Legally Explained: Irom Sharmila and what courts & judges think of the draconian AFSPA

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a licence to kill’, and inconsistent with the guarantee of right to life and liberty enshrined in Article 21 of the Constitution.

The long of it says that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force even to the causing of death, against any such person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.

When you read this provision with Section 6, which protects the officer from all legal proceedings except with the previous sanction of the Central Government, that begins to hint at how draconian it can be.

OK Agreed it is draconian. Still, the SC has even recently held that it was fine, right?

Yes, on 8 July the SC even relied on its 1998 judgment in the Extra Judicial Execution Victim Families Association v Union of India case.

It was a bench of justices Madan B Lokur and UU Lalit, but their hands were tied and had to rely on the 1998 judgment, which was delivered by a Constitution bench.

A two-judge bench like them could not have overruled the 1998 delivered by a larger bench, even if they had wanted to.

But rather than refer it to a larger bench, the two-Judge bench found a easy way out: they chose an observation from the 1998 judgment, which helped to buttress their conclusion.

What was that observation?

The judges picked up the statement that every death caused by the armed forces, including in the disturbed area of Manipur, should be thoroughly inquired into if there was a complaint or allegation of abuse or misuse of power.

Other judges too have looked at AFSPA, right?

Correct.

The Justice Jeevan Reddy Commission had recommended AFSPA’s repeal, after it was set up by the Central Government under the former SC Judge in 2004.

Reddy submitted its report in 2005, recommending AFSPA’s repeal.

How did the Jeevan Reddy Commission justify its repeal?

The Commission said that the Act is too sketchy, too bold and quite inadequate in several particulars.

It clearly concluded that the 1998 judgment of the Supreme Court upholding the validity of the Act was not an endorsement of its desirability or advisability.

The court does not

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