The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
Introduction
Enacted in July 1990 due to the rising militancy and insurgency in Jammu & Kashmir.
It extends the Armed Forces (Special Powers) Act, 1958, specifically to Jammu and Kashmir.
The law gives special powers to the armed forces to deal with situations of internal disturbance, terrorism, and secessionist violence.
Considered a controversial Act, as it balances national security vs. human rights.
Objectives of the Act
To empower the armed forces to maintain public order in disturbed areas of Jammu and Kashmir.
To provide a legal framework for the army to operate against terrorism and insurgency.
To protect armed forces personnel from legal prosecution for actions taken during operations.
Key Provisions
1. Declaration of Disturbed Area (Section 3)
The Governor of Jammu & Kashmir or the Central Government can declare any area of the State as a “Disturbed Area” if public order is at risk due to terrorism, insurgency, or violence.
2. Special Powers of the Armed Forces (Section 4)
Members of armed forces can:
Use force, including fire, even causing death, against any person acting against law or carrying weapons.
Destroy arms dumps, hideouts, fortified positions, or shelters from which armed attacks are made.
Arrest without warrant any person suspected of committing a cognizable offence.
Enter and search premises without a warrant if they suspect illegal arms or explosives are stored.
Stop and search vehicles for unlawful items.
3. Protection to Armed Forces (Section 7)
No prosecution, suit, or legal action can be taken against any armed forces personnel without prior sanction of the Central Government.
This immunity is given to ensure that soldiers can act fearlessly during operations.
Importance of the Act
Helps the Army to act quickly in terrorism-hit regions.
Ensures national integrity and sovereignty.
Provides legal protection to forces in counter-insurgency operations.
But at the same time, it has been criticized for:
Human rights violations (fake encounters, harassment, excessive force).
Lack of accountability due to legal immunity.
Case Laws
Naga People’s Movement of Human Rights v. Union of India (1997)
Though related to the 1958 AFSPA, principles apply to J&K.
Supreme Court upheld the constitutionality of AFSPA, stating it is not arbitrary.
Court laid down guidelines to prevent misuse:
Use of force should be minimal.
Arrested persons must be handed over to police within 24 hours.
Do not destroy property unnecessarily.
Indrajit Barua v. State of Assam (1983)
The High Court observed that AFSPA is necessary in disturbed areas to protect national security, even if it places restrictions on certain freedoms.
Masooda Parveen v. Union of India (2007, J&K High Court)
Petition regarding alleged fake encounter under AFSPA.
Court reiterated that sanction of Central Government is necessary before prosecuting army personnel.
Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2016)
Though relating to Manipur, Supreme Court held that excessive use of force and fake encounters are not protected under AFSPA.
Even in disturbed areas, the Army cannot act with absolute immunity.
Conclusion
The AFSPA (J&K), 1990 is a special law designed to tackle insurgency and terrorism in Jammu and Kashmir by giving extraordinary powers to the armed forces.
It ensures quick response to terrorism, but
It also creates concerns about human rights violations.
Courts have upheld the Act as constitutional, but emphasized that powers must be used with restraint, responsibility, and accountability.
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