TheDaak review

By Sharon Singh

The constitutional guarantees envisaged in modern constitutions do not function in an absolute sense but operate in a framework that is underscored by the rationale of limited government power, and this is popularly called the principle of constitutionalism. In a democratic polity, such constitutional guarantees must compete against certain theoretical constructs in order to claim their rightful place in the grand scheme of things. 

The central theme of this paper is to trace the relevance of the political question to the constitution, and situate its legislative spirit in the Armed Forces (Special) Powers Act, 1958 (hereinafter referred to as the AFSPA or the Act). In furtherance of this theme, the  aim is to answer the primary question of how the Act has responded to the political question of executive authority. To this end, in Part A, this paper  elucidates the nature of the political question. In Part B,  the interaction between the Act and the facet of constitutional democracy is exemplified. And  Part C reflects on the judicial opinion on AFSPA. 

It is essential to note that the Act has colonial roots. In 1947, the Constituent Assembly introduced a bill to amend the Armed Forces (Emergency Duties) Act, 1947. A common observation of the members was that the powers of search, seizure, arrest without warrant, and use of force to the extent of causing death, were too drastic and militaristic in nature. These fears were laid to rest as Baldev Singh, the then Minister of Defence, opined that such statutory powers could not be exercised unilaterally by the armed forces, rather the decision to declare an area as ‘disturbed’ was vested in the government. Despite the contestation, AFSPA was preferred as it provided an alternative to martial law (Bhatnagar 2016). Today, it is this range of ‘special powers’ that is questioned in a maturing democracy.

PART A

THE NATURE OF QUESTION

The indispensability of a constitution emerges from its nature and ability to weave together fundamental founding principles. Even though the Indian constitution was conceived in exceptional circumstances of Partition and communal disturbances, the final text of the constitution was animated by the questions of social upliftment, political equality and social identity. Legislations became the appropriate means to transform this constitutional spirit into an effective jurisdictional reality. 

In the following Part, this paper invokes the American political scientist Uday Mehta’s argument in contra-distinction to the historian and philosopher Hannah Arendt’s to emphasise that the retention of the social and the political questions in the constitution has been a revealing experiment. There is a palpable tension between the social question, concerning the inequalities in the societal structures and institutions, and the political question, consisting of executive authority. For people living in the ‘disturbed areas’ under AFSPA, the relevance of these questions has been most telling. In the realm of politics, there is equality based on the principle of one man, one vote and one value, but the inequality in the social and economic structures has squarely denied people the actualisation of this promise . The contemporary significance of such contradictions is well brought out by the prolonged application of AFSPA including the unique spatial-temporal characteristics of AFSPA that underscore the tension between the state and its people.  

Uday Mehta favoured the constitutional recognition of the political and social questions debunking Hannah Arendt’s prophecy of terror (Mehta 2004). In Arendt’s opinion, every attempt to solve a social question by political means led to terror as was seen during the French Revolution. However, in the American founding, the constitution limited the ambit of political power by excluding the social questions. In the Indian context, Mehta argues that her prophecy turned out to be false and irrelevant (Mehta 2004). If for Arendt, the case of the American founding was illustrative of a judicious choice of limiting state power by excluding the social question, Mehta believes that the Indian Constituent Assembly had to make a tough choice given the magnitude of the socio-political challenges faced by the country. Ultimately, the Assembly opted for a synthesis of these questions as it believed that the questions of the past continued to impact the present, and if left unresolved, had the potential to impact the future too. The conception of any constitution takes place based on the attending circumstances. They hold an intrinsic determinative value to decide the content of the constitution. Based on an analysis of the Constituent Assembly Debates, it is clearly discernible that there were three salient features that dominated the deliberations of the Assembly:national unity, socio-economic inequalities, and India’s global standing and foreign policy. Referred to as the ‘standard template,’ these features continue to dominate the present-day politics of the country. 

It can be argued that even though India was free from imperial hegemony yet the distinct socio-political challenges across the country impelled the leaders to adopt a law that centralised exercise of power in situations of conflict. The Constituent Assembly Debates unambiguously state that due to the divisive tendencies confronting the Indian state, ensuring national unity was the foremost goal of the newly-formed government. For this purpose, the continuation of the British-era law was considered appropriate. It was believed that securing national unity would pave the way for attaining ‘freedom.’ The nation was viewed as a project in which freedom was seen as a projection into the future. Freedom was subordinated to the fulfilment of other pressing concerns including national unity. Such is the dilemma that balancing national unity and freedom continues to plague contemporary democratic politics as well. As AFSPA is criticised for affecting particular populations disproportionately, the political question of exercising powers in pursuance of maintaining territorial sovereignty and subsequently limiting freedom necessitates deeper analysis.  

