Karthika sathyan

23IP62023

Legal Research Methodology

The Unconstitutional Nature Of AFSPA

Literature Review

The Armed Forces (Special Powers) Act (AFSPA) in India, which has faced
widespread criticism for its association with mass murders, human rights
violations, and covert brutality. The public's trust in the AFSPA has eroded over
the years, leading to calls for its repeal. However, it is acknowledged that the
security situation in certain areas remains precarious. As a result, Human rights
organizations and a significant portion of the population have protested against
the AFSPA's human rights violations and called for its repeal and the
government has not taken action due to opposition from the Army and
Ministry of Defence, key agencies responsible for security in the region. The
AFSPA is evaluated from a legal standpoint, including its constitutionality and
impact on fundamental rights.
It is argued that the Act violates human rights and fosters a militarized
approach to security. The Supreme Court's stance on the AFSPA is discussed,
with a focus on its constitutional validity and the need for accountability. Thise
literature explores the balance between security and human rights, suggesting
that a complete repeal of AFSPA without a suitable replacement could be risky
in the face of ongoing security threats. It fails to uphold the constitutional
rights of the people enduring hardship in the proclaimed area of destruction.
This paper predominantly prioritizes state security over the rights of the
people. (Rajat pachory,2022).
Recommendations for incorporating accountability measures for military
personnel and ensuring compliance with national and international human

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rights norms are provided. The importance of transparent communication
regarding ongoing cases and government responses, along with proactive
engagement with the public, is emphasized to build trust and achieve lasting
peace and it is crucial to find a balanced approach that respects human rights
and ensures security in conflict-prone regions.
The section 3 of Armed Forces Special Powers Act (AFSPA), which empowers
the Central Government to unilaterally declare an area as a "disturbed area."
The paper argues that this provision is overly broad and arbitrary, allowing the
Central Government to bypass the State government's opinion, potentially
compromising the act's objective of restoring peace and order. Moreover, the
lack of clear standards for designating an area as "disturbed" creates
opportunities for unchecked discretion, as the provision is kept out of the
ambit of judicial review.
It highlights the issue of unconstitutional vagueness and ambiguity in the
expression 'Disturbed Area,' which violates the doctrine of void-for-vagueness.
This doctrine, crucial in ensuring the clear definition and enforcement of
legislation, is overlooked in Section 3 of AFSPA, further contributing to
arbitrariness and potential misuse of power.
Additionally, the it discusses the violation of the doctrine of proportionality,
focusing on Section 4(a) of AFSPA, which grants extensive powers to certain
officers, including the use of deadly force. This section, the paper argues, leads
to disproportionate use of force and is in violation of the right to life protected
under Article 21 of the Indian Constitution. The lack of checks and balances in
this provision is also a matter of concern.
Furthermore, the paper delves into the violation of the principle of natural
justice in Section 6 of AFSPA, which provides immunity to armed forces officers
from legal proceedings, prosecution, or suits for actions taken under the act.
This immunity, the paper argues, is a violation of the rule against bias, as the
same authority deploying the armed forces is entrusted with deciding whether
prosecution should proceed, potentially leading to biased decisions. (Swetank
Neelabhi & Anand Kamal 2021).

The Armed Forces Special Powers Act (AFSPA) in India, focusing on its
constitutional validity and implications for human rights. The primary
contention centres around Section 4 of AFSPA, which grants special powers to

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armed forces personnel in disturbed areas. The paper evaluates AFSPA's
compliance with Article 14 (equality before the law) of the Indian Constitution,
highlighting its arbitrary nature. It discusses the curtailment of fundamental
rights such as the right to life, liberty, and legal representation, as well as the
absence of clear definitions within the law, leading to potential misuse. The
paper explores the AFSPA's impact on centre-state relations, noting concerns
regarding immunity for state forces. It also addresses international human
rights obligations and calls for amendments to make AFSPA more reasonable,
just, and humane. The paper emphasizes the importance of democratic
reviews, stakeholder involvement, and alignment with international law to
address the challenges posed by AFSPA (Dr. Garima Tiwari & Karthik Sarma
2021).
AFSPA has been marred by controversy and allegations of human rights abuses,
including arbitrary detention, torture, rape, and looting by security personnel.
The Act has been criticized for violating fundamental rights, such as the right to
life (Article 21) and the protection against arbitrary arrest and detention
(Article 22) under the Indian Constitution (Aditya Verma 2018).
It examines the historical background of AFSPA, its legal provisions, and its
impact on human rights. It highlights how the Act has led to violations of
Article 21 and Article 22, denying individuals their right to life and protection
against arbitrary detention. The enforcement of AFSPA has faced resistance and
criticism, with many calling for its repeal.
Inhuman acts of AFSPA, including violence and human rights violations,
committed in Jammu and Kashmir. The constitutional validity of AFSPA, citing
landmark judgments that have questioned its legality while recognizing its
importance in certain situations. The AFSPA serves a crucial purpose in
maintaining public order and countering external threats but suggests that the
Act should adapt to changing situations. It underscores the necessity for
Special Forces to act responsibly and prioritize the safety and security of the
people. This comprehensive analysis offers valuable insights into the
multifaceted issues surrounding AFSPA in India, particularly in the context of
Jammu and Kashmir (Kuenzang Dorjii & Ramandeep Singh 2022).
The Supreme Court issued an interim order on July 8, 2016, in the case of
'Extra-Judicial Execution Victim Families Assn. v. Union of India, addressing
alleged fake encounters and extra-judicial executions conducted by the
Manipur Police and the Union's armed forces, including the Army.
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Subsequently, in 2017, another order was passed. These rulings have been
widely celebrated as significant advancements in the realm of human rights
While the Court's meticulous examination of the procedural aspects and the
extent of encounter killings in regions governed by the Armed Forces (Special
Powers) Act (AFSPA) is certainly commendable, it regrettably falls short of
producing substantial changes in the prevailing on-ground realities. (Parggya
Surana2018).

