Part- II: Analyzing the Constitutionality of AFSPA- Is it a "Bad Law"?

Role of the Supreme Court in assessing the constitutionality of AFSPA:

AFSPA was colonial legislation that was enacted as a temporary measure to curb the insurgency problem in the north eastern region almost six decades back that has not been withdrawn even today. Is this what the term temporary essentially entails wherein the civilians in certain areas of our country have to live under the shadow of a gun at all times, also, then what is permanent?

Supreme Court of India

This issue in fact came up in the landmark case of Naga People’s Movement of Human Rights v UOI in 1988 wherein a writ petition was filed before the SC by the NPMHR challenging the constitutionality of AFSPA. While the SC rejected all the arguments to uphold the constitutionality of the act, the very existence of the act is questionable.

--For instance, one of the issues that arose in this case was whether the Parliament was competent to enact the ‘Central Act’ or ‘AFSPA’ by virtue of Entry 2A (after 42nd amendment) List I and Article 248 read with Entry 97 of List I.

While the basic objective of AFSPA is to maintain ‘public order’ but, public order as a subject is mentioned under Entry I of List II which means the state should have the competence to enact law on the matter on public order.

However the court took a different turn in this case and went on to state that the Union has overriding powers under Entry 2A of List I and therefore, the enactment of AFSPA was legitimate and within the Constitutional powers of the Union.

Another issue that arose in this case was- Whether Section 6 of the Act could be subject to judicial review?

While fortunately the SC recognized the power of judicial review in this case, but it is only recognized in paper and not in practice. So in effect, mere declaration of the power of judicial review without declaring the law to be void gives unfettered powers to the armed forces and has little or no effect at all. And therefore, the immunity granted under Section 6 of AFSPA to armed forces which is not even an enactment introduced due to an emergency in reality, tramples the constitutional safeguards.

Scales of Justice

  • Serious allegations of human rights abuse have time and again been made against the armed forces. For instance, as per an RTI filed by a human rights activist, Venkatesh Naik, it is revealed that the state of human rights is grossly compromised wherein a total of 186 complaints have been made out against the armed forces ranging from fake encounter cases (21 complaints), to instances of gang rape and abduction (10 cases).

--- These instances of fake police encounters wherein it has resulted in death of innocent civilians and sexual violence in the form of rape and sexual harassment to women have risen in the North Eastern state of Manipur as well as in Kashmir in the recent years with the latter topping the list of human rights abuse.

  • Such allegations were compiled and brought forth in the case of Extra Judicial Execution Victim Families Association and Anr v UOI wherein the SC while stating that such blanket immunity provided to the armed forces goes against the democratic fabric of the nation as well as the constitution, yet not much has been done to abate the situation.

---The SC in the 2016 judgment delivered by J. Madan Lokur and UU Lalit held that such blanket immunity is illegal and unconstitutional. The bench went on to say that such license to shoot or exercise maximum force by the army even on reasonable suspicion or threat to the state goes against the basic tenets of the rule of law and even the constitution.

Such a provision should be scraped in the first place because it is has a deleterious impact on the democratic fabric of our nation as the civilians in the region where AFSPA is applicable live under a constant state of fear and apprehension that they might be killed by the armed forces any time, that is, it is unsettling and unconstitutional to live under the shadow of a gun at all times.

The reality of such complaints/appeals:

Several complaints have been received by the Court on grounds of unbridled exercise of power by the armed forces in terms of arbitrary use of power to arrest & detain including the likes of- custodial death, custodial torture, right to shoot and kill person on site, very less has been done to actually prevent such extra judicial killings by the armed forces from happening in reality.

The investigations that have been made are highly suspicious and sketchy, as the state often acts as a defender of the Armed Forces. In fact, the state can be seen as a facilitator when it comes to creating a state of terror in those regions, if not directly participating in the act of commission of human rights abuses.

Thus, while the 2016 one is indeed a welcome judgment but in reality, the instances of extra judicial killings by armed forces continue even now and thorough investigation into such matters of human rights abuse in those areas have not been done even today despite ICJ asking the Indian government to do so in an impartial and objective manner. This reflects that first of all the provision not only violates the Indian constitution but by not prosecuting the perpetrators and failure to conduct a proper investigation in such cases mean that India is not in tandem with its international obligations as well.

Rule of law and AFSPA- Is AFSPA a bad law?

Lon Luvois Fuller
Lon Luvois Fuller

While the conception of rule of law varies from society to society there is a general understanding of what rule of law is across all societies and nations which can best be understood by enunciating on the rule of law as propounded by the American jurist Lon Luvois Fuller. Few of the elements of rules of law are:

  1. Law must be general. It must be complied with by all including the government officials;

  2. Law must be publicized.