Critical Analysis of the Armed Forces (Special Powers) Act, 1958

Abstract

The Armed Forces (Special Powers) Act, 1958 (AFSPA) has been a topic of widespread discussion. The Act remains in effect in regions where issues like ethnic conflict and unfulfilled aspirations persist, and where violence and secessionist movements pose a threat to national and societal harmony. The law has been criticized for exacerbating fear and suspicion between the military/law enforcement and the communities they serve, which hinders efforts to build trust and promote reconciliation in areas affected by conflict. Originally enacted in 1958 to address the Naga insurgency in the northeastern state of Assam, it has since been implemented in other parts of India grappling with armed conflict or insurgency. The Act is applicable in certain "disturbed areas," including the Northeastern states of India, Kashmir, and formerly in Punjab. This Act has been criticized for being non-compliant with international conventions and treaties that India has signed. Additionally, the definitions within the Act are ambiguous, giving the armed forces a wide scope to interpret them as per their own will and escape punishment even after committing severe violations of human rights. This paper scrutinizes the historical backdrop and legal trajectory of the Act, with reference to the demarcation of legislative powers and the degree of discretion vested upon the executive in declaring regions to be “disturbed”. The present working paper seeks to analyze the effect of this presumably draconian law in the states it has been enacted. Further, the authors seek to address the debate that AFSPA has proven ineffective in addressing insurgency and, in fact, has exacerbated the human rights issues associated with it. Ultimately, the matter has been deliberated upon and consequently, a conclusion has been arrived at, along with some reasonable recommendations.