Q.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.

Body

Sections of AFSPA Opposed by Human Rights Activists

graph TD
    AFSPA["AFSPA Sections Opposed by Activists"]
    AFSPA --> S4a["Section 4(a)<br>• Provision: Use of force up to causing death<br>• Criticism: Promotes extrajudicial killings"]
    AFSPA --> S4b["Section 4(b)<br>• Provision: Arrest without warrant on suspicion<br>• Criticism: Violates personal liberty & leads to arbitrary detentions"]
    AFSPA --> S4d["Section 4(d)<br>• Provision: Destruction of property suspected of being used by rebels<br>• Criticism: Leads to arbitrary destruction of civilian property"]
    AFSPA --> S6["Section 6<br>• Provision: Legal immunity from prosecution without central sanction<br>• Criticism: Fosters a culture of impunity"]

• Section 4(a):
  • Provision: Authorizes any commissioned officer, warrant officer, or non-commissioned officer to use force, even causing death, against individuals acting in contravention of laws or orders in disturbed areas.
  • Criticism: Activists argue this grants a virtual "license to kill" without accountability, leading to extrajudicial executions.
• Section 4(b):
  • Provision: Permits the arrest of any individual without a warrant based on mere suspicion of having committed or being about to commit a cognizable offense.
  • Criticism: This is seen as a direct violation of Article 21 of the Constitution, leading to arbitrary detentions and harassment.
• Section 4(d):
  • Provision: Empowers forces to enter and search premises without a warrant and destroy any structure suspected of being used as a hideout or training camp.
  • Criticism: Activists highlight that this leads to the destruction of civilian properties without due process, severely impacting innocent families.
• Section 6:
  • Provision: Grants absolute immunity to security personnel from prosecution, suit, or other legal proceedings, except with prior sanction from the Central Government.
  • Criticism: This is the most heavily criticized section, as central sanctions are rarely granted, fostering a culture of impunity where human rights violations go unpunished.

Requirement and Apex Court's View

• Requirement for AFSPA:
  • Argument for Retention: Proponents argue that AFSPA is indispensable for enabling the military to operate effectively in highly hostile, asymmetric warfare environments. It provides the necessary legal protection to soldiers dealing with heavily armed insurgent groups.
  • Security Perspective: In regions facing severe cross-border terrorism or deep-rooted ethnic insurgencies, the act is viewed as a vital tool to preserve territorial integrity and national sovereignty.
• Apex Court's View:
  • Judicial Oversight: The Supreme Court of India has consistently upheld the constitutional validity of AFSPA but has placed strict guardrails on its implementation. In the landmark Naga People's Movement of Human Rights vs. Union of India (1997) case, the Court ruled that while the act is constitutional, it must be applied with strict adherence to human rights guidelines and must not be used arbitrarily.
  • Investigations into Abuses: In the Extra-Judicial Execution Victim Families Association (EEVFAM) & Anr vs Union of India (2016) case, the Supreme Court ruled that there is no concept of absolute immunity. The Court directed that every allegation of encounter killings by security forces in disturbed areas must be thoroughly investigated, emphasizing that excessive force cannot be justified even in counter-insurgency operations.