Examine the Constitutionality of AFSPA.
Armed Forces (Special Powers) Act, 1958 is an act of the Parliament of India that grants special powers to the Indian Armed Forces to maintain public order in disturbed areas. Currently, it is applicable in states of Assam, Nagaland, Manipur {excluding Imphal Municipal Council Area}, and some districts of Arunachal Pradesh.
Need for AFSPA
- Nature of insurgency
The insurgency in northeast is very complex. It is difficult to distinguish militants from civilians, resulting in complexities for armed forces.
- Reduce political interference
By giving large power to the armed forces, the political interference can be negated. Armed forces will be able to take independent decisions.
Issues with AFSPA
- Human rights violation
Critics of AFSPA argue that the law has been a tool to violate human rights. Victims of the law do not get any justice.
- Furtherance of feeling of Alienation
The AFSPA has further created divide between northeastern states and mainland India. People of the area believe that the law targets them deliberately.
- Fake encounters
Fake encounters are performed under the legal protection of AFSPA. The law ensures that culprits are not brought to justice.
- Bypassing States
The law bypasses the state while making decisions. Decisions are made by the armed forces without taking state government into confidence.
There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement (Naga People’s Movement of Human Rights v. Union of India).
In this judgement, the Supreme Court arrived at certain conclusions including:
- a suo-motto declaration can be made by the Central government; however, it is desirable that the state government should be consulted by the central government before making the declaration;
- AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’;
- the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired;
- while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action,
- the authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.
In 2016, the Supreme Court has said that the Army is not immune to any prosecution by criminal court if found committing any offence.
Road ahead
- AFSPA law may be necessary to ensure law and order in the northeast but more accountability and sensibility elements needs to be incorporated in it for its fair execution.
- The government has to take recommendation of Justice B.P. Jeevan Reddy Commission, ARC as well as Santosh Hegde Commission.
Thus, AFSPA is a clear example of martial law that undermines democratic principles and violates individual rights.
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