
theAssamDisturbedAreas(SpecialPowersofArmedForces)Ordinance.

*theEastBengalDisturbedAreas(SpecialPowersofArmedForces)Ordinance.

*theUnitedProvincesDisturbedAreas(SpecialPowersofArmedForces)Ordinance.
 POST INDEPENDENCE
Later,anordinanceentitledtheArmedforces(AssamandManipur)SpecialPowers
Ordinance,1958,waspromulgatedbythePresidentonthe22ndMay,1958.

Section3oftheOrdinancepoweredtheGovernor of Assam andtheChief Commissioner

ofManipurtodeclarethewholeoranypartofAssamortheUnionterritoryofManipur,asthe
casemaybe,tobeadisturbedarea.
TheArmedForces(SpecialPowers)BillwaslaterpassedbyboththeHousesofParliament
anditreceivedtheassentofthePresidenton11thSeptember,1958 .

It came on the Statute Book as THE ARMED FORCES (SPECIAL POWERS) ACT, 1958

Contd --
 POST INDEPENDENCE
Asmentioned,TheArmedForces(SpecialPowers)Actof1958
(AFSPA)wasadoptedbytheIndianParliament59yearsagoasan
emergencymeasuregrantingspecialpowerstotheIndianArmed
Forcesforuseinanareathathasbeendeclareddisturbed.

ItwasfirstappliedtotheSevenSisterStatesofNorthEastIndia,
includingAssam,Manipur,Tripura,Meghalaya,ArunachalPradesh,
MizoramandNagaland,on1September,1958,tostoptheNorth
EasternStatessecedingfromtheIndianUnion.

LaterPunjabandChandigarhalsocamewithinthepurviewofthisact,
whichwaslater withdrawn in 1997.

AFSPAwasappliedtothestateofJammuandKashmirin1990andhas
beeninforcesince.
 AFSPA STATUS AS ON 08 MAY 2017
Assam -ExceptGuwahatimunicipalarea,AFSPAisinforceinwholestate.

Meghalaya-BoundaryareaofMeghalayawithAssamin20kmbeltunderAFPSA.

Arunachal Pradesh-Onlythreedistricts-Tirap,Changlang,Longdingand20km
borderareawithAssamareunderAFSPA.

NAGALAND - InitiallypartofAssam,cameinexistencein1961.WholeofNagastate
currentlyunderAFSPA.

MANIPUR- ExceptImphal,wholeManipurstateunderAFSPA.

JAMMU & KASHMIR- AFSPAactivesince1990.

(Note : InTripuraAFSPAwasimplementedin1997andwithdrawnin2015)
 AFPSA
AND ARTICLE355
In the case of AFSPA (Manipur and Assam) 1958, the Government of
India had used Article 355 of the Constitution to confer power in
the hands of Governors.

------The Article entrusts duty upon Union to protect the States against
external aggression and internal disturbance to ensure that
the government of every State is carried on in accordance with the
provisions of Constitution.
PROCLAMATION OF EMERGENCY
ARTICLE 352
*Before the 44th amendment to the Constitution of India, the following were the
grounds under which the President could proclaim emergency.
War
External Aggression
Internal Disturbance

* After the 44th amendment the following are the grounds under with a National
Emergency can be proclaimed by the President.
War
External Aggression
Armed Rebellion
 ARTICLE 352
Internal disturbance not amounting toarmedrebellionis not a
ground for the issue of a proclamation of emergency any more.

A provision was included stating that the President will only issue
a Proclamation of Emergency if the decision of the Union Cabinet
has to been communicated to him in writing.

Proclamation of Emergency has to be approved within a period

of one month (instead of two months) by resolutions of both
Houses of Parliament and has to be passed by a majority of the
total membership of each house and by a majority of not less
than two-thirds of the members present and voting in each House
 HABEAS CORPUS, EMERGENCY
POWERS AND AFSPA
Habeascorpuscaseshavebeentheonlyremedyavailablefor
thosearrestedundertheAFSPA.AHabeasCorpuscaseforces
themilitaryorpolicetohandthepersonovertothecourt.
Article358isapplicableonlyincaseofexternalemergencyand
automaticallysuspendsrightsunderArticle19.
Article359isapplicableforbothinternalandexternal
emergencyanddoesn'tsuspendFundamentalRights(except
Articles20and21)butonlytheirenforceability.
However,Section4ofAFSPAimpingesonFundamentalRights
toprotecttheintegrityoftheNation.
 WHO CAN INVOKE AFSPA ??
IntheoriginalversionoftheArmedForcesSpecialPowersActof1958,only
theState Governmentshadthepowertodeclareanareaasdisturbed.This
wasconsistentwithArticle246oftheConstitutionofIndiatobereadwiththe
7thScheduleoftheConstitutionofIndiawhichplaceslawandorderunder
theStateslist.

