AFSPA stands for Armed Forces Special Power Act. In simple terms, AFSPA gives power to Armed forces to maintain law and order in disturbed areas.
Article 34 – deals with restriction on rights conferred by Part III while martial law is in force in any area. It empowers the Parliament to, by law ,indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area
Martial law in this context means military rule wherein the law and order is under the control of the armed forces. The article empowers the Parliament to protect the actions committed by the armed forces in order to maintain law and order in a disturbed area.
Article 355 – deals with the duty of the Union to protect States against external aggression and internal disturbance.
It States that it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.
In order to protect the State from external aggression and internal disturbance, the Parliament can deploy Army in a State and protect its actions under Article 33
The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on August 15, 1942 to suppress the Quit India Movement.
Shaken by the massive scale of violence across the country the then viceroy Linlithgow promulgated the armed forces special power (Ordinance)
Modeled on these lines, four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance were invoked by the Central government to deal with the internal security situation in the country in 1947 which arouse out of the Partition of India.
The increasing violence in the North-eastern States in the 1950s, which the State governments found difficult to control led to the enactment of the existing law. The Armed Forces (Special Powers) Bill was passed by both the Houses of Parliament and it was approved by the President on September 11, 1958. It became known as the Armed Forces Special Powers Act, 1958.
As Stated in the Act, it aims to enable certain special powers to be conferred upon members of the armed forces in disturbed areas
ARMED FORCES – The Act defines “armed forces” means the military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating
DISTURBED AREA – According to the Act, a disturbed area is one which is declared by notification under Section 3 of the AFSPA.
An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.
The Central government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.
A suitable notification would have to be made in the Official Gazette. As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
SPECIAL POWERS OF THE ARMED FORCES
Under Section 4 of the Act, any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area –
(a) if he is of opinion that it is necessary for the maintenance of public order, after giving such due warning as he may consider necessary,
Can fire upon or use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area
prohibit the assembly of five or more persons
The carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances
(b) may destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or 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 a cognizable offence and may use such force as may be necessary to effect the arrest
(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.
Note – The law under Section 5 mandates that any person arrested and taken into custody under this 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.