Challenges and Controversies: The AFSP Act’s Intersection with Human Rights

Few laws in independent India have generated as much controversy as the Armed Forces Special Powers Act (AFSPA), 1958. Enacted to help the Indian state manage armed insurgencies in “disturbed areas,” AFSPA hands extraordinary powers to the armed forces – powers that critics argue have been repeatedly used to violate the very rights the Constitution was designed to protect. For decades, families in Manipur, Nagaland, Jammu & Kashmir, and other conflict zones have lived under this law’s shadow, and the legal, political, and human rights debate around it refuses to die down.

What AFSPA actually does: a quick recap 🔗

Before examining the controversies, it helps to understand what AFSPA empowers security forces to do. Under Section 4 of the Act, armed forces personnel – including non-commissioned officers – can use force, including lethal force, against anyone violating law in a notified disturbed area. They can arrest without a warrant based on mere suspicion, search premises without prior judicial authorisation, and destroy structures suspected of being used by armed groups. Crucially, Section 6 provides that no prosecution or legal proceedings can be initiated against any person acting under the Act without the prior sanction of the Central Government. This combination of broad powers and near-blanket immunity is at the heart of the human rights debate.

The core human rights concerns 🔗

Extrajudicial killings and fake encounters 🔗

The most grave allegation against AFSPA is that it has enabled extrajudicial killings on a significant scale. Human Rights Watch documented how soldiers equipped with AFSPA’s powers have killed, raped, tortured, and caused enforced disappearances of Indian citizens across five decades – effectively without fear of prosecution. The numbers are not abstract: as recorded in Supreme Court proceedings, over 1,500 extrajudicial killings were attributed to AFSPA operations in Manipur alone by 2020. In 2012, the Extra Judicial Execution Victim Families Association (EEVFAM) – a trust formed by women who lost sons and husbands to alleged fake encounters – filed a writ petition before the Supreme Court alleging 1,528 such deaths in Manipur between 1979 and 2012.

Arbitrary detention and torture 🔗

AFSPA’s arrest provisions are vague by design. Section 4(c) allows soldiers to arrest anyone on mere suspicion that a cognizable offence has taken place or may take place. The Act provides no specific time limit for handing arrested persons to the nearest police station – Section 5 vaguely says this should happen “with the least possible delay.” In practice, this has meant that detainees are often held in army barracks for extended, undefined periods, where they are subjected to torture and coercive interrogation with no access to legal recourse. Because the AFSPA immunity shield makes civil suits near-impossible without Central Government sanction, victims have virtually nowhere to turn.

The immunity problem: a culture of impunity 🔗

The most structurally damaging aspect of AFSPA is the culture of impunity it creates. According to the International Commission of Jurists, no member of the armed forces has ever been successfully prosecuted in a civilian court for acts committed under AFSPA – decisions on granting prosecution sanction take many years and are routinely denied. A Right to Information application filed by the Commonwealth Human Rights Initiative revealed that of 186 complaints of rights violations received between 2012 and 2016, the Home Ministry did not publicly disclose how many were found to be true. When internal military courts handle complaints, proceedings are not public and judgments are not published, making accountability effectively invisible.

What the courts have said 🔗

The constitutional validity of AFSPA was upheld by the Supreme Court in the landmark Naga People’s Movement of Human Rights v. Union of India (1998). However, the Court simultaneously imposed important safeguards: disturbed area status must be reviewed every six months, armed forces must use only the minimum force necessary, and the immunity under Section 6 is not absolute. The Court’s clearest rebuke of AFSPA-era impunity came in Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2016). The Supreme Court held that use of excessive or retaliatory force is not permissible even in disturbed areas declared under AFSPA – and even against militants or terrorists. The court observed that “it does not matter whether the victim was a common person or a militant or a terrorist… the law is the same for both.” The court directed the CBI to investigate 98 of the alleged Manipur killings and declared that every death caused by security force action in a disturbed area requires mandatory inquiry.

In 2013, the Santosh Hegde Committee – set up by the Supreme Court to examine six of the 1,528 Manipur killings – reported that five of the six encounters were not genuine, that disproportionate force had been used, and that the victims had no known criminal record. The committee confirmed that AFSPA had created a framework that gave sweeping powers without granting citizens adequate protection against their misuse.