The Political Question in AFSPA

The executive’s authority under AFSPA assumed the nature of a dominant political question due to a multitude of factors. Factors including the historical anxiety of the spread of communism, Burma’s wartime destruction, to the contemporary anti-foreigner sentiment in Assam, and the entrenched political economies of the North-east, have given rise to insecurities among the local populations, including feelings of nationalism and competing ideologies. Besides, the vexatious nature of this problem is linked to the cartographic and political changes brought about on the eve of Independence which bred resentment. The resulting security crisis in the North-east transformed the political question from being one of protecting territorial integrity or national unity to becoming one of constitutional survivalism (Devasher 2025). Consequently, the political question that animated the constitution at its inception came in close contact with the Act, thereby making it  a common denominator between the constitution and the Act. 

The process of post-colonial state building prioritised the imperative of constitutional survivalism over participatory politics and civil liberties. The nature of political question has evolved such that the region’s contemporary discourse is dominated by issues pertaining to identity politics, ethnic nationalism, forced displacement, poverty and material shortages, communalism, and territorial insecurities. As the political question has evolved, the socio-political issues have become securitised. 

It is believed that the forever imposition of AFSPA has done deep damage to the Indian constitution as the use of force has not translated in strengthening the democratic union. Issues of separatist violence, ethnic polarisation, and illicit cross-border trade continue to threaten both the nation’s social fabric and political democracy. The State (in a military sense), despite using force, has not triumphed over separatist and ideological violence. Besides, the post-colonial solidarities that India had with its neighbouring countries have translated into a shift towards regional violence. This shift has not only changed India’s relations with its neighbours but in a sense has remade India itself. Naturally, today the political question has come to embrace the two-and-a-half front war scenario. This has shaped a firm belief that India must evidently demonstrate its political and administrative writ in the North-east.  

PART B

CONSTITUTIONAL DEMOCRACY AND AFSPA

Traditionally, individual liberties were not subject to the goodwill of the sovereign and individuals were entitled to their freedom. Although liberty pre-existed government, there was no a priori reason which required constitution-makers to grant priority to freedom while determining the political structure of the constitution. For some societies, individual freedom ranks lower as compared to other objectives such as happiness or welfare, while others believe that freedom is not solely granted by the constitution but depends on other factors including the state and quality of a democracy and the role people play in it. Some others even believe that the freedom-enhancing approach is flawed, as the state is duty-bound to provide security and welfare to its people , both of which are higher and more complex missions.  

This paper will now touch upon the various dimensions that illustrate the manner in which AFSPA has interacted with the facet of constitutional democracy in India.

Un-making of Democracy

Paradigm of Security: In India, there are certain jurisdictions that have been the recipients of a dominant security paradigm, and consequently have a weak democratic footprint. In his work titled Durable Disorder, Sanjib Baruah argues that the troubled post-colonial history of the North-east does not easily fit into the standard narrative of democracy in India (Baruah 2012). It has been plagued by authoritarianism, ethnic violence, and internal displacement. While a high number of armed conflicts smoulder this frontier region, the outside world is aware of only a few of them rendering it difficult to reconcile the extent of disruption and destruction emerging therefrom. The numerous armed conflicts negate the argument that democracies are better equipped to peacefully resolve conflicts than non-democracies. For instance, the highly securitised elections in Jammu and Kashmir and states of the North-east punctuate the landscape of armed conflicts, but in reality, the elections do little more than produce a facade of normalcy. The dominance of the security paradigm has overshadowed the question of governance, relegating it to the margins of regional democracy. Besides, the nature and duration of counter-insurgency operations is such that the operations provide cover for a virtual loot of the public treasury, denying the local population the fruits of economic growth and corroding values in public life. Such overt weakening of the societal fabric is opposed to the values that a constitutional democracy stands for, including democratic participation, rule of law, and popular sovereignty. 

Nature of Problem: Living in a constant state of uncertainty has altered the lived experiences of the local populations. The insurgency in the North-east has transformed from a demand for a sovereign state to a form of territorial politics, leading to an expansion of security bureaucracy. The scale of militarization has expanded to include the demand for local autonomy and territorial identity (Sharma 2021, 149 – 69). This has perpetuated the belief that the constitutional ideals, the democratic principles, and the preambular promises are meaningless for people living in the North-east. Moreover, the attainment of the principles of constitutional democracy seems utopian, as there is a difference of opinion on whether the insurgency is a ‘law-and-order’ problem or a ‘political’ problem. While for the state, the problem pertains to a breakdown of the law-and-order machinery, justifying the exercise of militaristic powers under the AFSPA; for the people, the problem is political, necessitating a more systematic intervention by the government. Due to this perceptual dissonance, the legitimacy of state (institutions) is questioned.

