The Armed Forces (Special Powers) Act 1958

Three features are examinable. The opinion is subjective, in the same sense as the satisfaction worked in [Subjective Satisfaction, and How Far a Court May Examine It]. The Central Government may declare an area disturbed even where the State's own Governor has not. And the section as it stands prescribes no period, though declarations are in practice made for six months at a time, as the Act's own footnote records for Nagaland with effect from 30 December 2021.

Section 4: the powers. Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank may, in a disturbed area:

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person acting in contravention of any law or order in force in the disturbed area prohibiting the assembly of five or more persons, or the carrying of weapons or of things capable of being used as weapons, or of firearms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely or attempted to be made, or any structure used as a training camp for armed volunteers or used as a hideout by armed gangs or by absconders wanted for any offence;

(c) arrest without warrant any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit one, and use such force as may be necessary to effect the arrest;

(d) enter and search without warrant any premises to make such an arrest, or to recover any person believed to be wrongfully restrained or confined, or any property reasonably suspected to be stolen, or any arms, ammunition or explosive substances believed to be unlawfully kept there, using such force as may be necessary.

Section 5: handing over. Any person arrested and taken into custody under the Act 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.

Section 6: immunity. No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act.

Section 7 was repealed in 1960.

Why the Act is the sharpest case in the module

Because every other statute in Module II works through a court. TADA had a Designated Court, POTA a Special Court, the Unlawful Activities (Prevention) Act a bail hearing, and SAFEMA a competent authority with an appeal. This Act operates entirely before any court is involved and, by section 6, controls whether a court is ever involved at all.

Set the four powers against the ordinary law and the departure is measurable.

Firing. Under the ordinary law, the use of force to disperse an unlawful assembly is regulated by the provisions on dispersal of assemblies and by the private defence and public servant exceptions in the penal law, and the officer's judgment is examined afterwards. Here the officer's own opinion that it is necessary for the maintenance of public order is the authority, and the warning is such as he may consider necessary.

The trigger for firing is not violence. It is contravention of an order prohibiting an assembly of five or more, or the carrying of weapons. A person walking in a prohibited assembly is within clause (a).

The rank. A non commissioned officer, which includes a havildar, exercises the power. No statute in India gives the power to fire to kill to so junior an official.

The immunity. Section 6 is not a bar on liability but a bar on instituting proceedings. It bites at the threshold and it covers anything purported to be done under the Act.

The counter-argument, put fairly

An answer that only lists objections will be shallow, and the case for the Act is real.

The army is not a police force and cannot function on police rules of engagement in an area where the civil power has broken down. Article 355 places on the Union the duty to protect every State against external aggression and internal disturbance, and a duty without a power is empty. The declaration under section 3 is an admission that ordinary administration has failed, and it is made by the Governor or the Central Government and not by the soldier. Section 5 requires the arrested person to be handed to the police at once, so the Act creates no power of detention. And section 6 protects the soldier from being sued by the very persons he is deployed against, which without protection would make the deployment unworkable.

The honest reply is that each of those is an argument for some special power, and none is an argument for the powers in the form section 4 gives them. That is the argument made in [Why Such Laws Are Called Draconian].

The four questions to ask of any AFSPA problem

Is the area declared? Section 4 operates only in a disturbed area declared under section 3. Outside it the ordinary law applies.

Was the person within clause (a)? The clause reaches a person acting in contravention of a prohibitory order about assembly or weapons, not any person at all.

Was due warning given? The clause requires such due warning as the officer may consider necessary, which is not nothing: the words presuppose that the question of warning was addressed.

Was the arrested person handed over with the least possible delay? Section 5 is the only time limit in the Act, and it is the provision most often broken.

A worked example

An area of Manipur is declared disturbed. A havildar sees four men at night carrying what he takes to be rifles, in contravention of a standing order prohibiting the carrying of weapons. He fires without warning and one of them dies. The others are arrested and held at the camp for three days before being taken to a police station.

Was the power available? Yes, in a declared disturbed area, and a non commissioned officer is within section 4.

Was the ground made out? The men were carrying weapons in contravention of a prohibitory order, so clause (a) is on its face attracted; whether the order existed and whether they were in fact carrying weapons are questions of fact.

No warning? Clause (a) says after giving such due warning as he may consider necessary. It leaves the sufficiency of the warning to him, but he must have considered it.

The three days? A clear breach of section 5, which requires the arrested persons to be made over to the officer in charge of the nearest police station with the least possible delay.

Can he be prosecuted? Not without the previous sanction of the Central Government under section 6, since what he did was done or purported to be done in the exercise of the powers conferred.

Is that the end of the matter? No, and the next chapter is about why: the do's and don'ts made binding in Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431, and the later decisions on the immunity.

What it does NOT mean

AFSPA is not martial law. The civil administration and the courts continue; the army acts in aid of the civil power.

It does not authorise detention. Section 5 requires the arrested person to go to the police with the least possible delay, after which the ordinary law of arrest and remand applies.

Section 6 does not make the soldier immune from liability. It requires sanction before proceedings are instituted.

It does not apply to Jammu and Kashmir. A separate Act of 1990 does.

Quick revision

• AFSPA 1958, originally the Armed Forces (Assam and Manipur) Special Powers Act, renamed and extended in 1972; extends to Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.
• s.2: armed forces means the military and the air forces operating as land forces and any other armed forces of the Union so operating; disturbed area means an area declared under s.3.
• s.3: the Governor, the Administrator or the Central Government, of opinion that the area is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, may declare it a disturbed area.
• s.4: any commissioned, warrant or non commissioned officer or person of equivalent rank may (a) fire even to the causing of death, after such due warning as he may consider necessary, against a person contravening an order prohibiting an assembly of five or more or the carrying of weapons; (b) destroy arms dumps, fortified positions, shelters, training camps and hideouts; (c) arrest without warrant on reasonable suspicion, using necessary force; (d) enter and search without warrant.
• s.5: the arrested person to be made over to the nearest police station with the least possible delay, with a report of the circumstances.
• s.6: no prosecution, suit or other legal proceeding except with the previous sanction of the Central Government, for anything done or purported to be done under the Act.

Test yourself

1. Who may declare a disturbed area, and on what opinion? The Governor of the State, the Administrator of the Union territory or the Central Government, on the opinion that the whole or a part of it is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary.

2. Which ranks may exercise the section 4 powers? Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces.

3. Against whom may force even to the causing of death be used? Against a person acting in contravention of any law or order in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances, where the officer is of opinion that it is necessary for the maintenance of public order and after such due warning as he considers necessary.

4. What does section 5 require? That any person arrested and taken into custody 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.

5. What exactly does section 6 bar? The institution of any prosecution, suit or other legal proceeding, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act.