Q17. Human right activists constantly highlight the fact that the Armed forces (Special Powers) Act, 1958 (AFSPA) is a draconian act leading to cases of human right abuses by security forces. What sections of AFSPA are opposed by the activists. Critically evaluate the requirement with reference to the view held by Apex Court.

Model Answer:

Introduction

The Armed Forces (Special Powers) Act (AFSPA), 1958, grants special powers to the armed forces in “disturbed areas” to maintain public order. While the Act aims to address insurgency and internal security threats, human rights activists argue that certain provisions enable misuse and lead to human rights abuses. Debates over AFSPA involve balancing national security needs with protecting individual rights, a stance that the Supreme Court of India has also reviewed critically.

Body

Sections of AFSPA Opposed by Activists

• Section 4(a): Power to Shoot to Kill
  • This section empowers armed forces to fire upon individuals, even to the extent of causing death, if they suspect a person is acting in contravention of the law. Activists argue this power is vague, allowing indiscriminate use of force.
• Section 4(b): Power to Destroy Property
  • Security forces can destroy shelters or structures suspected to be hideouts or used for unlawful activities. Activists highlight that this can lead to the destruction of civilian property without accountability.
• Section 4(c) and (d): Arrest and Search Without Warrant
  • These sections permit arrest and search without a warrant, raising concerns about arbitrary detention, harassment, and invasion of privacy for civilians in disturbed areas.
• Section 6: Immunity from Prosecution
  • The Act grants immunity to armed forces from prosecution, suit, or any legal proceeding without prior approval from the central government. This has been widely criticized for enabling impunity, with activists claiming it obstructs justice for human rights abuses.

Critical Evaluation and Supreme Court’s View

• Necessity for National Security: Proponents argue AFSPA is essential for the armed forces to operate effectively in insurgency-prone areas, providing them the legal cover to act decisively in life-threatening situations.
• Supreme Court’s Observations: The Supreme Court has upheld the constitutionality of AFSPA but emphasised accountability. In cases like Extra Judicial Execution Victim Families Association v. Union of India, the court underscored that immunity under Section 6 does not mean blanket protection and that human rights must be upheld.
• Guidelines for Accountability: The Supreme Court directed security forces to adhere to the principles of “minimum force,” mandating inquiries into all civilian deaths, thereby attempting to limit misuse while maintaining security objectives.
• Call for Reforms: Various committees, including the Justice Jeevan Reddy Committee, recommended amendments or repeal, arguing that AFSPA fuels distrust among local populations and impedes peace efforts.

Conclusion

‍While AFSPA provides the armed forces with necessary powers in disturbed areas, the Act’s controversial provisions raise valid human rights concerns. The Supreme Court has highlighted the need for accountability, urging a balance between security and individual rights. Reforming AFSPA, perhaps by instituting clearer guidelines and enhanced accountability mechanisms, could address these concerns while preserving its intent to maintain order in sensitive regions.

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