Human Rights: Amidst the debate around whether the security forces bear the responsibility for the sorry state of human rights in ‘disturbed areas,’ or among the insurgents, the question of preserving constitutional democracy is neglected. The AFSPA provokes strong reactions both in the North-east and  Jammu & Kashmir as it allows the armed forces to act with impunity (Chadha 2013). As far as the tenets of constitutional democracy are concerned, it is argued that the provisions of the Act fail on two counts. First, the provisions do not satisfy the legal standards and second that they violate the fundamental rights which are constitutionally guaranteed. The provisions of the Act, i.e., use of force, arrest and detention, and protection of security personnel from prosecution indicate the dilution of fundamental rights. While the Act itself perpetuates impunity, it also claims that the alleged violations are mere aberrations (Extra Judicial Execution Victim Families Association and Anr. v UOI (Writ Petition (Criminal) No. 129 of 2012). By reinforcing a militarised approach to security, the Act has proved both inefficient and  counter-productive. By resorting to the deployment of security personnel against the citizenry, the government has tacitly acknowledged that the democratic methods are insufficient to restore normalcy. Consequently, the relationship between the Union and the state governments as well as between the government and the people is exposed to distrust.

Sustaining a Democracy

Security v Liberty: To respond to a crisis or an emergency-like situation is far more challenging in a democratic regime as compared to  an authoritarian regime. In the ‘disturbed areas,’ there is a constant tension between security and liberty. Consequently, the concern is that if there are any violations of democratic values, how can they be justified in order to ensure the survival of the democratic and constitutional order, and if such justification can be made, then to what extent  a democratic, constitutional government can defend the state without transforming itself into an authoritarian regime. 

Principle of Necessity: In exceptional times, necessity guides the executive to choose the most suitable method to pursue self-preservation (Crocker 2020). Invocation of this principle allows official decisions to be made on the basis of necessity as it offers the occasion to alter the priority and content of constitutional meanings and national character. At the same time, even though extraordinary conditions call for extraordinary remedies, such conditions do not imply that constitutional power may be expanded at discretion. 

Principle of Constitutionalism: The idea of a government limited by a written constitution and the rule of law does not pose a threat to the development of a vibrant political democracy. To the contrary, it helps in securing the foundation of a constitutional order whose legal and political institutions are developing. The principle of constitutionalism limits the powers that are exercisable by the state, thereby protecting the citizen’s ability to exercise discretion and freedom in their daily life. As liberty has a privileged place among the fundamental rights, and as fundamental rights have a sacred place within the constitution, the violation of liberty by state actors is checked by the judiciary (Indrajit Barua v State of Assam and Anr. AIR 1983 Delhi 513). Notwithstanding the paradox, a judicious use of emergency powers within the bounds of constitutional principles can certainly serve the important goal of ensuring political stability without necessarily sacrificing aspirations of legality and a constitutional government (Ramraj 2011, 165). In post-conflict societies like the North-east or Jammu and Kashmir that continue to be deeply divided, legality of official action remains highly contested. It is noteworthy that despite the concerns relating to legality, one of the outstanding achievements of the democratic framework of India has been its ability to subordinate violent political conflict to law, and  channel political disputes and disputes about state power into public institutions designed to resolve those issues in a manner that most accept as legitimate.

It can be opined  that there is a fundamental constitutional requirement to preserve freedom as the rule and its limitation as an exception. Government actions, legislative or executive, must adhere to this constitutional imperative. Although constitutional pragmatism does follow logic, there are exceptions. AFSPA stands out as an exception in two ways. First, it limits rights of the populations residing in ‘disturbed areas’ and second, it has been applied to specific regions for prolonged periods of time. 

As an exceptional law, AFSPA’s liberty-limiting characteristics have been scrutinised by the courts. The challenge against AFSPA has been primarily based on its denial of freedom and equality to specific populations. In a veiled manner, the courts have emphasised that denial of fundamental rights and violation of rule of law in an attempt to preserve the mantle of national security, territorial integrity, and sovereignty, is not a sound approach to preserve the tenets of constitutional democracy. 