This legislation has been heavily criticized for its broad powers granted to the
armed forces, potentially leading to the violation of fundamental rights
guaranteed by the Indian constitution. The study critically assesses the
necessity and proportionality of these powers in light of the prevailing
circumstances
The paper also explores the reasons behind the growth of insurgency in the
North East, including issues related to identity, historical neglect, and the influx
of illegal migrants. It emphasizes the impact of these factors on the security
situation in the region. While international conventions and treaties advocate
for the protection of human rights, the paper assesses how the actual
enforcement of these principles falls short in India, particularly in cases where
police, military, and paramilitary forces are accused of human rights violations.
The judicial response to AFSPA is discussed, highlighting past challenges to the
Act's validity and the Supreme Court's rulings. (Prasenjit Borkakoti 2016).

The contentious issue of the Armed Forces (Special Powers) Act (AFSPA) in
India, which has been a subject of ongoing debate and the persistent violations
of human rights, incidents of mass violence, and the perceived failure of
successive governments to address the issues surrounding AFSPA. It
underscores the urgent need to reassess the necessity of AFSPA in a democratic
nation and evaluate its benefits for the armed forces. Detailed provisions of
AFSPA are examined, highlighting the extensive powers it grants to the armed
forces, such as the authority to arrest individuals without warrants, conduct
searches without warrants, and destroy structures used for attacks. The paper
also delves into the judicial perspective, including challenges to the
constitutionality of AFSPA and Supreme Court rulings upholding its validity.

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The critique of AFSPA is a central theme, with a focus on civil society groups,
political organizations, and human rights bodies opposing the act. Instances of
abuse, exploitation, harassment, and rape of citizens under AFSPA are
discussed, as well as violations of international human rights standards. Various
expert recommendations, including calls for the repeal of AFSPA and its
integration into other legislation, are explored (Aman Bharathi 2022).
There exist laws that are inconsistent with these rights, such as the Armed
Forces Special Powers Act (AFSPA) of 1958. AFSPA is aimed at maintaining
public order but conflicts with Article 19 and 22 of the Indian Constitution,
which provide for the right to freedom. Enacted during colonial rule to
suppress the Quit India movement, AFSPA is considered arbitrary and grants
significant powers to the armed forces.
the constitutional validity of AFSPA, as challenged in the case of Naga People's
Movement of Human Rights vs. Union of India. The Supreme Court upheld
AFSPA's validity, citing the 42nd constitutional amendment, which added entry
2A to the 7th schedule, granting the central government the power to enact
such laws. The paper examines whether the central government has this
authority under list 1, as public order falls under list 2 (entry 1), which pertains
to state lawmaking.
The Supreme Court's opinion is analysed, including the guidelines it laid down,
such as limiting the duration of arrest or detention, allowing the use of force
only when a detainee attempts to escape, handing over detainees to the
nearest police station, and avoiding torture for obtaining information or
confessions. The paper also highlights that only armed forces personnel can be
arrested under AFSPA.
Further analysis delves into the law's main purpose of maintaining public peace
and controlling violent situations. A committee formed in 2005 recommended
amendments in line with human rights, but the government failed to act upon
these suggestions. Various court cases are discussed, emphasizing the need for
adherence to human rights and the right to life, including the right to live with
human dignity (Surya Chauhan 2022).
The Armed Forces Special Powers Act (AFSPA) from Indian, international, and
comparative law perspectives. It highlights how AFSPA contravenes both Indian
and international legal standards. In the Indian context, AFSPA is criticized for
violating constitutional rights, such as the right to life and equality before the

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law. International law, including the International Covenant on Civil and
Political Rights, is invoked to underscore the violation of fundamental human
rights, particularly the right to life and the prohibition of torture.
Comparatively, the paper draws parallels with the British armed forces'
presence in Northern Ireland, emphasizing the need for legal safeguards and
adherence to international humanitarian law in conflict zones. The analysis
concludes that AFSPA raises serious legal and human rights concerns and calls
for its repeal to ensure justice, equality, and the protection of human rights in
conflict-affected regions (Sampark Jenamani 2012).