Judicial Safeguards Governing AFSPA

The Supreme Court upheld AFSPA but made its extraordinary powers subject to judicial review, necessity, proportionality and procedural accountability. In Naga People's Movement of Human Rights v. Union of India (1997) and EEVFAM v. Union of India (2016), it clarified that a disturbed-area declaration does not suspend constitutional protections or authorize unrestricted force.

Safeguards for declaring a disturbed area

The power under Section 3 is not immune from judicial review. A court may examine whether the declaration rests on relevant material or is affected by mala fides or extraneous considerations.

• A disturbed-area declaration must operate for a limited period and be reviewed before the expiry of six months.
• The Union and state governments must periodically assess whether the conditions justifying extraordinary powers continue to exist.

Limits on operational powers

Powers under Section 4 must be exercised strictly for the purposes of the Act and with due regard to necessity and proportionality.

• Before firing, the authorized officer must give the warning required by law and use only the minimum force necessary in the circumstances.
• Arrests and searches must satisfy the statutory conditions, and an arrested person must be handed over to the nearest police station with the least possible delay.
• The Army's official Dos and Don'ts governing operations were treated as binding, with violations attracting appropriate action.

Accountability for deaths and alleged excesses

In EEVFAM, the Court held that even prolonged insurgency does not convert internal security operations into a licence to use excessive or retaliatory force.

• Credible allegations of extrajudicial killing or excessive force require an effective and impartial investigation, irrespective of whether the deceased was alleged to be an insurgent.
• The protection under Section 6 is not blanket immunity: prior sanction concerns prosecution and does not prevent investigation into an alleged offence.
• Personnel remain accountable under ordinary criminal law and applicable service law when force exceeds lawful authority.