Under Section 4 of the AFSPA, an authorised officer in a disturbed area enjoys certain powers.

1. The authorised officer has the power to open fire at any individual even if it results in death if the individual violates laws that prohibit

(a) the assembly of five or more persons; or

(b) the carrying of weapons.

  However, the officer must give a warning before opening fire.

2. The authorised officer has also been given the power to

(a) arrest without a warrant; and

(b) seize and search without any warrant any premise in order to make an arrest or recovery of hostages, arms and ammunitions.

Individuals who have been taken into custody have to be handed over to the nearest police station as soon as possible.

    3. Prosecution of an authorised officer requires prior permission of the Central government.

The Supreme court ruling

On July 8, 2016, in a landmark ruling, The Supreme Court of India ended the immunity of the armed forces from prosecution under AFSPA.

“It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both... This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.”

Because of the unrestricted and sometimes unaccounted power in gives armed forces, this act has been subject to a lot of criticism. 

1. Helps maintain law and order in ‘disturbed’ areas:

In the event of insurgencies and an increase in secessionist activities of militants, it becomes difficult for state governments to maintain the law and order of these ‘disturbed’ areas. In such a situation, the daily routine of ordinary civilians is disrupted. The main purpose of this act is for the armed forces to assist state governments in maintaining the law and order and ensure that civilian life goes on without interruptions.

2. Ensures safety of common people

The overwhelming presence of insurgents causes grave insecurity to the common people. It creates a situation where people have to live under constant fear and anxiety. Frequent declaration of curfews, extortion and violent crimes by militants compromise the safety of the civilians. The presence of armed forces in areas where these types of offences are recurrent ensures timely and consistent protection of the population. 

3. Curbs terrorist activity

The AFSPA is needed to curb the growth of terrorism. The battle against terrorism cannot be equated with normal law and order problem. Militants in the area pose a great threat to security especially because they often tend to incite violence and attempt to recruit civilians into militancy. The Indian Army strongly opposes the withdrawal of the AFSPA, as they fear such a step will increase militancy in the areas exponentially. In the long run, this may be counter-productive for the security of the whole country.

1. The term ‘disturbed’ may be misused

The Act leaves the whole process of determining if the area qualifies as ‘disturbed’ to the state’s Governor, Administrator or the Central Government without laying down any particular criteria for such a declaration. Such a declaration is not even subject to judicial review. This leaves no mechanism for the people to challenge such a declaration, which could be arbitrary or for political gains. 

2. Has caused several human rights violations

Since the Act came into force, there have been numerous reports of human rights violations as a result of the misuse of the AFSPA. Army personnel have been accused of ‘fake’ encounters, rape and torture of ordinary citizens. Many cases of civilians ‘disappearing’ have led to people feeling terrorised by the security forces that have been stationed there to guarantee their safety. Furthermore, the cases against the armed forces have gone untried due to the wide immunity and unlimited authority provided under the Act. 

3. Curbs civilian activity too

The AFSPA violates the fundamental constitutional rights of civilians like the right to life, liberty, equality, freedom of speech and expression, peaceful assembly, moving freely, the practice of any profession, protection against arbitrary arrest and freedom of religion. While residents of non-disturbed areas enjoy the protections guaranteed under the Constitution, the residents of these disturbed areas live under virtual army rule and are forced to sacrifice their Constitutional rights in the name of the ‘greater good.

One of the most important tasks before the Government is to balance the interests of the individual and those of the democratic society. Lifting the AFSPA can certainly be attempted but the provisions of the AFSPA, as an emergency law, must continue to remain on the statute books given the violent and uncertain times that the subcontinent may face. When needed, it must be applied in small doses, balancing a stringent law with the basic principles of human dignity and human rights.