Questioning the Constitutional validity of AFSPA
- Hueiyen Lanpao Editorial :: June 23 2012 -

A peace rally to observe the Assent of the then President of India to the controversial Armed Forces Special Powers' Act (AFSPA) on September 11 in 1958 on September 11 2011 .
Pix by Amarjit Longjam (Pui)

Can there be a law without the requisite rules of governance? If not, then, what is the Constitutional validity of that law?

How come the controversial Armed Forces Special Powers Act (AFSPA) of 1958 has been in operation without the requisite rules framed for its implementation?

These are some of the questions the government of India needs to answer now that it has woken up to the fact that AFSPA was enacted by Parliament 54 years back without framing the requisite rules.

The matter has come to light after the Prime Minister's Office (PMO) stepped in to mend fences between the Union Home and Defence Ministries that have crossed swords over amendments proposed to an Act described by many as draconian to make it more humane.

Instead of giving due importance to the public demand for repealing the Act, the PMO sought safeguards in the governing rules, only to be realize that they were never framed in the first place.

Accordingly, the PMO has reportedly asked both the Ministries to quickly frame the rules for AFSPA in a manner that they address the grievances caused due to human rights violations by security personnel in Jammu & Kashmir and the Northeastern states, where the law is in force for the last many years in the name of counter insurgency.

When most statutes confer powers on the government to frame rules that make the law operational, it is questionable why AFSPA does not have any such provision.

Was it a deliberate act of omission? And why this lacuna has not been detected all these years? These are again some of the questions, whose answer that the people, especially in Jammu & Kashmir and the Northeast, who have suffered under prolonged imposition of the Army Act, would like to know.

In fact, all these years, anti-AFSPA campaigners and human rights defenders have pointed out how AFSPA contravenes not just Indian but also International law standards and this was exemplified when India presented its second periodic report to the United Nations Human Rights Committee way back in 1991.

Members of the UNHRC asked numerous questions about the validity of the AFSPA, questioning how the AFSPA could be deemed constitutional under Indian law and how it could be justified in light of Article 4 of the ICCPR.

At that time, the Attorney General of India relied on the sole argument that the AFSPA is a necessary measure to prevent the secession of the North Eastern states.

Now the question is has use of AFSPA solve the problem of secessionist movement in the region? The answer is definitely a big no.

On the contrary, it has only fueled the problem giving the people more reason for wanting to secede from a 'democratic' country that enacts such laws that do not have any basis and yet harps on its continuity in one form or the other despite numerous recommendations for complete scrapping.

By the way, how humane is AFSPA going to be after its proposed amendment? At least, we have no idea. Perhaps, PMO has an answer to this.