Introduction

History of the Act

“The birth of the modern state of India had awakened with a Partition which resulted in serious disturbances and it was inevitable for the deployment of the Armed Forces in large areas and over long periods became inevitable. The provisions of Section 1301 and 1312 of CrPC had ideated that the officer-in-charge of the detachment of the Armed Forces present on the spot would use force and arrest members of an unlawful assembly, were not sufficient to control the situation. Thus, under these circumstances that the Armed Forces were given special powers with the enactment of laws like the Bengal Disturbed Areas(Special Powers of the Armed Forces) Ordinance, 1947 and East Punjab Disturbed Areas(Special Powers of the Armed Forces) Ordinance, 1947. Essentially, these laws empowered even the non-commissioned officers to use force which could extend to causing death, searching premises without a warrant or rescuing persons wrongfully restrained and to provide immunity from prosecutions in respect of such acts.

Though these enactments ceased to operate a few years after the situation in the affected states stabilised, the arrangements made were deemed useful for situations requiring deployment of the Armed Forces for Internal security duties for prolonged periods. When the deployment of the Army and the para military forces in large numbers and for an undetermined period to handle the situation arising because of insurgency by the Nagaland

1 Use of armed forces to disperse assembly:

(1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. (2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law. (3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

2 Power of certain armed force officers to disperse assembly.

When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law, but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the Magistrate as to whether he shall or shall not continue such action.

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National Council became necessary, a law on the lines of the 1947 enactments was also considered to be indispensably required.

This resulted in the Armed Forces (Assam and Manipur) Special Powers Act, 1958. The Naga inhibited areas affected by the insurgency fell in the then Naga Hills District in Assam and three subdivisions in Ukhrul, Tamenglong and Mao in the then Union and Territory of Manipur. The law was subsequently used to deal with insurgency and in the then Miso Hill District and also in Assam and Tripura. Following the reorganisation of the North Eastern region in 1972 entailing, inter alia, a constriction of the territory of the State of Assam, the act was amended and it was renamed as The Armed Forces (Special Powers) Act, 1958.

The act extends to all the states of the North East except Sikkim. Recently, Tripura repealed this act in their state. It comes into operation after a declaration was made under Section 2, which says that a particular area is ‘Disturbed’. Earlier, only the Governor/Administrator was competent to issue such declaration. The 1972 amendment now vests similar power with the Union Government. The act applies to the Army, Air Force, and the Central Paramilitary forces. Once the declaration is issued, they the commissioned or non-commissioned officers will be availed ‘special powers’. The special powers are:

Section 5 of AFSPA requires that the persons arrested by the Armed Forces be handled over to the nearest police station ‘with the least possible delay’ along with a report of ‘circumstances occasioning the arrest’. Section 6 gives members of the Armed Forces discharging duties under the Act immunity from prosecution and other legal proceedings except with the previous sanction of the Union Government. The act has been used in Manipur and Nagaland since the 1958. Attempts have been made to seek judicial review of this law and with a view to seek its annulment on grounds that it is repugnant to the right to equality and the federal structure of the Constitution etc. The matter has received a quitus following the unanimous pronouncement by a five judge Constitution bench of the SC in the Naga People’s Movt of the Human Rights v UOI.

Keeping in view the duty of the Union under Article 335 of the Constitution, to protect every state against the Internal Disturbance, it is considered desirable that the Central Govt should also have the power to declare areas as ‘disturbed’, to enable its armed forces to exercise the special powers’

Section 3 of the Act mentions the ‘Power to declare areas to be disturbed areas’. Under this section, if the government of the state to which the Act applies is of the opinion that the whole or any part of such State is in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is necessary, it may, by a notification published in the official gazette, declare the whole of the state or part of the state to be a ‘disturbed area’. Such a power can also be exercised by the Governemtn by virtue of the 1972 Amendment Act. This section however does

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