Decades before the Nagaland Cabinet called for repeal of the Armed Forces Special Powers Act, 1958, the constitutionality of AFSPA had been challenged in the Supreme Court (Naga People’s Movement of Human Rights v Union of India, 1997).
The petitioners and also the National Human Rights Commission had argued that Parliament could not legislate on what was essentially a domain of the state — maintaining public order. The petitioners had alleged that the law was a “fraud on the Constitution” since AFSPA was a “measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352” and that it would displace the civil force of state with the armed forces. The challenge was also on the grounds that the law was arbitrary and conferred vast powers that could be misused.
A five-judge Constitution Bench unanimously upheld the law. Although the court agreed that the Constitution did provide for deployment of armed forces in aid of civil power, it held that such deployment can be permitted for a “temporary period” and “until a situation of normalcy was restored”.
The court said that while declaring a region as “disturbed area”, the opinion of the state government must be taken and there must a periodic review of the situation.
“The conferment of the said power on the Central Government regarding declaration of areas to be disturbed areas does not, however, result in taking over of the state administration by the Army or by other armed forces of the Union,” the court had said.
The court also cautioned that the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.
“A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or a suit or other proceeding should be granted under Section 6 of the Central Act.”
The 1997 verdict cemented the procedure for use of AFSPA, but the issue of its misuse still came up before courts. In 2016, a verdict by a bench of Justices Madan Lokur and U U Lalit on alleged fake encounters in Manipur held that security personnel committing crime did not enjoy absolute immunity.
“The law is very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Criminal Procedure Code,” the court said. The verdict also called for a probe into alleged 1,528 cases extra-judicial killings by security forces in Manipur during 2000-12.
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