Points to Remember:
- AFSPA’s controversial sections: Section 4 (powers of arrest and search), Section 5 (use of force), Section 6 (protection of persons acting under the Act).
- Human rights violations alleged under AFSPA: extrajudicial killings, custodial torture, disappearances.
- Supreme Court’s stance: Emphasis on accountability, due process, and limitations on AFSPA’s application.
- Balancing national security and human rights: The core dilemma in the AFSPA debate.
Introduction:
The Armed Forces (Special Powers) Act, 1958 (AFSPA) is a controversial law granting sweeping powers to the Indian armed forces in designated “disturbed areas.” Human rights activists consistently argue that AFSPA’s provisions are draconian, leading to widespread human rights abuses. The Act’s application, particularly in regions like Jammu & Kashmir and the Northeast, has been a subject of intense debate, legal challenges, and social activism. This response will analyze the specific sections of AFSPA opposed by activists and critically evaluate the Supreme Court’s perspective on the Act.
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Sections of AFSPA Opposed by Activists:
Activists primarily oppose the following sections:
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Section 4: This section grants armed forces the power to arrest any person without a warrant and to enter and search any premises without a warrant. Critics argue this empowers security forces to act with impunity, violating fundamental rights guaranteed under Article 21 (right to life and personal liberty) and Article 22 (protection against arrest and detention) of the Indian Constitution. The lack of judicial oversight in these arrests and searches is a major concern.
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Section 5: This section allows the armed forces to use force, even to the extent of causing death, against any person acting in contravention of law or against any person who is reasonably suspected to be acting in contravention of law. Activists argue this provision legitimizes extrajudicial killings and encourages a culture of impunity. The “reasonable suspicion” clause is seen as vague and susceptible to abuse.
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Section 6: This section provides immunity to members of the armed forces from prosecution for acts committed under the Act, unless the Central Government gives its consent for prosecution. This near-absolute immunity is a major point of contention, as it severely restricts accountability for human rights violations. Activists argue this effectively shields perpetrators from justice.
Supreme Court’s View:
The Supreme Court has addressed AFSPA in several cases, acknowledging the need to balance national security concerns with fundamental rights. While the Court has upheld the constitutionality of AFSPA in principle, it has consistently emphasized the need for accountability and adherence to due process. Key pronouncements include:
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Emphasis on accountability: The Court has stressed the importance of investigating allegations of human rights abuses committed under AFSPA and bringing perpetrators to justice. It has criticized the lack of effective mechanisms for accountability and the excessive reliance on Section 6 for shielding personnel.
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Limitations on AFSPA’s application: The Court has called for a judicious and targeted application of AFSPA, emphasizing that it should not be used as a blanket authorization for human rights violations. The Court has highlighted the need for clear guidelines and stricter oversight to prevent misuse.
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Due process: The Court has reiterated the importance of upholding fundamental rights, even in areas designated as “disturbed areas.” It has emphasized the need for fair investigations, transparent procedures, and access to justice for victims of alleged human rights abuses.
Balancing National Security and Human Rights:
The core challenge lies in balancing the need for national security with the protection of fundamental human rights. AFSPA’s proponents argue it is essential for maintaining order and combating insurgency in volatile regions. However, critics argue that the Act’s draconian provisions undermine the rule of law and exacerbate human rights violations, ultimately undermining long-term peace and stability. The Supreme Court’s approach reflects this delicate balance, attempting to uphold the law while simultaneously ensuring accountability and respect for fundamental rights.
Conclusion:
The sections of AFSPA most opposed by human rights activists â Sections 4, 5, and 6 â grant extensive powers to the armed forces with limited accountability. The Supreme Court, while acknowledging the need for AFSPA in certain contexts, has consistently stressed the importance of accountability, due process, and limitations on its application. The way forward requires a multi-pronged approach: strengthening internal mechanisms for accountability within the armed forces, establishing independent and effective investigation mechanisms, ensuring access to justice for victims, and reviewing the scope and application of AFSPA to minimize its potential for abuse. A holistic approach that prioritizes both national security and the protection of fundamental human rights is crucial for achieving lasting peace and justice in affected regions. This requires a commitment to constitutional values and a continuous dialogue between the government, security forces, civil society, and the judiciary.