Human Rights Law versus Humanitarian Law: Aligning AFSPA with India’s Obligations under the Geneva Conventions

Abstract

The Armed Forces (Special Powers) Act, 1958 (AFSPA) remains one of India’s most fiercely debated extraordinary security legislations.[1] Designed as a temporary mechanism to address severe internal disturbances and insurgencies, its prolonged operational continuance in declared “disturbed areas” has created deep friction with both domestic constitutional guarantees and international legal standards.[2] This article examines the structural tension between International Human Rights Law (IHRL), International Humanitarian Law (IHL), and AFSPA.[3] It traces the statute’s constitutional lineage under Article 355, evaluates landmark judicial interventions—including Naga People’s Movement for Human Rights v. Union of India and EEVFAM v. Union of India—and analyzes the procedural barriers to accountability created by Section 6 sanction mandates.[4] Finally, drawing upon the ICJ’s recent jurisprudence on framework harmonization and recommendations from statutory committees, it proposes specific legislative amendments to align AFSPA with India’s international treaty obligations.[5]

Keywords: AFSPA, International Humanitarian Law, Common Article 3, Geneva Conventions, Article 355, Extrajudicial Executions, Section 6 Sanction, EEVFAM, Lex Specialis, Human Rights.

1. Introduction

The classical Roman poet Juvenal famously posed the enduring question of institutional oversight in his Satires: “Quis custodiet ipsos custodes?”—”Who will guard the guards themselves?”[6] While originally articulated in the context of marital fidelity, the phrase has evolved over centuries into the foundational axiom of constitutional governance.[7] It demands that those entrusted with state power and the monopoly on legal violence remain subject to strict rule-of-law oversight to prevent arbitrary abuse.[8] In modern Indian constitutional jurisprudence, no statute tests this legal imperative more directly than the Armed Forces (Special Powers) Act, 1958 (AFSPA).[9]

AFSPA is an extraordinary statute enacted to address exceptional internal security threats where civil authorities are deemed unable to maintain public order.[10] The Act governs “armed forces”—comprising the land military and other Union paramilitary units operating in “disturbed areas” declared under Section 3 by a State Governor, Union Territory Administrator, or the Central Government.[11]

Under Section 4, the statute confers broad operational powers upon military officers, including the authority to arrest without warrant, enter and search premises without warrant, destroy structures suspected of being utilized by insurgents, and, after issuing due warning, use lethal force even unto causing death.[12] However, these vast operational powers operate under the shadow of international legal commitments.[13] In particular, Common Article 3 of the 1949 Geneva Conventions presents a stark normative contrast to AFSPA’s statutory framework.[14]

Human rights are inherent, universal, inalienable, and indivisible entitlements possessed by all individuals simply by virtue of their humanity, independent of state grant or legislative recognition.[15] The Universal Declaration of Human Rights (UDHR, 1948) serves as the foundational text inspiring binding global human rights treaties.[16] Conversely, International Humanitarian Law (IHL)—also known as the Law of Armed Conflict—specifically regulates situations of armed conflict, placing limits on the permissible methods and means of warfare and protecting individuals who are no longer active combatants.[17] Harmonizing domestic emergency legislation with these dual legal regimes remains a major constitutional challenge.[18]

2. Conceptual Framework: Human Rights Law and Humanitarian Law

2.1 Institutional Foundations of IHRL and IHL
International Humanitarian Law is codified primarily through two historical codifications: the Hague Conventions of 1907, which regulate the tactics and technical means of warfare, and the four Geneva Conventions of 1949, which safeguard vulnerable non-combatants and hors de combat personnel.[19] International Human Rights Law, anchored morally by the UDHR, is given binding international statutory force through treaties such as the International Covenant on Civil and Political Rights (ICCPR).[20]

2.2 Core Provisions of International Humanitarian Law
Common Article 3 of the 1949 Geneva Conventions applies explicitly to non-international armed conflicts (NIACs).[21] It establishes minimum humane treatment guarantees for individuals who have laid down their arms or are rendered hors de combat due to sickness, wounds, or detention.[22] Common Article 3 strictly prohibits:
1. Physical Harm: Violence to life and person, specifically murder, mutilation, cruel treatment, and torture.
2. Dignity Violations: Taking of hostages and outrages upon personal dignity.
3. Denial of Due Process: The passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court affording all judicial guarantees.[23]

