In this short article we will discuss about the history of India's one of the most debatable law namely Armed Forces (Special Power) Act, 1958 (AFSPA), reasons behind for enactment of this Act in Indian states specially northestern states after that impact of this Act in India's northestern region.

Apart from that we will analyse some cases where AFSPA and human right conflicted with each other with some landmark judgements which delivered by the honourable Supreme Court India and honourable High Court of Manipur, why this Act is so important for the Indian territories and at the end disadvantages of the Act.

Introduction
The Armed Forces (Special Powers) Act (AFSPA) is enacted by the Parliament of India on 11th September, 1958. That Act grants special powers to the armed forces in designated "disturbed areas" to help maintain public order. It was also commenced in 11th September, 1958 and initially applied to the north eastern states of India which are known as seven sister states. Later, it was extended to Jammu and Kashmir.[1]

The primary objective of the AFSPA is to empower the armed forces to strongly deal with armed insurgency, terrorism, and other threats to national security in areas facing crucial internal disturbances.[2] The act confers certain powers upon the armed forces, such as the authority to arrest without warrant, to search premises, and to use force, including fatal force, if deemed compulsory for the maintenance of public order[3]. Under the AFSPA, the armed forces have immunity from prosecution for their actions taken in the line of duty, unless prior sanction is permitted by the central government. This provision has been a subject of criticism and dissention, with concerns raised about human rights abuses and violations.

The AFSPA has been a topic of debate, and its execution has been contentious. Critics argue that the act has been misapplied and has led to human rights violations, including extrajudicial killings, torture, and disappearances. They argue that the act provides imprudent powers to the armed forces, leading to a paucity of accountability and undermining the rule of law. Supporters of the AFSPA argue that it is necessary to combat insurgency and maintain public order in areas facing significant security challenges. They contend that the act provides essential legal protection to the armed forces operating in complex and dangerous situations.

The AFSPA is a specific law in India, and other countries may have similar or different legislation governing the powers and operations of their armed forces.

The history of the Armed Forces (Special Powers) Act (AFSPA) in India dates back to the 1950s, when several northeastern states were facing armed insurgencies and internal disturbances. Here is a brief timeline of the AFSPA's history:

After India gained independence in 1947, various northeastern states experienced armed insurgencies and conflicts. In 1952, the Naga National Council (NNC) launched an armed struggle for secession from India, leading to shoot up violence and unrest. In retaliation to the escalating insurgency in the northeastern region, the Indian government enacted the Armed Forces (Assam and Manipur) Special Powers Ordinance in May 1958. This legislation granted special powers to the armed forces deployed in the disturbed areas.

The ordinance was replaced by the Armed Forces (Assam and Manipur) Special Powers Act in September 1958. It conferred wide-ranging powers to the armed forces, including the authority to arrest without warrant and to use force, including lethal force, if necessary for the maintenance of public order. The AFSPA was subsequently extended to other northeastern states facing similar security challenges. In 1972 The AFSPA was repealed in Meghalaya and Tripura by reason of improved security conditions in these states.

The AFSPA remained in force in several northeastern states as insurgencies continued to pose a challenge to the region's stability. Between the periods of 1972-1980s, there were numerous reports of human rights exploits and allegations of excesses by the armed forces.

The AFSPA was extended to the state of Jammu and Kashmir, which was grappling with a surge in militancy and terrorism. The armed forces were granted similar powers to those conferred in the northeastern states in 1990. The Justice Jeevan Reddy Committee was formed to review the AFSPA. The committee recommended the repeal of the act, terming it "draconian" and stating that it had become "a symbol of oppression."

The Supreme Court of India directed the central government to probe all allegations of extrajudicial killings and fake encounters in Manipur and other northeastern states on 2015[4] The court expressed concerns about the excessive use of force under the AFSPA.

In 2020, The AFSPA remained in force in various parts of northeastern India and Jammu and Kashmir, although there were ongoing calls for its repeal or amendment to address concerns about human rights abuses.

There have been several important case law and legal judgments in India relating to the Armed Forces (Special Powers) Act (AFSPA). These cases have addressed various aspects of the act, including its constitutionality, the scope of its powers, and allegations of human rights violations.

Here are some significant cases:

1. In the Naga People's Movement of Human Rights v. Union of India (1998)[5]:
   The Supreme Court of India examined the constitutionality of the AFSPA in this case. The court upheld the validity of the act but emphasized the need for accountability and respect for human rights. It held that excessive and arbitrary use of force would be violative of Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty.
    
2. People's Union for Civil Liberties v. Union of India (1997)[6]:
   In this case, the Supreme Court of India dealt with allegations of human rights abuses under the AFSPA in the state of Manipur. The court directed the central government to set up a commission to inquire into allegations of human rights violations, including extrajudicial killings. It emphasized the importance of maintaining law and order while respecting human rights.
    
3. Naga People's Movement of Human Rights v. Union of India (2010)[7]:
   This case pertained to the alleged rape and murder of a woman by army personnel in Manipur. The Supreme Court ordered a Special Investigation Team (SIT) to probe the incident, highlighting the need for a fair investigation and accountability in cases involving the armed forces.
    
4. Extra Judicial Execution Victim Families Association v. Union of India (2012)[8]:
   The Supreme Court of India examined several cases of alleged extrajudicial killings in Manipur and issued guidelines to be followed during encounters or situations involving the use of force. The court stressed that an encounter must be thoroughly investigated to ascertain whether it was genuine or staged.
    
