Abstract
This article is written by Bristi Ghosh : Sister Nivedita university; Bcom.LLB(h) 4th year during LeDroit India internship.
The AFSPA, 1958, gives the armed forces special powers in “disturbed areas” to tackle insurgency. It started in the Northeast and later extended to Jammu & Kashmir. Rooted in British colonial laws, it has been widely criticized for human rights violations. Protests, especially after the 2004 Manorama case in Manipur, pushed for its repeal. While the Supreme Court upheld it in 1997, it called for periodic reviews and safeguards. Activists and groups argue that it suppresses basic rights, but the government and military see it as essential for national security. Despite ongoing debates, access to affected regions remains restricted, and concerns about abuses persist. Amnesty International believes AFSPA violates international human rights laws, allowing extrajudicial killings, enforced disappearances, torture, and arbitrary detention, especially in Manipur and Jammu & Kashmir. Decades of insurgency in these regions have led to widespread human rights abuses by security forces, with little accountability. Reports highlight sexual violence, illegal detentions, and killings, often ignored by authorities. The UN Human Rights Committee has criticized India for relying on laws like AFSPA, which restrict fundamental rights. Despite numerous reports from Amnesty and local human rights groups, there’s no proper assessment of these violations, and impunity remains a major issue.
Keywords: AFSPA, Human Rights violation, insurgency, right to life , Northeast India and jammu and kashmir
Introduction
The Armed Forces (Special Powers) Act, 1958 (AFSPA) is a law enacted to address insurgency and maintain order in regions classified as “disturbed areas,” including large parts of Northeast India and Jammu & Kashmir. It grants special powers to the armed forces, allowing them to arrest without a warrant, search properties, and use lethal force under specific conditions. While the government considers it necessary for national security and counterinsurgency operations, the Act has faced strong criticism for its alleged role in human rights violations. Reports of extrajudicial killings, enforced disappearances, torture, and sexual violence have sparked widespread protests and demands for its repeal.
One of the major concerns surrounding AFSPA is the immunity it provides to security personnel, making it difficult to hold individuals accountable for alleged abuses. No legal action can be initiated against military personnel for actions taken under the Act without approval from the central government, which critics argue fosters a culture of impunity. Over the years, the Supreme Court of India has attempted to introduce safeguards, such as periodic reviews of “disturbed area” declarations and legal limitations on excessive use of force. However, concerns remain that the Act does not align with international human rights standards, including those outlined in treaties to which India is a signatory.
The law has been a point of contention between security considerations and human rights advocacy. While authorities argue that AFSPA is essential for combating insurgency and ensuring territorial integrity, human rights groups and civil society activists emphasize the need for security measures that also protect fundamental rights. In the past, India has repealed controversial security laws like the Prevention of Terrorism Act (POTA) due to concerns over misuse, leading to growing calls for a similar reconsideration of AFSPA. The debate continues as policymakers, legal experts, and activists push for either major reforms or the complete repeal of the Act, ensuring a balance between national security and human rights protection.
What is AFSPA?
AFSPA gives special powers to the army and police in areas declared “disturbed” by the government. It allows them to shoot, search homes, and destroy property suspected of aiding insurgents.
The Act is enforced in regions facing militancy or insurgency that threaten India’s security. Security forces can also arrest people without a warrant based on reasonable suspicion and have legal immunity for their actions.
While the government sees AFSPA as necessary to fight insurgency, critics argue it has led to human rights violations.
Historical Background of AFSPA
Pre-Independence
AFSPA traces back to British rule, first introduced as an ordinance in 1942 during the Quit India Movement to suppress protests.
After violent uprisings, Viceroy Linlithgow gave the military broad powers to control disturbances.
Similar laws were enforced in Bengal, Assam, East Bengal, and the United Provinces in 1947 to tackle post-partition unrest.
Post-Independence
1958 (Assam & Manipur): Enacted to control Naga insurgency after rebels boycotted elections and set up a parallel government. It later extended to all Northeastern states.
1983 (Punjab & Chandigarh): Introduced to curb the Khalistan movement, allowing security forces to search vehicles, seize property, and break locks. Withdrawn in 1997, though Chandigarh remained under the Disturbed Areas Act until 2012.
1990 (Jammu & Kashmir): Enforced to counter rising militancy. J&K had its own Disturbed Areas Act (1992-1998), but AFSPA continued under Section 3. It remains in force despite controversy.
