Armed Forces Special Powers Act

The Armed Forces (Special Powers) Act, 1958 (AFSPA) confers special powers on members of the armed forces operating in areas declared as 'disturbed' by the Central or State Government. Originally enacted for the Northeastern states of Assam and Manipur, its scope was extended to other Northeastern states, and a separate AFSPA was enacted for Jammu and Kashmir in 1990. AFSPA has been one of the most controversial statutes in Indian law — supported by the armed forces as essential for counter-insurgency operations and condemned by civil society and human rights organisations as enabling grave human rights violations with impunity.

Section 3 of the AFSPA authorises the Central Government or the Governor of a state to declare an area as 'disturbed' if they are of the opinion that the area is in a dangerous or disturbed condition making the use of armed forces in aid of civil power necessary. Once declared disturbed, Section 4 confers sweeping powers on commissioned officers, warrant officers, and non-commissioned officers of the armed forces in that area: the power to use force (even lethal force) against any person acting in contravention of law or order; the power to arrest without warrant; the power to enter and search premises without warrant; and the power to seize property.

Section 6's immunity from prosecution — the requirement of prior Central Government sanction — has been the most challenged aspect of the AFSPA. In the Extra Judicial Execution Victim Families Association (EEVFAM) case, the Supreme Court addressed the question of whether armed forces personnel could be prosecuted for alleged fake encounters in Manipur under AFSPA. The Court held that even in disturbed areas, the armed forces do not have unbridled power to kill — excessive or disproportionate use of force is not protected by AFSPA. Victims' families have a right to seek investigation and prosecution, and the requirement of Central Government sanction does not bar judicial scrutiny of whether the act was done in 'good faith.'

The demand for AFSPA's repeal has been a long-standing political and human rights issue in Northeastern India and Jammu and Kashmir. The Jeevan Reddy Committee (2005) recommended repeal of the Act. Successive governments have defended the Act as necessary for security operations in insurgency-affected areas. Partial withdrawal of AFSPA from specific districts has occurred — in Meghalaya, Tripura, and parts of Nagaland — as security situations improved. The Act continues to apply in Manipur, Nagaland, and parts of Assam, and in Jammu and Kashmir under the separate 1990 Act.

For advocates working on AFSPA-related matters, the available remedies are: (1) habeas corpus petitions for persons detained under AFSPA; (2) writ petitions challenging the declaration of an area as 'disturbed'; (3) compelling FIR registration and investigation for alleged excesses (EEVFAM recognised this right); and (4) filing complaints before the National Human Rights Commission, which has jurisdiction to investigate complaints against the armed forces (though implementation remains contested). The Central Government sanction requirement is a significant practical hurdle to prosecution but is not an absolute bar to investigation and judicial scrutiny.