5. Human Rights Alert v. State of Manipur (2013)[9]:
   This case focused on the killing of a former militant by security forces in Manipur. The Supreme Court emphasized the importance of following proper procedures and conducting prompt and impartial investigations into incidents involving the use of force.

The Armed Forces (Special Powers) Act (AFSPA) is considered important by its proponents for several reasons:

1. Combating Insurgency and Terrorism:
   The AFSPA is seen as a crucial tool in dealing with armed insurgencies, terrorism, and internal disturbances in areas facing significant security challenges. It grants special powers to the armed forces to effectively counter such threats and maintain public order.
    
2. Enabling Quick Response:
   The AFSPA provides the armed forces with powers such as arrest without warrant and search premises, which enable them to swiftly respond to situations and take necessary action to prevent violence and maintain stability.
    
3. Protecting Armed Forces: The AFSPA grants legal protection to the armed forces by providing them with immunity from prosecution for their actions taken in the line of duty unless prior sanction is granted by the central government. This is seen as important for ensuring that soldiers can perform their duties without fear of legal repercussions.
    
4. Deterrence and Prevention:
   The presence of the AFSPA and its provisions is believed to act as a deterrent against potential acts of violence and insurgency. The act's powers, including the use of force if necessary, are seen as crucial in preventing and countering threats to national security.
    
5. Ensuring Operational Flexibility:
   The AFSPA is considered important for providing the armed forces with the necessary authority and flexibility to operate in challenging and hostile environments. It allows them to adapt their strategies and tactics to counter evolving security threats effectively.

The Armed Forces (Special Powers) Act (AFSPA) has been subject to criticism and concerns due to its potential disadvantages and implications.
Here are some of the commonly raised disadvantages associated with the AFSPA:

1. Human Rights Concerns:
   One of the primary criticisms of the AFSPA is that it grants broad powers to the armed forces, including the use of lethal force, leading to alleged human rights abuses. There have been reports of extrajudicial killings, torture, rape, and other forms of violence attributed to the armed forces operating under the act. Critics argue that the act can lead to a lack of accountability and impunity for such violations.
    
2. Lack of Judicial Oversight:
   Under the AFSPA, the armed forces have immunity from prosecution unless prior sanction is granted by the central government. This provision limits the scope of independent judicial scrutiny and can hinder the accountability of security personnel accused of human rights violations.
    
3. Erosion of Civil Liberties:
   The AFSPA empowers the armed forces with wide-ranging powers, such as arrest without warrant and search and seizure operations, which can infringe upon the civil liberties of the civilian population. Critics argue that the act compromises individual freedoms and undermines the principles of due process and rule of law.
    
4. Effect on Civil-Military Relations:
   The presence of the AFSPA and its powers can strain the relationship between the civilian population and the armed forces. The perception of the armed forces as an occupying force with extensive powers can lead to distrust and alienation among the local population, which can further exacerbate conflicts and hamper the process of reconciliation.
    
5. Impediment to Conflict Resolution:
   Critics argue that the AFSPA, with its emphasis on a militarized approach, can hinder the prospects of a peaceful resolution to conflicts. The act's focus on a security-centric response may overshadow the need for addressing underlying political, socio-economic, and governance issues that contribute to unrest and insurgency.
    
6. Negative Impression on Public Perception:
   The AFSPA's association with alleged human rights violations and excessive use of force has led to negative perceptions both domestically and internationally. This can have repercussions on the reputation of the armed forces and the country as a whole.

Conclusion
At the last I would like to conclude that AFSPA Act is most controversial law in India since 1958. There is no doubt that this Act crushing human right and value but it's a necessity for the establishment of peace in a particular region as well as a way to standstill armed insurgencies, terrorism, and internal disturbances within the territories in India.

That Act also violated Article 14,19 and 21 of the Indian Constitution which popularly known as "golden triangle" of our Constitution. But Indian government should be take some step by impose some alternatives laws e.i The Disturbed Areas ( Special Court ) Act,1976 , The Armed Forces ( Judicial Powers ) Act,1972 , The National Investigation Agency ( NIA ) Act, 2008 and The Unlawful Activities ( Prevention ) Act, 1967 which might be an alternatives of AFSPA.

End-Notes:

1. Available at; https://en.wikipedia.org/wiki/Armed_Forces_(Special_Powers)_Act
2. "The Armed Forces (Special Powers) Act, 1958: A Critical Analysis" by Suhas Chakma
3. "The AFSPA: A Tool of State Terror in India" by Aakar Patel
4. Available at: https://main.sci.gov.in/supremecourt/2012/29000/29000_2012_Judgement_14-Jul-2017.pdf
5. AIR 1998 SC 431, available at: https://main.sci.gov.in/jonew/judis/13628.pdf
6. AIR 1997 SC 568
7. (2010) 6 SCC 332
8. (2016) 8 SCC 419
9. 013(2) MLJR 138
10. https://en.wikipedia.org/wiki/Irom_Chanu_Sharmila
11. Section 6 of the Armed Forces (Special Powers) Act, 1958
12. Dr. Surendranath Arup, Dr. Chakma Suhas, Mr. Bhargava, "India: The Armed Forces (Special Powers) Act,1958: A Threat to the Rule of Law.", (The International Commission of Jurists (ICR) report, 2015) p. 22
13. Ibid at p. 23
14. Ib

Award Winning Article Is Written By: Ms.Susmita Chetry & Mr.Suraj Chetry

Authentication No: AG321307245204-1-0823