Violation Of International Human Rights Law
The Armed Forces (Special Powers) Act (AFSPA) has been widely criticized for violating international human rights laws, particularly in Jammu & Kashmir and the Northeast. It grants sweeping powers to security forces, which many believe lead to serious abuses like extrajudicial killings, disappearances, torture, and sexual violence. Critics argue that AFSPA undermines fundamental rights such as the right to life, liberty, security, and protection from torture, all of which are guaranteed under the International Covenant on Civil and Political Rights (ICCPR)—a treaty India has been a party to since 1979.
For decades, armed conflicts have plagued Manipur, Nagaland, Assam, and Jammu & Kashmir, fueling violence and insecurity. The dissolution of the Jammu & Kashmir State Assembly in 1990 further escalated tensions, leading to heavy military intervention and a high number of casualties, though exact figures remain unclear. In the Northeast, conflicts originally driven by demands for self-determination have become more complex, involving ethnic clashes, armed factions, and socio-economic grievances like underdevelopment, corruption, and illegal trafficking. These factors have exacerbated violence and human rights abuses in the region.
Reports suggest a consistent pattern of violations under AFSPA. In Manipur alone, thousands of civilians, militants, and security personnel have lost their lives since the 1980s. Local and international organizations, including Amnesty International and the Asian Centre for Human Rights, have documented numerous cases of rape, sexual violence, illegal detentions, and extrajudicial executions, particularly between 1995 and 2004. Despite the Supreme Court’s intervention to impose some restrictions—like reviewing the “disturbed area” status every six months—critics argue that the law continues to enable impunity for security forces.
The United Nations Human Rights Committee (UNHRC) has repeatedly raised concerns over India’s reliance on special security laws, including AFSPA, the Public Safety Act, and the National Security Act. These laws have been linked to serious human rights violations by both state security forces and militant groups. There is no comprehensive assessment of these violations in the Northeast, but numerous independent reports indicate a widespread pattern of abuse.
While the Indian government maintains that AFSPA is necessary to combat insurgency, human rights groups argue that it has led to severe abuses with little accountability. With growing pressure from activists, legal experts, and civil society, there is an ongoing debate on whether AFSPA should be reformed or repealed—similar to the Prevention of Terrorism Act (POTA), which was abolished due to concerns over misuse. The challenge remains finding a balance between national security and protecting human rights in these conflict-ridden regions.
How AFSPA Violates Fundamental Rights under Indian constitution
The Armed Forces (Special Powers) Act (AFSPA) has been widely criticized for giving unchecked power to security forces, often leading to serious human rights violations. While the Act was introduced to maintain law and order in “disturbed areas,” it has instead become a tool for arbitrary killings, unlawful detentions, and excessive force. This directly violates fundamental rights guaranteed by the Indian Constitution, particularly Article 21 (Right to Life and Personal Liberty) and Article 22 (Protection Against Arbitrary Arrest and Detention).
Violates Article 21: Right to Life and Personal Liberty
Article 21 of the Indian Constitution states:
“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
But Section 4(a) of AFSPA allows security forces to shoot to kill anyone based only on suspicion—without requiring clear evidence of wrongdoing. This violates the basic principle of justice, where the use of force must be justified, reasonable, and proportional. The Supreme Court ruling in Maneka Gandhi v. Union of India has made it clear that laws restricting fundamental rights must be fair and just, but AFSPA completely disregards this.
Similarly, Section 4(c) of AFSPA allows security forces to arrest and detain anyone without a warrant, simply based on the belief that they might commit an offense. While the Supreme Court’s Naga People’s Movement judgment mandates that detainees must be handed over to the nearest police station within 24 hours, reports from human rights groups suggest that this rule is often ignored. People are illegally detained for long periods, sometimes even tortured, without any legal recourse.
Violates Article 22: Protection Against Arbitrary Arrest & Detention
Article 22 of the Constitution is meant to protect individuals from unlawful detention. It states that:
Every arrested person has the right to know why they are being detained.
They must be given a fair chance to challenge their arrest.
However, AFSPA does the opposite. It allows security forces to arrest people indefinitely without informing them of any charges. Even worse, Section 6 of AFSPA grants complete immunity to armed forces, meaning no legal action can be taken against them without approval from the Central Government. This creates a culture of impunity, where security forces can act without fear of consequences. Many victims of wrongful arrest, torture, and extrajudicial killings are denied justice because their cases never make it to court.
