In an astonishing and a deeply problematic order on November 2, the Meghalaya High Court directed the central government to consider enforcing the Armed Forces (Special Powers) Act in Garo Hills till such time as “life becomes normal and the incidents of rampant kidnapping and killing totally stop”.
The three-judge bench of the court noted that Garo Hills in Meghalaya had a serious security problem, that the state police were not capable of addressing it, and used its powers under writ jurisdiction to say that imposition of AFSPA was necessary.
Though excessive, the direction of the Meghalaya High Court is not without legal effect. It has consequently led to a rather incongruous situation where the central government, which is responsible for deploying armed forces, is reportedly considering challenging the order in the Supreme Court.
The resistance is visible in Meghalaya too, with local groups taking to the streets to protest against the court decision and arguing against the idea that enforcement of AFSPA could ensure their security. The groups are acutely aware that in most regions living under AFSPA, the law has been a guise for state conduct amounting to human rights violations and an excuse for impunity.
Judiciary's role
Even if the law does not get enforced in Meghalaya, the High Court’s decision has still raises important questions about the role of the judiciary in such situations. It is concerning that an institution which should check executive powers, limit the application of exceptional laws like AFSPA and provide accountability for AFSPA-related violations, is entrenching its operation.
Under ASFPA, the power to extend the law to a “disturbed area” clearly falls outside the provenance of the judiciary – it is an assessment that can only be made by the state or central governments. This is one of the very few safeguards built into the operation of an otherwise repressive and brutal law. And it was emphasised by the Supreme Court in 1997.
While adjudicating on the constitutionality of AFSPA in the case of Naga People’s Movement of Human Rights, the Supreme Court had acknowledged that courts have limited power of judicial review over notifications declaring areas to be “disturbed” under AFSPA.
By recommending AFSPA’s extension to Garo Hills, the Meghalaya High Court has effectively compromised possible judicial review on this question in the future.
Incompatible with international law
It is also ironic that the High Court justified its order by relying on its powers to “protect the civil liberties and fundamental rights of the common citizens”. Extension of AFSPA has historically done the opposite.
Multiple United Nations authorities and Indian commissions have spoken about the adverse human rights consequences of AFSPA and the need to repeal it or at least radically amend it. A number of its provisions are incompatible with international human rights law and India’s international legal obligations. In practice, it has enabled human rights violations, including rape, torture and enforced disappearances. Indeed, the power to use lethal force under broad terms allowed by the AFSPA disregards the right to life, and falls short of international law on the use of force by law enforcement. Other provisions of the law deny victims of serious rights violations access to an effective remedy, facilitating impunity for those responsible for the violations.
There is no doubt that there are serious challenges in protecting the security of people in Garo Hills, as there are in other parts of the country. However, effective security measures must respect the rule of law and reinforce, not undermine, human rights protections.
True to type, the government is extending the reach of AFSPA, most recently in Arunachal Pradesh and Assam. Instead of challenging the continued use of this law and reinforcing safeguards, it is regrettable that the Meghalaya High Court sought to further entrench it.
The writer is an International Legal Advisor (South Asia) for the International Commission of Jurists.
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The three-judge bench of the court noted that Garo Hills in Meghalaya had a serious security problem, that the state police were not capable of addressing it, and used its powers under writ jurisdiction to say that imposition of AFSPA was necessary.
Though excessive, the direction of the Meghalaya High Court is not without legal effect. It has consequently led to a rather incongruous situation where the central government, which is responsible for deploying armed forces, is reportedly considering challenging the order in the Supreme Court.
The resistance is visible in Meghalaya too, with local groups taking to the streets to protest against the court decision and arguing against the idea that enforcement of AFSPA could ensure their security. The groups are acutely aware that in most regions living under AFSPA, the law has been a guise for state conduct amounting to human rights violations and an excuse for impunity.
Judiciary's role
Even if the law does not get enforced in Meghalaya, the High Court’s decision has still raises important questions about the role of the judiciary in such situations. It is concerning that an institution which should check executive powers, limit the application of exceptional laws like AFSPA and provide accountability for AFSPA-related violations, is entrenching its operation.
Under ASFPA, the power to extend the law to a “disturbed area” clearly falls outside the provenance of the judiciary – it is an assessment that can only be made by the state or central governments. This is one of the very few safeguards built into the operation of an otherwise repressive and brutal law. And it was emphasised by the Supreme Court in 1997.
While adjudicating on the constitutionality of AFSPA in the case of Naga People’s Movement of Human Rights, the Supreme Court had acknowledged that courts have limited power of judicial review over notifications declaring areas to be “disturbed” under AFSPA.
By recommending AFSPA’s extension to Garo Hills, the Meghalaya High Court has effectively compromised possible judicial review on this question in the future.
Incompatible with international law
It is also ironic that the High Court justified its order by relying on its powers to “protect the civil liberties and fundamental rights of the common citizens”. Extension of AFSPA has historically done the opposite.
Multiple United Nations authorities and Indian commissions have spoken about the adverse human rights consequences of AFSPA and the need to repeal it or at least radically amend it. A number of its provisions are incompatible with international human rights law and India’s international legal obligations. In practice, it has enabled human rights violations, including rape, torture and enforced disappearances. Indeed, the power to use lethal force under broad terms allowed by the AFSPA disregards the right to life, and falls short of international law on the use of force by law enforcement. Other provisions of the law deny victims of serious rights violations access to an effective remedy, facilitating impunity for those responsible for the violations.
There is no doubt that there are serious challenges in protecting the security of people in Garo Hills, as there are in other parts of the country. However, effective security measures must respect the rule of law and reinforce, not undermine, human rights protections.
True to type, the government is extending the reach of AFSPA, most recently in Arunachal Pradesh and Assam. Instead of challenging the continued use of this law and reinforcing safeguards, it is regrettable that the Meghalaya High Court sought to further entrench it.
The writer is an International Legal Advisor (South Asia) for the International Commission of Jurists.