On the 30th of March 2025, announcement has been made regarding extension of AFSPA in certain disturbed areas of Manipur and Arunachal Pradesh for another six months. The constitutional validity of the Armed Forces (Special Powers) Act or AFSPA has been long debated by various sections of Indian society. Many believe that the battle against terrorism cannot be equated with normal law and order problem and therefore AFSPA is much needed in the disturbed areas of North-East India and Jammu and Kashmir. The Indian Army strongly opposes any “major dilution” or “phased withdrawal” of AFSPA. Any such step, they advocate, will adversely affect the way military operates in militancy-hit areas. Amending AFSPA means compromising with national security, they say. However, the Act has been widely criticized by many national and international human rights agencies in light of rights and liberties of citizens. In this discussion, however, the AFSPA has been evaluated from a very different perspective. Some of its characteristics are similar to the British era Rowlatt Act, which was despised by the whole nation once. The major points of similarity between the two Acts can be pointed out as under:

1. Arrest Without Warrant

AFSPA provides power to officers of the armed forces to arrest anyone without a warrant who has committed cognizable offences or is ‘reasonably suspected’ of having done so and may use force if needed for the arrest. This means arresting anyone on grounds of mere suspicion, without any objective criteria defining the term ‘reasonably suspected’. Rowlatt Act also provided for arrest and deportation of any person on basis of mere suspicion.

2. Detention Without Timely Access to Courts

Section 5 of AFSPA states that after the military have arrested someone, they must hand that person over to the nearest police station with the “least possible delay”. The phrase “least possible delay” has conveniently been left undefined and armed forces are at full liberty to exercise their discretion. This is a special provision granted to the armed forces exceeding the provisions of Article 22(2) of the constitution. The Rowlatt Act used to empower the ‘State’ to detain a citizen without giving the detainee any right to access to a court of law.

3. Declaration of “Disturbed Areas”

AFSPA takes effect in an area that is proclaimed as “disturbed”. The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowered only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or the Union Territory as ‘disturbed’. The Governor was empowered to give effect to the Rowlatt Act to any area, making it an oppressive unitary mechanism, leaving no role for the Provincial Councils.

4. Immunity for Armed Forces

Army officers have legal immunity, under AFSPA, for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Similarly, government’s judgment on why an area is found to be disturbed is not subject to judicial review. The Rowlatt Act also provided similar immunity to the government employees.

5. Powers of Search and Seizure

Army officers are empowered by AFSPA to enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it. Under the Rowlatt Act, the provincial governments were empowered to search a place and arrest a suspect without a warrant, and to confine anyone anywhere in the country.

6. Use of Force

“After giving such due warning, to fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order.” – This power provided to the officers under AFSPA highlights the potential for abuse. Similar powers were part of the Rowlatt Act, which was one of the causes behind the infamous Jalianwala Bagh Massacre.

“No vakil, no appeal, no daleel” – That is the way the Act was popularly referred to at that time.

Does AFSPA not appear to be a paradox to the Constitution? The Constitution of India is built on values of Justice, Liberty, Equality, and Fraternity. The resistance to the Rowlatt Act united the Indian nation under the leadership of Gandhiji. Shouldn’t we ask whether AFSPA, which was enacted in 1958 as an emergency measure, has really achieved its purpose? The military’s role in its failure should also be considered, and whether the law has been holding the army accountable for the lack of resolution in the ’emergency’ that has lasted over six decades.  

Ghanendra Kumar Nath,
Naharlagun