International and domestic pressure for reform 🔗

Criticism of AFSPA has not been limited to Indian courts and civil society. Multiple United Nations human rights bodies – including the Human Rights Committee (1997), the Committee on the Elimination of Discrimination against Women (2007, 2014), the Special Rapporteur on extrajudicial executions (2006, 2013, 2015), and the Special Rapporteur on the situation of human rights defenders (2012) – have called for AFSPA’s repeal or significant amendment. In 2012, the UN Special Rapporteur on extrajudicial executions, after visiting Kashmir, described AFSPA as “hated,” “draconian,” and a clear violation of international law.

Domestically, the most significant review was carried out by the Justice B.P. Jeevan Reddy Committee, established by the UPA government in 2004 in the wake of intense public agitation following the death of Thangjam Manorama Devi while in Assam Rifles custody. The committee submitted its report in 2005, unanimously recommending that AFSPA be repealed forthwith, describing it as “a symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness.” The committee suggested that necessary counterinsurgency provisions could instead be incorporated into the Unlawful Activities (Prevention) Act, 1967. The Second Administrative Reforms Commission in 2007 endorsed this recommendation. Despite a decade of deliberation, the government formally rejected the committee’s recommendation.

The argument for retaining AFSPA 🔗

It would be incomplete to discuss AFSPA only through the lens of criticism. The government and security forces have consistently argued that the law is essential in regions where insurgent groups are heavily armed, well-funded – sometimes with foreign support – and capable of inflicting serious casualties on state police. As analysts at Gateway House note, the Indian Army is deployed in these regions only as a last resort, after ordinary policing has failed against organised armed rebellion. In such contexts, the argument goes, requiring soldiers to obtain warrants before searches or arrests would give insurgents the time to escape or rearm. The immunity provision is defended as necessary to protect soldiers from politically motivated prosecutions that could undermine operational effectiveness and morale. Additionally, the Supreme Court itself has repeatedly upheld AFSPA’s constitutionality, recognising that extraordinary security challenges may require extraordinary legal tools – subject to meaningful safeguards.

The criminal justice system under strain 🔗

AFSPA creates a structural problem for India’s criminal justice system. In disturbed areas, the ordinary framework of the Code of Criminal Procedure (CrPC) is effectively suspended for security force actions. Arrests without warrants, searches without judicial authorisation, and the near-impossibility of civilian prosecution all bypass the procedural safeguards that the CrPC is designed to guarantee. As the South Asian Human Rights Documentation Centre has argued, this creates a two-tier legal system where residents of disturbed areas do not enjoy equal protection before the law – a right guaranteed under Article 14 of the Constitution and Article 26 of the International Covenant on Civil and Political Rights (ICCPR). Additionally, since army court-martial proceedings are not published, the public accountability that is fundamental to any credible criminal justice system is absent.

The path forward: reform, repeal, or replacement? 🔗

The debate around AFSPA has produced several reform proposals. The Jeevan Reddy Committee’s recommendation was integration of necessary provisions into the UAPA with stronger safeguards. The Supreme Court’s 2016 direction for mandatory inquiry into every security force-caused death is a step toward judicial oversight. Other proposals include phased withdrawal from areas where insurgency has significantly reduced (as was done in Tripura in 2015 and Meghalaya in 2018), presenting arrested persons before a magistrate within 24 hours, creating independent civilian grievance cells, and restricting AFSPA to specific districts rather than entire states. What most reform proposals agree on is that the current architecture – broad powers, weak accountability, and immunity that is effectively permanent – is incompatible with the constitutional guarantees that Indian citizens in disturbed areas are entitled to claim.

What do you think? Can a democracy justifiably suspend standard criminal justice procedures in conflict zones indefinitely, or must security and rights protection always operate in tandem? If AFSPA were to be repealed, what legal framework – if any – should replace it to address genuine counterinsurgency needs while ensuring accountability?

References

1. https://en.wikipedia.org/wiki/Armed_Forces_(Special_Powers)_Act
2. https://www.hrw.org/legacy/backgrounder/2008/india0808/india0808.htm
3. https://www.pmfias.com/afspa/
4. https://www.icj.org/india-repeal-armed-forces-special-powers-act-immediately/
5. https://indiankanoon.org/doc/83144198/
6. https://www.livelaw.in/treading-tramlines-judicial-review-supreme-court-afspa-extra-judicial-killings-manipur
7. https://www.hrw.org/news/2017/07/15/india-top-court-orders-manipur-killings-inquiry
8. https://sabrangindia.in/repeal-draconian-afspa-law-justice-jeevan-reddy-committee-2005/
9. https://www.gatewayhouse.in/afspa-national-necessity-or-human-rights-violation/
10. https://www.kljp.org/articles/armed-forces-special-powers-act-a-stuy-in-national-security-tyranny