AFSPA's 68-year transformation: From emergency measure to permanent immunity

In June 2026, Home Minister Amit Shah made a very familiar promise to remove the Armed Forces (Special Powers) Act (AFSPA) from all North East except one or two. The statement sounds very similar to previous versions made in 2020, 2022 and 2023. Each time, officials of the Home Ministry have carefully distinguished this from reducing the so-called “disturbed area” notification (which is basically the geographic footprint) rather than actually repealing the Act itself.

The distinction is not bureaucratic; it is constitutional. And the government's repeated failure to make it indicates something much darker: the AFSPA persists not because it is necessary, but because it is useful to the government.

To understand why selective removal would fail, we must examine AFSPA's transformation from an emergency measure to a permanent framework. This is not a critique of the Act's original intentions, but a recognition of what happens when emergency powers outlast the emergencies they were designed to address.

The Armed Forces Special Powers Act, 1958 did not originate from the Indian constitutional framework. It was basically inherited from the Britishers, enacted as the Armed Forces (Special Powers) Ordinance in 1942. The main purpose of this Ordinance was to suppress the Quit India Movement and other independence struggles. When independent India inherited this AFSPA, the rationale was very clear and intelligible. It would be used for the North East states, as there was an insurgency, specifically Naga separatism, which was a real security challenge. The armed conflict was not hypothetical; it was real and the police failed to govern the territory.

The context of the Act matters because it explains why it was created. It was meant to be an emergency measure - temporary and conditional - to be deployed only when civilian authority, such as a state government or the constitutional machinery, fails. Section 3 of the Act states that the power to declare areas to be “disturbed areas” applies when the Governor or Central government believes “the use of armed forces in aid of the civil power is necessary”.

The emphasis on necessity implies a high threshold. Civil administration, not permanent military rule, remained the default.

The nature of the problem is simple – what was created as a temporary security measure became permanent. What was meant to be conditional became indefinite. By 2026, the AFSPA will have operated in the North Eastern states for 68 years. The government states that insurgency persists. In reality, there is poverty, marginalisation, historical grievance and a lack of equitable development. AFSPA manages symptoms through armed force while leaving main causes untouched.

This is the first lacuna in the government’s logic. If AFSPA was needed because ordinary law could not function under genuine conflict, then perpetual reimposition of AFSPA, in Manipur most recently in 2024, reveals something more important. The Act has not solved the problem. The violence it was meant to suppress remains; its inability to prevent ethnic conflict in November 2024 is not a reason to extend it, but a reason to admit that military-dominated emergency frameworks cannot substitute for development, dialogue and political settlement.

AFSPA becomes constitutionally indefensible not in its creation but in its evolution. Over six decades from implementation, it shifted from an emergency law addressing active conflict to something entirely different: a mechanism for extracting immunity from accountability.

Section 6 states:

“Protection to persons acting under the Act – No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act."

This was made to stop fake cases against the Army that would hinder their operations. But in practice, it has become an absolute shield. In 2016, the Supreme Court ruled in Extrajudicial Execution Victim Families Association v. Union of India that investigations into the alleged encounter deaths in Manipur must proceed, after the Central government withheld sanction for prosecution.

The promise that AFSPA will be removed from the North East, except for “one or two states,” does not promise the return of rule of law. Whatever the reason stated for its rationale - security, stability, etc - the effects are identical: certain citizens will continue living under conditions where state actors can act without any accountability, while others will not. This is not a compromise between security and liberty. It is creation of permanent two-tier citizenship.

In November 2024, the government reimposed the AFSPA in six police station areas of Manipur after fresh ethnic violence. This is very significant, as it reveals that AFSPA reimposition is not an exception in the system; it is the intended feature. The Act allows the government to declare or redeclare areas as “disturbed” cycling through periods of nominal removal followed by reimposition. Each cycle resets the clock of investigation and accountability. In this context, the ministers' promise to repeal the AFSPA by 2027 is not a commitment to accountability, but rather a postponement mechanism.

The Justice Santosh Hegde Committee, constituted by the Supreme Court in 2013, investigated various encounter deaths in Manipur. Findings were damning: it highlighted that 5 out of 6 cases were found to be “not genuine” encounters. Victims had no criminal records; they were ordinary civilians. The Committee highlighted that the AFSPA legal structure enabled “sweeping powers” to the military without any safeguards to the citizens, creating conditions where extrajudicial killing became possible.

Between 2000 and 2012, the Extrajudicial Execution Victim Families Association documented 1,528 alleged killings in Manipur. The Government of India has not refuted these numbers. It has simply not prosecuted anyone because there is no time limit for withholding the sanction under section 6. Even when the Supreme Court tried to compel prosecution, the government imposed the same provision to freeze cases.

Thangjam Manorama Devi was killed in July 2004. She was a young woman detained by Assam rifles and was found dead after some days, under the circumstances of torture and sexual violence. The death of Manorama Devi ignited the “nude protest” in Imphal, in which 30 women walked through the streets holding the placards stating “Indian Army Rape Us”. The incident was so brutal that the government had to establish the Jeevan Reddy Committee in 2004 to recommend the AFSPA repeal. Even after two decades, accountability remains incomplete.

These are not isolated incidents. They are systematic patterns enabled by a law designed to tackle the insurgency, but now functions to insulate State agents from civilian accountability.

Selective removal of AFSPA in some territories while preserving it in others creates a structure in which constitutional protection is geographically contingent. The citizens who are not in the ambit of AFSPA can enjoy full access to the courts, due process and remedies, whereas those in AFSPA-governed states remain with very limited protections and limited access to accountability mechanisms. This violates Article 14 of the Constitution, which guarantees equality before the law.

Every serious review of AFSPA has come to the same conclusion. Every Committee has recommended that AFSPA, in its current form, is incompatible with constitutional governance, be it the Jeevan Reddy Committee, the Administrative Reforms Commission, or the Justice Hegde Committee. No government-appointed committee has ever recommended retaining the AFSPA in its present form. Yet, the government has rejected, ignored, or delayed the implementation of the recommendations.

The government cannot defend itself by saying that it is necessary for peace. The November 2024 Manipur incidents prove otherwise. It cannot claim necessity for development. Poverty in the North East has persisted for decades. Militarised emergency governance displaces civilian dialogue and progress.

Piecemeal removal of the Act cannot be the answer. Complete statutory repeal is the only coherent option. The government should commit to the following measures:

First, AFSPA should be repealed by December 2027. It will give the government enough time to come up with a law that includes some accountability.

Second, the replacement should occur through legislation that permits temporary, conditional deployment not exceeding 6 months initially, with mandatory parliamentary authorisation. There should be quarterly reporting and removal of Section 6-type immunity to curb human rights violations.

Third, there should be one commission, headed by a Supreme Court judge, to investigate all AFSPA-related violations since its implementation in India, with the power to recommend prosecutions.

Fourth, the government should grant sanction for the prosecution of all pending cases.

These are not radical demands. This is what accountability looks like; this is what the rule of law requires.

Vinay Kumar is a Assistant Professor of Law of Manipal University Jaipur.

Deepshikha Trivedi is Research Scholar in University of Delhi.