The1972amendmentstotheAFSPAtookawaythepowerfromtheState
GovernmentanditsLegislativeAssemblyandhandeditovertoanappointee
oftheCentralGovernment.

Contd--
 WHO CAN INVOKE AFSPA ??
ThevaguenessofthisdefinitionwaschallengedinIndrajit Barua v. State of Assam
case(AIR1983Del513).Thecourtdecidedthatthelackofprecisiontothedefinitionofa
disturbedareawasnotanissuebecausetheGovernmentandpeopleofIndiaunderstand
itsmeaning.However,sincethedeclarationdependsonthesatisfactionofthe
Governmentofficial,itisnotsubjecttojudicialreview.

TheDisturbedAreas(SpecialCourts)Act,1976,however,providesacleardefinition----'
anareamaybedeclareddisturbedwhen"aStateGovernmentissatisfiedthatthereis,in
anyareawithinaState,extensivedisturbanceofthepublicpeaceandtranquility,by
reasonofdifferencesordisputesbetweenmembersofdifferentreligions,racial,
language,orregionalgroupsorcastesorcommunities---itmaydeclaresuchareatobea
disturbedarea."
 WHEN IS AN AREA DEEMED 'DISTURBED' ??

TheStateorCentralGovernmenthastherighttopronounceanarea
disturbedbyreasonofdifferencesordisputesbetweenmembers
ofdifferentreligious,racial,languageorregionalgroupsorcastes
orcommunities.

FailureoftheStateadministrationtomaintainlawandordermay
developintoasituation,beingdisturbedanddangerous, where
thepoliceandotheragenciesavailablearenotabletocontrolthe
extraordinarysituation.
 HOW IS AN AREA DECLARED AS
"DISTURBED"

The State or the Central Government has the

powertodemarcateanareaintheIndianUnionas
disturbed.
ButunderSection(3)oftheAct,theopinionofthe
State Government as to whether or not an area is
disturbedcanbeoverruledbytheGovernororthe
Center.

Once declared disturbed, the region has to

maintain status quo for a minimum of three
months,accordingtoTheDisturbedAreas(Special
Courts)Act,1976.
 J & K DISTURBED AREAS ACT
AND AFSPA
The Act was born during Governors Rule in 1990 as Governors Act No. 12. In 1992,
it was replaced by the J&K Disturbed Areas Act.

In 1997, when Farooq Abdullah was chief minister, the legislative Assembly ratified
the law for one year. But in October 1998, it was allowed to lapse in response to a
huge wave of resentment against the misuse of its draconian provisions.

DAA for J&K lapsed in 1998.

The J&K government has two ways to declare an area disturbed. It could enact the
DAA, or it could issue a notification under Section 3 of AFSPA.
 WHY INVOKE AFPSA
TheConstitutionofIndiaempowersStateGovernmentstodeclareastateofemergencyduetooneor
moreofthefollowingreasons:

Failureoftheadministrationandthelocalpolicetotacklelocalissues.
Thescaleofunrestorinstabilityinthestateistoolargeforlocalforcesto
handle.

Insuchcases,itistheprerogativeofthestategovernmenttocallforcentral
help.Inmostcases,forexampleduringelections,whenthelocalpolicemay
bestretchedtoothintosimultaneouslyhandleday-to-daytasks,thecentral
governmentobligesbysendingintheBSF,ITBPandtheCRPF.Suchcases
donotcomeunderthepurviewofAFSPA.
 AFSPA is confined to be enacted only when a state, or part
of it, is declared a 'disturbed area'.

Continued unrest, like in the cases of militancy and

insurgency, and especially when borders are threatened,
are situations where AFSPA is resorted to.
 BUT REMEMBER---
Thearmedforcespersonnelhavenostatutoryauthoritytobe
deployedortoactwithinthecountryagainstowncitizens.

AStateGovernmenthasnoauthoritytodirectlysummonand
deploythemilitarywhichisundertheexecutivedomainofthe
Union
Militarypersonnelneedtobesuitablyprotectedfor
actionstakenbythemindischargeofofficialduties

Military personnel need to be suitably protected for actions

taken by them in discharge of official duties
 AFPSA MAIN INGREDIENTS

Declarationaboutdisturbedanddangeroussituationwhen,by
whomandhow.

.PowerstoNCOsandabove.

.DutyoftheArmedForces.

