AFSPA - Bane Or Boon?

Ayushi Raghuwanshi, LLM, MNLU Nagpur

It is the duty of the Union to protect the states from internal disturbance and also external aggression1 and in order to discharge this duty the Union brings AFSPA into picture.

There are a few points to this obligation – to guarantee that Government of each State is carried on as per the arrangements of Constitution. First is the law and order point. We realize that the "public request" and "police" are state subject and states have selective ability to enact on these issues. These subjects were shared with states since states would be in better situation to deal with any lawfulness issue. In any case, there may be a few conditions where states can't keep everything under control and protect the individuals. In such circumstance, center under article 355 can go to lengths like taking law and order of the state under its own hand, sending of military and so forth.

Second point is the justification of emergency, it is viewed as an instrument to legitimize inconvenience of crisis under articles 352 and 356.

The Supreme Court held in S R Bommai’s case2 that article 355 itself does not authorize the parliament to declare emergency when internal disturbance falls short of armed rebellion under article 352 nor under article 356 if it does not prevent the state government from working in accordance with the constitutional provisions. On this basis AFSPA was held to be constitutionally valid.