The Armed Forces (Special Powers) Act, 1958 : A commentary
- Part 1 -

Col SS Khulem (Retd) *

THE ARMED FORCES (SPECIAL POWERS) ACT, 1958
(ACT, 28 OF 1959)

An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the states of 1[Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura].

BE it enacted by Parliament in the Ninth Year of the Republic of India as follows:-

1. Short title and extent. - (1) 2[This Act may be called the Armed Forces (Special Powers) Act, 1958]
(2) It extends to the whole of the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.

Comment

(1) 1. The Armed Forces (Assam and Manipur) Special Powers Act, 1958 (Act 28 of 1958) has been amended by the Armed Forces (Assam and Manipur) Special Powers (Amendment) Act 1972 (No. 7 of 1972). The Act then became 'The Armed Forces (Special Powers) Act, 1958'

2. For statement of Objects and Reasons, see Gazette of India, 11 Aug 1958, Part II Section 2, Extra P 714 and for amendments see Gazette of India, 5 Apr 1972, Part II Section 1, Extra P47.

(2) 1. The Act extends only to the states of the North East as laid down in the Act. The initial Act was called THE ARMED FORCES (ASSAM AND MANIPUR) SPECIAL POWERS ACT, 1958. Later with the formation of other states, the Act was amended in 1972 by the Armed Forces (Assam and Manipur) Special Powers (Amendment) Act 1972 (Act. 7 of 1972 and Act 69 of 1986) and the Act was re-named as THE ARMED FORCES (SPECIAL POWERS) ACT, 1958. The amended Act now extends to all the seven sisters (Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh)

2 "Union territories of Arunachal Pradesh and Mizoram" were replaced as states of Arunachal Pradesh and Mizoram by The Armed Forces Special Power (Amendment) Act 1986

3. AFSPA in the form of [THE] ARMED FORCESS (PUNJAB AND CHANDIGARH) SPECIAL POWERS ACT, 1983 was used in Punjab and at present The Armed Forces (Jammu & Kashmir) Special Power Act, 1990 is used in J&K (both are almost same as AFSPA 1958. The differences are: 1.In AFSPA 1958. There is no provision to stop, search and seized vehicles and Vessels but AFSPA1983, and AFSPA 1990 have this provision u/s 4. 2. AFSPA1983, and AFSPA 1990 provides power to break open locks, Amirah, safe etc if the key thereof is withheld u/s 5. 3) Power to Declare Areas to be Disturbed areas under AFSPA 1990. Conditions in this Act is slightly different from the other two Acts. ……… the use of armed forces in aid of the civil power is necessary to prevent -

(a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people of alienating any section of the people or adversely affecting the harmony amongst different sections of the people ;

(b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India,

[It is felt that the Act should extend to the whole of India and its application will depend on the declaration of an area as 'disturbed area'. The need for such an Act may also arise in other parts of India. Such a step may sober down the feeling of alienation / 'special treatment' being meted out to the people of North East.]

2. Definitions. - In this Act, unless the context otherwise requires,
(a) "armed forces" means the military forces and the air forces operating as land forces, and includes any other forces of the Union so operating;
(b) "disturbed area" means an area which is for the time being declared by notification under S.3 to be a disturbed area;
(c) All other words and expressions used herein, but not defined and defined in the Air Force Act 1950 or the Army Act 1950, shall have the meanings attached to them in those Acts.

Comment

1. "air forces operating as land forces," implies that Air Power including helicopter gunship of the Army cannot be used. However, there is no restriction on use of Air crafts and Helicopters for evacuation of casualty and transportation of troops etc.
2. "any other forces of the Union so operating" Does it mean CAPF only or does it also include State Forces of other state in another state?.
3. Navy is not mentioned in the definition of "armed forces". Section 2(c) also excludes Indian Navy. Navy may be required if the Act is applied in the coastal areas (unless "and includes any other forces of the Union so operating;" covers the Navy also)

3. Power to declare areas to be disturbed areas. – If, in relation to any State or Union Territory to which this Act extends, the Governor of that state or the Administrator of that Union Territory or the Central Government in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such state or Union Territory to be a disturbed area.

