AFSPA: Human Rights & Apex Court View

Sections Opposed by Activists

Human rights activists primarily oppose the following sections of AFSPA:

• Section 4(a): This section grants armed forces the power to use force, even to the extent of causing death, if they are convinced it is necessary for maintaining public order. Activists argue this provides excessive and unaccountable power, leading to extrajudicial killings.
• Section 4(b): Allows security forces to search premises and arrest individuals without a warrant, based on “reasonable suspicion.” Critics contend that ‘reasonable suspicion’ is vaguely defined and easily abused, leading to arbitrary arrests and detentions.
• Section 6: Provides immunity from prosecution for security personnel unless sanctioned by the central government. This effectively shields them from accountability for alleged human rights violations.
• Lack of Independent Investigation: The Act doesn’t mandate independent investigations into alleged violations, often leading to complaints being investigated by the very forces accused of wrongdoing.

Apex Court’s View & Critical Evaluation

The Supreme Court has addressed AFSPA in several landmark cases. In Naga People’s Movement for Human Rights v. Union of India (1998), the Court acknowledged concerns about the Act’s broad powers but upheld its constitutional validity. The Court stated that AFSPA is a necessary evil to deal with situations of armed conflict and insurgency. However, it emphasized the need for the armed forces to act in accordance with the law and respect human rights.

Further, in Extra Judicial Execution Victim Families Association v. Union of India (2016), the Court reiterated the importance of following due process and ensuring accountability. It directed the investigation of alleged fake encounters in Manipur by a Special Investigation Team (SIT). The Court also emphasized that the ‘reasonable suspicion’ standard under Section 4(b) must be genuine and not merely a pretext for arbitrary action.

However, the Court has consistently refrained from completely striking down AFSPA, recognizing the legitimate security concerns in disturbed areas. The argument is that removing AFSPA without addressing the underlying causes of insurgency could lead to a security vacuum and further instability. Critics argue that this justification perpetuates a cycle of violence and impunity. They point to the lack of progress in addressing the root causes of conflict and the continued allegations of human rights abuses as evidence of the Act’s failure.

Balancing Security and Human Rights

The debate surrounding AFSPA highlights the inherent tension between national security and the protection of fundamental rights. While the state has a legitimate duty to maintain law and order, this duty must be exercised within the framework of the Constitution and international human rights law. The current framework, as embodied by AFSPA, is often perceived as tilting heavily in favor of security, at the expense of individual liberties.

A potential solution lies in reforming AFSPA to address the concerns raised by activists while retaining its essential elements for dealing with insurgency. This could involve:

• Narrowing the scope of Section 4(a) to explicitly prohibit the use of excessive force.
• Strengthening the provisions for independent investigation of alleged violations.
• Establishing a clear and transparent process for granting sanctions for prosecution.
• Reducing the geographical area covered by AFSPA as the security situation improves.