Armed Forces Special Powers Act, 1958 : A critique

N Brajakanta Singh
The recent developments in Manipur and Nagaland have once again brought into focus the continuous imposition of the Armed Forces Special Powers Act, 1958 (AFSPA) in the North-East. This article examines whether the Indian Parliamentary legislation authorizes a defacto proclamation of Martial Law in these region empowering the armed forces of the Union to act independent of local civil authority and control. The article also examines the Supreme Court’s decision upholding the Constitutional validity of the AFSPA.
Is AFSPA a Martial Law ?
The Indian Parliament enacted the AFSPA on September 11, 1958 in order to curb the violence caused by Naga rebellion and restore normalcy in the region with the use of military forces by aiding the State administration. The whole of Manipur has been declared a ‘disturbed area’ under section 3 of the AFSPA since 1980, in the wake of rising insurgency activities by armed opposition forces.
Although the AFSPA was supposed to enforce only when the law and order situation becomes so deteriorated that the State police force is unable to contain it, but the law is operating even in normal times. The phrase ‘armed forces’ is defined in AFSPA to mean “the military forces and air forces operating as land forces, and includes other armed forces of the Union so operating.”
The law under section 4 enormously empowers the military officers to use deadly force on people who are violating the rule prohibiting assembly of five or more persons, or carrying weapons or things capable of being used as weapons. In the name of maintaining law and order, the armed forces of the Union were empowered to shoot any person on mere suspicion.
The recent botched ambush by the Army on December 4, 2021 during which 13 innocent civilians were killed in Oting, Nagaland is just a glaring example of how the armed forces of the Union abused the sweeping power of the license to kill even innocent civilians.
The Army was acting independent of civilian authority and control in a geographical area where defacto Martial Law is promulgated in disguise. When the military acting independent of the control of civilian authorities, there is Martial Law in operation and there is no need to have a formal promulgation of the same. The most important feature of Martial Law is the military acting independent of civilian authority and control.
When a geographical area is placed under Martial Law, the military commander is under no legal obligation to take orders from civilian authority of the area and he is allowed to take his own decisions. The functioning of civilian authorities and Courts does not mean that we are not in a state of Martial Law. Frederick Pollock in his article ‘What is Martial Law’ writes that the absence of visible disorder and continued sitting of Courts are not conclusive evidence of a state of peace.
 The pertinent question is whether the military is under the control of the civilian authority or whether it is acting independent of the civilian authority. If the military is acting independent of the civilian authority and the Courts, such would be a state of de facto Martial Law whether or not it is so called.
Under the AFSPA, the military also have the power to arrest and search without warrant. There is also provision for handing over of arrested person under section 4(d) which provides that any person arrested and taken into custody under the AFSPA 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. It empowers the military to hold a prisoner until the order is restored and he can be safely turned over to the civil authorities for trial, another feature of Martial Law.
It is now clear that Martial Law prevents but it does not punish. However, the AFSPA under section 6 provides full legal immunity to any person who acts under its authority. The Union Ministry never grants prosecution sanction for trial of any erring military personal involved in human rights violations in Manipur. Further, the issuance of a ‘Disturbed Area Notification’ under the AFSPA is in fact defacto promulgation of Martial Law in the region.
Constitutionality of the AFSPA
The Constitutional validity of the AFSPA was questioned in the case of Naga People’s Movement of Human Rights vs Union of India, AIR 1998 SC 431, before the Apex Court of India. Since the case involved a substantial question of interpretation of the Constitution of India and, as mandated under Article 143, the case was referred to a Constitutional Bench of five Judges of the Supreme Court.
It was argued, on behalf of the petitioners, that the use of the Armed forces in aid of civil power contemplates the use of Armed Forces under the control, continuous supervision and direction (To be contd)