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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temporary measure to curb the insurgency problem in the north eastern region almost six decades back that has not been withdrawn even today.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.

  3. Law should be prospective.

  4. Law must be clear and certain and it must avoid unfair enforcement;

  5. Law must avoid contradiction;

  6. Law must not command the impossible;

  7. Law must stay constant through time to allow for formalization but at the same time law must also be allow for timely revision when the underlying social and political circumstance have change.

AFSPA is a bad law as it has failed to comply with the essential elements of rule of law.

Firstly, it contravenes the first limb of rule of law wherein the applicability of AFSPA is vague and it is not applicable to Government Officials. The Government Officials (Governor or Central Govt.) have the discretion to declare an area as ‘disturbed area’ as per its own whims and fancies and apply this draconian law on the citizens, curtailing their civil and political rights but the same can’t be said as regards the armed forces(government officials) which are in essence an extension of the state.

Secondly, the publicity of this law is again something that is vague. While citizens of the region where AFSPA is applicable live under the shadow of a gun all the time and see the armed forces as a symbol of oppression and hate, the term publicity of law should also entail some sort of education of the law which is not seen in reality. Moreover, since the NE region is severely neglected and isolated and not seen as an integral part of India in reality, therefore the average Indian is oblivious of the abject state of affairs and violations taking place in these regions.

Third, AFSPA is retrospective in nature and hence goes against the third limb of rule of law.

Fourth, AFSPA is again violative of the this limb of law. For instance, Section 4 of the Act gives unfettered powers to the armed force to shoot people of sight even upon mere suspicion or threat to public order, moreover, the power of arrest and detention, search and seizure without warrant are so vast and traverses all the procedural safeguards that the provisions of AFSPA go against the fourth limb of rule of law as well.

The fifth limb of rule of law is also violated as it is seen that the ambiguous provisions AFSPA go against various provisions of the constitution such as Article 21, Article 32 of the Indian Constitution inter alia.

Fifth, Section 5 provides for arrest person to be taken into police custody within the ‘least possible delay’ a phrase which continues to puzzle the courts as it is both impractical and impossible to define and comply with.

The seventh limb is violated as well. For instance, AFSPA was introduced as a temporal measure to maintain public order in the areas where militant activities were widespread. That was more than six decades ago. The political and social circumstances of the region where AFSPA is being applied have dramatically changed over the years and therefore, the very nature of the law- amend or scrap the act altogether so as to suit the current political- social scenario of the day.

The Final Word on AFSPA:

Finally, it can be said that the provisions of the act which was envisaged as a temporary measure to tide away with an internal disturbance kind of a situation that is, the insurgency problem in the north eastern region of India has come to be frequently misused, overstepping the limits of the Constitution of India.

History is replete with examples of blatant violation of the Constitution and attempt to circumvent its provisions by the armed forces, and therefore, it can be concluded that AFSPA has come to be used by the Centre as a weapon to tyrannise the civilians of particular regions and in essence impose some kind of Indian-ness on those kind of section which are socio-culturally, ethnically different from the rest of Indians

While the Supreme Court in the 1998 judgment was unwilling to defy the diktats of the state and has upheld the validity of the act despite surpassing the limits of the Constitution and issued certain guidelines to prohibit the armed forces from committing atrocities and abuse of human rights but in reality, this is not observed in practice.

Therefore, the mischief for which the act has been enacted to deal with, by giving unfettered powers and immunity to the armed forces have left the innocent civilians in a constant state of fear and trauma, as the armed forces have wreaked havoc and terror on the citizens.

This is substantiated by the fact that have been numerous accounts of civilian casualties and human rights abuse by the armed forces in those regions as aforementioned. But nothing has been done to investigate into such matters or punish the penetrators which means the armed forces can go scots free because of the immunity that the act provides to them even today.

Hence, the common belief that The enactment of AFSPA has deeply affected and terrorized the innocent civilians as it has led to deprivation of human dignity and human rights, distorting the constitutional provisions and also leading to inequitable distribution of socio-political justice in India" has been proven to be correct time and again and the provisions of AFSPA remain nebulous.

The withdrawal of AFSPA from Tripura, Meghalaya and Arunachal Pradesh in recent years is a step in the right direction, yet, a lot needs to be done.

Some of the recent orders of the SC from 2013- 2016 such as the Extra Judicial Execution Victim Families Association and Anr. V UOI marked a departure from the trend up until then. This shows that the SC has taken a right step in the direction wherein the SC held that deployment of armed forces in the regions declared to be disturbed areas entail some kind of internal disturbance in the region which is a temporary kind of situation so as to restore public order and peace which is different from a war like situation altogether and therefore to deploy them for an indefinite time and to grant them absolute immunity which gives room for arbitrariness and excessive power is absolutely unjustified and illegal.

Judge Gavel

Even though the constitutional validity of AFSPA has been held to be valid, the correct step would be to repeal the draconian act altogether for being a bad law and going against the basic tenets of the constitution and posing a threat to the overall democratic ethos of our nation. Therefore, it is the case of the researcher that a colonial legislation like AFSPA is no longer necessary as the socio-political landscape of the region as well the problem of militant activities have significantly reduced today.

AFSPA is not an emergency piece of legislation at all. If it’s impossible to scrap the law altogether, some suggestions can be made with regard to the language and provisions of AFSPA itself, to prevent abuse altogether. It is submitted that the blatant and frequent misuse of the provisions of the act definitely warrants an amendment, as that will ensure that constitutional safeguards are not overstepped by the Armed Forces.

Attached below is a PDF file containing all the resources that inspired Part-I and Part-II of our analytical coverage of the Armed Forces (Special Powers) Act, 1958:

AFSPA- Resources
Download PDF • 259KB

Thank you for reading! :)

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