PART C

JUDICIAL OPINION ON RIGHTS, POWERS AND AFSPA

In the context of AFSPA, the tenuous relationship between individual rights and other constitutional interests is often subjected to judicial scrutiny. This tension becomes apparent because of the popular belief that private interests are secondary to public interests. Even though constitutions do not expressly include this maxim, executive decisions and judicial pronouncements indicate the state’s tilt towards prioritising public interests. This prioritising of public interests over individual rights plays a role in the legal application of limitations on rights. Based on the judicial opinion expressed in the following judgments, it can be  argued that in resolving the security-liberty paradox, the Indian courts have relied on the test of proportionality. While fundamental rights have constitutional acclaim, most public interests including security have legislative origins underlined by the rationale of public good. Consequently, it is seen that once a broad concept of public interest like security is pitted against an individual right, courts defer to the executive’s opinion in protecting the public interest, thereby, relegating individual rights and liberties to a secondary role. However, it must be noted that limiting or curtailing liberty is not an action that is based on government fiat but on a reasonable and legitimate basis.

The court laid down a fundamental principle in PUCL v UOI (Writ Petition (Civil) 389 of 2002). When the adjudication of a matter involves balancing the imperatives of sovereignty and integrity of India on the one hand and public order and security of the state on the other hand, the court observed that the Union Government was constitutionally mandated to protect and uphold the sovereignty of the state, while the constituent states had to ensure security and public order within their jurisdictions, failing which the Centre was fully empowered to invoke its powers under Article 355 of the constitution or draft a specific legislation in response to the security threat. Although the court’s effort at delineating powers between the Union and the State governments lent procedural clarity in relation to security laws, in the case of AFSPA, the ambiguity persists as the notifications are issued by the Union Government, indicating a passive role of the state governments.

The petitioners contended that the provisions of certain legislative enactments of the state government of Assam and the Parliament were in contravention with the right to equality, right to freedom and the right to life under the Indian constitution (Indrajit Barua v State of Assam and Anr. AIR 1983 Delhi 513).  As the wide-ranging powers envisaged under the AFSPA create space for exercising ‘discretion’, the court emphasised that such discretionary powers had to be exercised judiciously. The rule of law was a basic postulate of any organised society and therefore while exercising discretion, the negation of the right to life could take place only through a procedure established by law. All state action, whether executive, legislative or judicial, must stand the test of rule of law. As such it becomes incumbent upon the state to ensure that violation of individual rights does not violate their constitutional sanctity. Thus, as much as such rights and liberties are essential, for the optimal functioning of the constitution, a balance has to be struck between individual liberty and social control. At the same time, the administration of the provisions of the constitution has to be in line with the spirit of constitutionalism.

The chequered history of AFSPA was substantially altered by the court in Naga People’s Movement for Human Rights v Union of India (November 27 1997). By upholding its constitutionality, the court laid to rest a persistent question regarding the legislative competency of the Parliament (deployment of armed forces to secure public order) vis-à-vis the state legislatures (protecting law and order). The court for the first time responded by laying down procedural safeguards for the security personnel engaged in counter-insurgency or counter-terrorism operations in ‘disturbed areas.’ Although the court deferred to the executive’s viewpoint on security, but in a bid to preserve liberty, the court emphasised that the deployment of armed forces had to be in aid of the civil power; the declaration of a ‘disturbed area’ had to be temporally specific, and only minimal force could be resorted to during any counter-insurgency or counter-terrorism operations.

The question of exercise of (il)legitimate powers came up for judicial scrutiny in the case of General Officer Commanding v CBI and Anr. (AIR 2012 Supreme Court 1890). The law on the prior sanction for prosecution of security personnel was summarised to the effect that the rationale behind obtaining prior sanction was meant to ensure that a public servant who had acted in good faith while performing his duty was protected for his official actions. However, the court clarified that there had to be a discernible connection between the act complained of and the powers employed by the public servant for discharge of his duties. Therefore, if the alleged act or omission of the public servant was shown to have reasonable connection with discharge of his duty, he was entitled for protection. Nevertheless, the extent to which courts can effectively intervene is limited because the question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. 

These judicial pronouncements show that the courts have been sensitive to the constant tension between constitutional rights, statutory powers, and provisions of the Act. It can be believed that although the test of proportionality has helped the courts to establish the extent to which ‘interfering measures’ can be adopted by the state, the judiciary has deferred to the executive’s opinion on decisions concerning security.