The State’s Responsibility and Why AFSPA Needs Reform
The Indian Constitution places a duty on the government to protect the lives and rights of all individuals, including both citizens and non-citizens. When laws like AFSPA give unchecked power to security forces, they go against the very principles of justice, democracy, and human dignity.
While national security is important, it should not come at the cost of fundamental rights. Many experts, activists, and legal scholars believe that AFSPA must be repealed or significantly amended to ensure that law enforcement remains accountable and that innocent people are not wrongfully harmed. Protecting the country should not mean sacrificing the basic human rights of its own people.
Case laws related AFSPA and human rights
- NAGA people’s movement Of Human Rights V. Union Of India
The ruling in Naga People’s Movement of Human Rights v. Union of India highlighted the need to address extraordinary situations in disturbed areas while ensuring constitutional safeguards. The Supreme Court upheld the necessity of AFSPA for maintaining public order and national security, aligning it with Article 355, which mandates the Union to protect states from internal disturbances. However, the court also emphasized the importance of judicial scrutiny in declaring an area as disturbed to prevent arbitrary use of power, reinforcing the system of checks and balances. While the judgment acknowledged the need to balance national security with human rights protection, it fell short in addressing the misuse of extensive powers granted to the armed forces. Although the judiciary retains the authority to review the declaration of disturbed areas, its scope remains limited due to the complexity of security considerations. The court stressed the need for objective criteria and material evidence in such declarations but did not establish concrete accountability measures for human rights violations. While the judgment proposed grievance redressal mechanisms and oversight bodies, the absence of specific enforcement steps weakens the effectiveness of these safeguards.
2.Anita Thakur and Ors. v. Ersus Govt. of J&K and Ors – (Supreme Court) (12 Aug 2016)
The present writ petition concerns the alleged brutal police action against migrants from Jammu & Kashmir who attempted a peaceful protest march to Delhi to voice their grievances. Upon reaching Katra, the petitioners were allegedly beaten and manhandled by police, violating their fundamental rights under Articles 14, 19, 21, and 22 of the Indian Constitution. The right to protest is protected under Article 19(1)(a), (b), and (d), ensuring freedom of speech, peaceful assembly, and movement. The petitioners argue that the police action was unconstitutional and seek criminal proceedings against the responsible officials, along with compensation for injuries suffered. Citing India’s legacy of peaceful protests, they emphasize that an unarmed demonstration should not be met with violence. The case raises serious concerns about excessive police force and the suppression of democratic rights.
The passage discusses the balance between fundamental rights and reasonable restrictions in the context of public protests and police action. While citizens have the right to speech, assembly, and movement, the state can impose reasonable restrictions under IPC and CrPC to maintain public order.
In the given case, protestors initially turned violent, but the police also exceeded their authority by continuing the use of force even after regaining control. This misuse of power violated fundamental rights, making the state liable for compensation under public law. The doctrine of sovereign immunity does not apply in cases of fundamental rights violations. The Supreme Court awarded compensation and disposed of the petitions.
Conclusion
While the government has a responsibility to maintain law and order and protect citizens from insurgency and terrorism, it must do so in a just and humane manner. Laws like AFSPA, which grant unchecked powers to security forces, have failed to achieve their primary objective of restoring peace. Instead, they have led to widespread human rights violations, leaving innocent civilians caught in the crossfire. The situation in Manipur, where thousands of lives have been lost and armed groups continue to rise, is a clear example of how AFSPA has not only failed but has also worsened the conflict.
The government must recognize that simply increasing military presence is not a sustainable solution. While national security is crucial, it cannot come at the cost of fundamental rights and human dignity. If repealing AFSPA entirely is not an option, then urgent reforms are necessary. Security forces should be properly trained under international human rights standards, and their actions should be subject to public accountability. Transparency in operations, better oversight mechanisms, and respect for human dignity must be prioritized.
At a time when people are becoming more aware of their rights and freedoms, it is essential for the government to take action. Justice cannot be served by violating human rights, and ensuring peace should not mean instilling fear among the very citizens it seeks to protect. Reforming AFSPA is not just a legal necessity—it is a moral imperative.