Comment

1. "the Central Government in either case" was inserted vide Armed Forces Special Powers
(Amendment) Act 1972 (Act 7 of 1972)
Section 3 of the Act as originally enacted the power to declare an area to be a disturbed area was conferred on the Governor of Assam and the Chief Commissioner of Manipur. Section 3 was amended by Act 7 of 1972 and power to declare an area to be a 'disturbed area' has also been conferred on the Central Government.

In the Statement of Objects and Reasons of the Bill which was enacted as Act 7 of 1972 the following reason is given for conferring on the Central Government the power to make a declaration under Section 3:- "The Armed Forces [Assam and Manipur] Special Powers Act, 1958, empowers only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or Union Territory as "disturbed". Keeping in view the duty of the Union Under article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central Government should also have power to declare areas as "disturbed", to enable its armed forces to exercise the special powers."

2. Disturbed area should be declared only in that affected area not in the entire state, which also has to be reviewed before expiry of a period of six month. The use of Armed Forces should be restricted to only bare essentials since the primary role of the Armed Forces is to defend the country against external aggression. [Supreme Court also has given a similar ruling in Naga people's Movement of Human Rights v Union of India (A.I.R 1998 SC 431).]

3. It is also a fact that Armed Forces personnel are not very conversant with laws and other legal formalities required in such situations.

4. In situations, where Police and other law enforcing agencies are functioning effectively, that area should not be declared as 'disturbed area'.

5. The situation should be in "such a disturbed or dangerous condition" that one can presume that law and order machinery in that state has collapsed or it is envisaged that the existing law and order machinery will not be able to cope with the situation (at least in certain particular areas).

4. Special powers of the armed forces. – 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 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 who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapon or of things capable of being used as weapons or of fire-arms, 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 to be made or are attempted to be made or any structure used as a training camp for armed volunteers or utilized as a hideout 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 and 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.

Comment

Purpose of the Act

1. Armed Forces do not have power on civilians to arrest, search etc

2. This Act [a special and local law (IPC Ss41 & 42)] was enacted basically to give certain powers to the Armed Forces so that they can be used in aid of the civil power. As contained in section 3, an area is declared as 'disturbed area' to allow use of Armed Forces in aid of the civil power. Only after declaring an area as 'disturbed area' the Armed Forces can exercise the powers conferred by section 4 of this Act in aid of the civil power.

3. This Act does not confer any extraordinary power (Special Power) on the Armed Forces, which the Police cannot exercise. The power conferred by section 4 of the Act is basically extension of police powers to the Armed Forces with a little modification. These Powers are 'Special Powers' to the Armed Forces because these are conditional powers, which they cannot exercise, in normal military functioning.

4. This Act has been enacted to deal with a situation@, which is serious enough but does not warrant invoking powers under Article 352 (Proclamation of Emergency)& 356 (…failure of constitutional machinery in state) of the Constitution (A situations, where Police and other law enforcing agencies are still functioning). Because the power conferred by the Act is conditional upon the existence of a prohibitory order under a law e.g. CrPC, the Arms Act 1959 etc. The civil authority of the state only can issue such prohibitory orders. In the absence of a prohibitory order powers conferred under clause (a) of section 4 cannot be exercised. Similarly all follow up actions ie FIRs, investigation, prosecution, trial, conviction and execution of sentences will be handled by the civil authority only. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution. (A.I.R 1998 SC 431)

5. Armed Forces operating under this Act should not assume that they have automatically taken charge of the situation and they are supreme. Therefore, Civil Authority must work out proper policy and procedures for employment and co-ordination of efforts.

6. ARMED FORCES (SPECIAL POWERS) ACT, 1958 IS NOT MARTIAL LAW (Rule by military authorities during an emergency when the civil authorities cannot function)

To be continued....