CONCLUSION

A constitution, just like a machine, is a lifeless thing. It needs to acquire life through individuals who control it and operate it.  Even if the text of a constitution manages to convey what seemed important to constitution-makers at the time of its drafting,  the operationalisation of the various provisions remains at the discretion of those who execute them in the changing social circumstances. Resultantly, the survivability of a constitutional democracy is based on the decision of those who believe in the viability and desirability of a constitutional and democratic regime, while taking cognizance of the fact that emergencies necessitate extraordinary measures from the state (Gross and Aolain 2006). 

Often, the inception of constitutions coincides with the birth of nations. While the former provides guidance to the latter, the principles enshrined in constitutions prove to be invaluable for resolving the dilemma of prioritising and resolving the social and political questions. In India’s case, there were evident social, economic, and political peculiarities which the Constituent Assembly chose to answer. As such the ‘prophecy of terror’ seemed misplaced in the Indian context as the social and political questions were not segregated but treated as essential to determine the future course of Indian democracy. 

As the existing fault-lines in the North-east are affected by the events transpiring across the border and vice-versa, situating the security-liberty paradox within the contours of the constitution necessitates  relooking at the evolving geopolitics of the neighbourhood and the region in its entirety. From building post-colonial constitutional solidarities to an increasing sense of militarism, and a contemporary competition with China over strategic prominence, India has its task cut-out in the North-east. The effort at state-building is linked to effective international diplomacy, but the prevailing sense of insecurity, lack of accountability and entrenched political economies deter India’s efforts in reshaping the strategic environment of the regional neighbourhood, thereby throttling India’s overall efforts in the North-east. 

At Independence, the political question of protecting India’s sovereignty and upholding territorial integrity assumed a sense of urgency. The temporal progression of India’s independence implied that the constitution had to be protected to ensure its survival in conflict-ridden societies like the North-east. However, the executive authority exercised under the Act has led to its prolonged application, creating a paradigm of security that has eroded the spirit of constitutionalism. The current political discourse demonstrates that the Indian form of constitutionalism has not led to a legacy that limits the power of the State, but has in fact eliminated the suspicion of expansion of power. Although the judiciary has accorded primacy to the executive’s view on promoting the public good (security), the executive has not reciprocated in protecting private interests (liberty). Whether it was the suggestion of the Justice Jeevan Reddy Committee (2005) to repeal AFSPA in the wake of Manorama Devi’s death or the court’s suggestion to establish a Truth and Reconciliation Committee to address historical human rights violations (Extra-Judicial Killings Victim Families Association (EEVFAM) v Union of India (Writ Petition (Criminal) No.129 of 2012), there has been visible inaction on part of the executive. 

As far as the AFSPA is concerned, the resolution of the political question is imperative for resolution of the totality of the concerns affecting the North-east. The constitutional ideals, democratic principles and preambular promises in the ‘disturbed areas’ of the country demand a fresh interpretation. It is through the exercise of a specific kind of power that is sanctioned for individuals who are situated in the different organs of the government that the nation can be re-imagined, better administered and made just.

REFERENCES

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Baruah, Sanjib. 2007. “Durable Disorder: Understanding the Politics of Northeast India.” Oxford Scholarship Online, DOI:10.1093/acprof:oso/9780195690828.001.0001.

Bhatnagar, Gaurav Vivek. 2024. “Flashback: What the Constituent Assembly Debates Tell Us About AFSPA’s Problems.” The Wire, February 2. https://thewire.in/law/afspa-was-strongly-opposed-in-the-constituent-assembly.

Chadha, Vivek. 2013. AFSPA – The Debate. Lancer’s Books.

Crocker, Thomas. 2020. Overcoming Necessity. New Haven & Londo. Yale University Press.

Devasher, Tilak. 2025. “Not by Force Alone.” The Hindu, March 19.

Global Freedom House Index. 2025. “Global Freedom House Index 2024.” Last accessed March 21, at 08:30 (GMT). https://freedomhouse.org/report/freedom-world/2024/mounting-damage-flawed-elections-and-armed-conflict.

Gross, Oren and Fionnuala Ni Aolain. 2006. Law in Times of Crisis. Cambridge University Press.

Mehta, Uday. 2024. “The Social Question and the Absolutism of Politics.” India Seminar, April 28. https://www.india-seminar.com/2010/615/615_uday_s_mehta.htm.

Ramraj, Victor V. 2011. “Emergency Powers and Constitutional Theory.” Hong Kong L.J. 41.

Sajo, Andras and Renata Uitz. 2019. The Constitution of Freedom – An Introduction to Legal Constitutionalism. OUP.

Sharma, Amarjit. 2021. State v Society in North-east India – History, Politics and the Everyday. Sage Publications.

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Sharon Singh is a PhD scholar at National Law School of India University, Bengaluru.