.Protectiongiventothem.
 SECTION 3
(POWERS TO DECLARE AREAS TO BE DISTURBED AREAS )

TheGovernorofthatStateortheadministrator
ofthatUnionTerritoryortheCentralGovernment,
ifoftheopinionthatthewholeoranypartofsuch
StateofUnionterritory,asthecasemaybe,isin
suchadisturbedordangerousconditionthatthe
useofarmedforcesinaidofthecivilpoweris
necessary,theGovernor,Administratororthe
CentralGovernment,maybynotificationinthe
OfficialGazette,declarethewholeorsuchpartof
suchStateorUnionterritorytobeadisturbed
 SECTION 4
(SPECIAL POWERS OF ARMED FORCES)
Anycommissionedofficer,warrantofficer,non-commissionedofficeroranyotherpersonof
equivalentrankintheArmedForcesmay,in a disturbed area --

Aftergivingsuchduewarning,Fireuponoruseotherkindsofforceevenifitcausesdeath,againsttheperson
whoisactingagainstlawororderinthedisturbedareaforthemaintenanceofpublicorder,

Destroyanyarmsdump,hide-outs,preparedorfortifiedpositionorshelterortrainingcampfromwhicharmed
attacksaremadebythearmedvolunteersorarmedgangsorabsconderswantedforanyoffence.

Toarrestwithoutawarrantanyonewhohascommittedcognizableoffencesorisreasonablysuspectedofhaving
donesoandmayuseforceifneededforthearrest.

Toenterandsearchanypremiseinordertomakesucharrests,ortorecoveranypersonwrongfullyrestrainedor
anyarms,ammunitionorexplosivesubstancesandseizeit.
 SECTION 5

Any person arrested and taken into custody under this

Act shall be made present over to the officer in charge
of the nearest police station with least possible delay,
together with a report of the circumstances
occasioning the arrest.
 SECTION 6

Army personnel have legal immunity for their actions. There can
be no prosecution, suit or any other legal proceeding against
anyone acting under that law. Nor is the government's judgment
on why an area is found to be disturbed subject to judicial review.

Protection of persons acting in good faith under this Act from

prosecution, suit or other legal proceedings, except with the
sanction of the Central Government, in exercise of the powers
conferred by this Act.
 WHY IS AFPSA CONSIDERED
DRACONIAN
TheArmedForcesSpecialPowersActcontravenesbothIndian
andInternationallawstandards.
Violatestherightstolife(Article21)
Violatestherighttobeprotectedfromarbitraryarrest(Article22)
Violatestherighttobefreefromtortureandotherill-treatment

-----HumanRightsWatchsays,''Theprovisionsprotectingsoldiersfrom
prosecutiondenyvictimsofabusestherighttoaremedybecauseitforbids
prosecutionofsoldierswithoutapprovalfromtheCentralGovernment''
 INTERNATIONAL STANDING

TheAFSPA,byitsformandinitsapplication,violatestheUniversalDeclarationofHumanRights(the"UDHR"),
theInternationalCovenantonCivilandPoliticalRights(the"ICCPR"),theConventionAgainstTorture,theUN
CodeofConductforLawEnforcementOfficials,theUNBodyofPrinciplesforProtectionofAllPersonsUnderany
formofDetention,andtheUNPrinciplesonEffectivePreventionandInvestigationofExtra-legalandsummary
executions.

TheUNSpecialRapporteuronExtrajudicial,SummaryorArbitraryExecutions,ChristofHeyns,onMarch30,
2012,alsocalledfortherepealofAFSPA,sayingthat:AFSPAallowsthestatetooverride
rights.Suchalawhasnoroleinademocracyandshouldbescrapped.

Noarbitraryarrest
EqualDignityandrights
Non-discrimination
Life,liberty,securityofpersonnotorture
Equalitybeforethelaw
Property
 WHY SINGLE OUT INDIA ??
The doctrine is by no means unique to India.

Countries like Canada, United States and the United

Kingdom also have some versions of that doctrine.

The British armed forces presence in Northern Ireland is an apt

comparison to the Indian military presence in the North East. The British
carry out arrests under the Northern Ireland (Emergency Provisions) Act
or the Prevention of Terrorism (Temporary Provisions) Act.
 THE PATRIOT ACT - USA
The Patriot Act defines "domestic terrorism" as activities within the
United States that . . . involve acts dangerous to human life that. . .
appear to be intended--
to intimidate or coerce a civilian population;
to influence the policy of a government by intimidation or coercion; or
to affect the conduct of a government by mass destruction,
assassination, or kidnapping. . . .

(The Fourth Amendment to the U.S. Constitution protects the "right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . .)
 NATIONAL STANDING
During the past couple of years, there have been widespread anti-AFSPA protests in Kashmir
following the murder of civilians in fake encounters.

In 2004, emotions against the AFSPA exploded in the Northeast Indian state of Manipur after the
abduction, suspected rapeand killing of a woman, Thangjam Manorama, by security forces.

