AFSPA Under Scrutiny: A Deep Dive Into Its Constitutional Legitimacy
- IJLLR Journal
- 4 hours ago
- 2 min read
Bhaavya Das, University of Petroleum and Energy Studies
ABSTRACT
Insurgency is a major concern in some parts of India and requires military intervention. However, balancing national security with the civil liberties of the people in such areas has always been quite a task. This entire debate imposes a grave concern on the very constitutional validity of AFSPA. The provisions of AFSPA are colonial in nature and extremely non-democratic in nature. They give the government and the Armed Forces the absolute power to curtail the very fundamental rights of the citizens, enshrined under the Indian Constitution, without any accountability to the wrong-doers in the Armed Forces. This study involves the case analysis of the repercussion of AFSPA in the north-east India and Jammu and Kashmir. The primary reason for the entire misuse of AFSPA lies in the subjectivity of the declaration of any region as a “disturbed area” given under section 3 of AFSPA, 1958. The recommended solution for the same is giving it an objective definition to ensure fairness and transparency. AFSPA is, indeed, required in some areas of the country, but with limited powers and much more accountability. Therefore, this study suggests major amendments under AFSPA, instead of advocating to entirely repeal the same.
The Armed Forces Special Powers Act, although necessary in some places and situations, systematically violates Article 14, 19 and 21 of the Indian Constitution. India’s commitment to international human rights law, including the International Covenant on Civil and Political Rights (ICCPR), is compromised by the broad, unchecked powers under AFSPA, especially those related to the right to life, protection from arbitrary arrest, and the prohibition of torture. Article 51(c) of the Indian Constitution directs the state to respect international law and treaty obligations. Hence, this study delves into the constitutional validity of AFSPA and its implications on the civil liberty of the people. It aims to propose recommendations for areas which actually do need military intervention in better ways than, currently, ensured under AFSPA.
Keywords: AFSPA, Constitutional Legitimacy, Civil Liberties, Human Rights Violations, Insurgency.
