Among India’s most contentious laws, the Armed Forces (Special Powers) Act (AFSPA) is perhaps the most emblematic of a troubling constitutional paradox: the ostensible protection of sovereignty at the cost of civil liberties. Originally enacted in 1958 to respond to unrest in the Naga Hills, the Act has since ossified into a legal scaffold that legitimises extraordinary state power in certain territories, where residents are citizens in name but subjects in reality. The time is ripe—indeed long overdue—to confront this legislative relic not merely as a security tool, but as a litmus test of India’s democratic maturity.
AFSPA grants sweeping powers to the armed forces in areas declared “disturbed” under Section 3 of the Act. The legal threshold for such a declaration remains dangerously vague, allowing state and central governments to renew it in perpetuity without substantive judicial review. Section 4 authorises personnel to use lethal force, conduct warrantless arrests, and search private premises—powers that would be unthinkable in other parts of the country. Perhaps most concerning is Section 6, which grants de facto immunity to security personnel by requiring central government sanction for prosecution, a requirement honoured more in the breach than the observance.
Supporters argue AFSPA is a bulwark against insurgency and indispensable to national security. Yet, over the decades, its presence has done little to resolve the very conflicts it was meant to extinguish. Instead, it has exacerbated the alienation of affected populations, fuelling cycles of violence and distrust. If anything, AFSPA has become a self-fulfilling prophecy: an instrument that perpetuates instability in the name of quelling it.
The Supreme Court’s decision in Naga People’s Movement of Human Rights v. Union of India (1998) remains the touchstone for AFSPA’s legal validation. While upholding the Act, the Court prescribed periodic review and proportional application. But these judicial caveats have proven toothless. The concept of proportionality, recognised in later rulings such as Modern Dental College v. State of Madhya Pradesh (2016), has not been meaningfully applied to AFSPA, even though the Act restricts the most fundamental of rights: the right to life under Article 21.
A significant legal turning point came in Extra Judicial Execution Victim Families Association v. Union of India (2016), where the Court—confronted with 1,528 cases of alleged fake encounters in Manipur—held that excessive use of force could not be justified merely by invoking AFSPA. Justice Lokur’s incisive observation that “democracy would be in grave danger if the armed forces are permitted to kill citizens on the mere allegation or suspicion” should have prompted legislative reform. It did not. Institutional inertia prevailed, and the legal impunity persisted.
India’s international obligations further complicate the picture. As a signatory to the International Covenant on Civil and Political Rights (ICCPR), India is bound by the principle of non-derogation from the right to life. The United Nations and several human rights bodies have consistently criticised AFSPA’s incompatibility with these obligations. And yet, India’s persistent refusal to ratify the Convention Against Torture (CAT) illustrates its ambivalence towards enforcing international human rights norms in domestic law—particularly in conflict zones.
It is neither contrarian nor naïve to assert that India must explore alternatives to AFSPA. After all, the measure of a democracy lies not in how it treats its compliant majority, but in how it safeguards the liberties of its dissenting and disaffected margins. There is precedent for state-led accountability in comparable jurisdictions. The UK’s experience in Northern Ireland—where military excesses during The Troubles were eventually met with public inquiries and reparative justice—demonstrates that security and civil liberties need not be mutually exclusive. The Saville Inquiry into Bloody Sunday, culminating in Prime Minister David Cameron’s unequivocal apology in 2010, stands in marked contrast to India’s refusal even to acknowledge the grievances of those subjected to AFSPA’s excesses.
India’s own Justice Jeevan Reddy Committee, constituted in 2005, offered a credible roadmap: repeal AFSPA and subsume essential powers under a more accountable framework like the Unlawful Activities (Prevention) Act. The report described AFSPA as “a symbol of oppression” and warned that its continuance was counterproductive to national integration. That its recommendations gather dust is not merely a bureaucratic failure but a moral abdication.
This is not to deny the complexities of asymmetric warfare, insurgency, or the dangers faced by security personnel in volatile regions. Their service and sacrifice are unquestionable. But honouring them does not require the perpetuation of a law that allows abuse without accountability. Indeed, a truly professional force should not fear oversight; it should welcome it as a sign of institutional strength.
What is required is a twofold strategy: first, replace AFSPA with a rights-respecting legal framework that grants operational flexibility within a system of robust checks and balances. Second, initiate a national dialogue on transitional justice in AFSPA-affected regions—acknowledging past wrongs, compensating victims, and restoring the social contract. Justice, long denied, must not also be forgotten.
The republic cannot afford to have zones of legal darkness where the Constitution’s radiance is obscured. The legitimacy of a nation-state rests not just on territory or military prowess, but on the consent of its people—earned through justice, equity, and dignity. AFSPA undermines all three. Its repeal would not signal weakness; it would signal constitutional courage. In a mature democracy, the rule of law must be both sword and shield. It cannot be selectively applied. It is time India reclaimed the full breadth of its constitutional promise—in every region, for every citizen.