Adverse publicity and indefinite fast undertaken by Irom Sharmila.

The then chief minister of J&K, Omar Abdullah, demanded the removal of the AFSPA from certain
areas of the state. The indication, according to media reports, is the districts of Srinagar, Budgam,
Jammu and Samba .

In response to those public protests, the Indian government appointed a committee to review AFSPA
1958, headed by a former Supreme Court Judge, B.P.Jeevan Reddy.

(''Citizens may not be able to resist the power of the Indian State, but resent itthey
can'')
 JEEVAN REDDY COMMITTEE
REPORT
In response, in late 2004, the UPA-1 government, under the Ministry
of Home Affairs set up a Committee under a retired judge of the
Supreme Court, BP Jeevan Reddy with four members, Dr SB Nakade,
former Vice Chancellor and Jurist, P Srivastav, a former special
secretary with the MHA, VR Raghavan, former Lieutenant General
with the Indian Army and Sanjoy Hazarika, senior journalist.
The BP Jeevan Reddy Committee recommended that it be repealed on
the grounds that: The act is too sketchy, too bald and quite
inadequate in several particulars. Its finding was that the Act has
become a symbol of oppression, an object of hate and an instrument
of discrimination and high handedness. But it made a constructive
suggestion that the main, if diluted, provisions be retained by
incorporation into the Unlawful Activities Prevention Act (UAPA).
 RESTRICTIONS BY SUPREME COURT

TheSupremeCourtsverdictin1988inthematterofNagaPeoples
MovementofHumanRightsvs.UnionofIndiawasessentiallythatParliament
wascompetenttoenactthecentralAct---

OrdersofCentralGovernmenttograntorwithholdsanctiontoprosecute
aresubjecttojudicialreview.
DosandDontstobestrictlyfollowed.
CompensatoryJusticecompensationtothevictim
Periodicreview.Nottooperatebeyondsixmonths.
 AFPSA : 2016 SUPREME COURT
JUDGEMENT

In July 2016, a bench comprising justices Madan B.

Lokur and U.U. Lalit had ruled that every allegation of
use of excessive force that results in death of an
individual by the armed forces or state police in Manipur
must be looked into.

The court made registration of a first information report

(FIR) mandatory in such cases.
 THE SUPREME COURT AND THE AFSPA
CURRENT SITUATION
In April 2017, the Apex Court rejected a curative petition filed by the Government
seeking to review the courts 2016 verdict that mandates a compulsory police
inquiry of suspected extra-judicial killings by the Armed Forces in areas under the
AFSPA.

The Centre pleaded that theCourts verdict is hampering the Armys ability to
respond to insurgency-related situations and its daily operations in Kashmir and the
Northeast, both regions torn by militancy.

A curative petition, as we know, was the last legal recourse available after a litigant
exhausts all remedies such as appeals and review pleas.

The Apex Court is also currently monitoring the probe in the 1,528 cases of alleged
extra judicial killings.
 RECOMMENDATIONS YOU
DECIDE
The AFSPA must comply with International law and Indian law standards. YES/NO

This means the powers to shoot to kill under section 4(a) must be unequivocally revoked. YES/NO

Arrests must be made with warrants and no force should be allowed in the search and seizure procedures.
YES/NO

Section 5 should clearly state that persons arrested under the Act are to be handed over to the police within
twenty-four hours. YES/NO

Section 6 should be completely repealed so that individuals who suffer abuses at the hands of the security forces
may prosecute their abusers. YES/NO

Contd---
 RECOMMENDATIONS YOU
DECIDE
The declaration that an area is disturbed should not be left to the subjective
opinion of the Central or State Government. It should have an objective standard
which is judicially reviewable. YES/NO
The declaration that an area is disturbed should be for a specified amount of time,
no longer than six months. Such a declaration should not persist without
legislative review. YES/NO
Armed forces should not be allowed to arrest or carry out any procedure on
suspicion alone. All their actions should have an objective basis so that they are
judicially reviewable. YES/NO
All personnel acting in a law enforcement capacity should be trained according to
the UN Code of Conduct for law enforcement personnel. YES/NO
Complete transparency should be established so that a public accountability is
rendered possible. YES/NO
AT TIMES THE WAY IT IS APPLIED MAY
BE WRONG, BUT INDIA'S ARMED
FORCES NEED THE AFSPA
 TO SUM UP--
Reasons For Imposition Of AFPSA
Powers Of State And Central Government For Invoking
AFSPA
What Is A Disturbed Area
Constitutional Provisions And AFPSA
Salient Sections Of AFPSA
The Argument : For And Against
The Final Vote
For those who have fought for it,
freedom has a flavour,
The protected will never know

THE END