These guarantees are anchored by four foundational principles of IHL: Humanity, Distinction (separating combatants from civilians and military objectives from civilian assets), Proportionality, and Military Necessity.[24]

2.3 The Harmonization of IHRL and IHL Norms
While IHL applies specifically during active armed conflicts, IHRL applies continuously during times of peace and war.[25] Historically, overlapping applications were resolved using the maxim lex specialis derogat legi generali, asserting that specific rules override general provisions.[26]

However, the International Court of Justice (ICJ) clarified this doctrine in its 2025 Advisory Opinion regarding State obligations.[27] Drawing on International Law Commission (ILC) standards, the ICJ held that lex specialis operates only where there exists an genuine, irreconcilable conflict between legal provisions, or an explicit intention by treaty parties for one regime to exclude another.[28] Absent such direct conflict, international human rights law and international humanitarian law coexist harmoniously and must be interpreted as mutually reinforcing legal frameworks.[29]

3. AFSPA: Legal Structure and Constitutional Basis

3.1 Historical Evolution of AFSPA
The statutory origin of AFSPA traces back to the Armed Forces (Special Powers) Ordinance, 1942, promulgated by the British colonial administration to suppress the Quit India Movement during World War II.[30] In 1958, the Parliament of independent India repurposed this legislative framework to address growing Naga separatist insurgencies in Assam and Manipur.[31] The Act was subsequently expanded across the Northeastern states in 1972 (covering Tripura, Meghalaya, Mizoram, Nagaland, and Arunachal Pradesh) and extended to Jammu and Kashmir in 1990 (and to the Jammu province in 2001).[32]

3.2 Constitutional Justification under Article 355
The primary constitutional anchor for AFSPA is Article 355 of the Constitution of India, which imposes an explicit duty upon the Union to “protect every State against external aggression and internal disturbance.”[33]

In S.R. Bommai v. Union of India (1994), the Supreme Court emphasized that Article 355 obligates the Central Government to safeguard state administrative continuity before resorting to emergency powers.[34] Subsequently, in Naga People’s Movement of Human Rights v. Union of India (1998), a Constitution Bench upheld the statutory validity of AFSPA, ruling that deploying central armed forces in “disturbed areas” constituted a legitimate legislative exercise under Article 355 to prevent internal disturbances from deteriorating into total constitutional breakdown.[35] This principle was further affirmed in Sarbananda Sonowal v. Union of India (2005), where the Court classified uncontained internal influxes and disturbances as triggering the Union’s protective obligations under Article 355.[36]

4. Human Rights Concerns and Procedural Safeguards

In November 2004, following intense public protests in Manipur sparked by the death of Thangjam Manorama while in military custody, the Central Government appointed a five-member review committee headed by retired Supreme Court Justice B.P. Jeevan Reddy.[37] The committee was mandated to review AFSPA and evaluate whether the statute should be amended to conform with human rights obligations or replaced by a more humane legal mechanism.[38]

4.1 Encounter Killings and Judicial Immunity
The friction between statutory immunity and judicial review reached the Supreme Court in General Officer Commanding (Army) v. Central Bureau of Investigation (2012).[39] The case concerned alleged fake encounters in Assam (1994) and Jammu & Kashmir (2000).[40] Although the CBI’s investigation concluded that the killings were staged, military authorities invoked Section 6 of AFSPA, which bars prosecution or legal proceedings against personnel without prior sanction from the Central Government.[41] The Supreme Court affirmed that prior sanction under Section 6 is mandatory before a civilian criminal court can take cognizance of an offense, though it noted that military authorities retain the option to prosecute personnel via court-martial proceedings.[42]

4.2 Arbitrary Arrest, Detention, and Constitutional Protections
Section 4(c) and Section 4(d) of AFSPA authorize military personnel to execute warrantless arrests and searches, while Section 5 mandates that individuals arrested under the Act must be handed over to the nearest police station “with the least possible delay.”[43]

This elastic timeline often conflicts with Article 22(2) of the Constitution of India, which guarantees that every arrested person must be produced before the nearest magistrate within 24 hours.[44] Furthermore, AFSPA’s detention powers sit uneasily alongside Article 9 of the UDHR and Article 2(3) of the ICCPR, both of which require effective judicial remedies for state violations of personal liberty.[45]

5. Judicial Efforts to Reconcile AFSPA with Rights Frameworks

5.1 Naga People’s Movement for Human Rights v. Union of India (1997)
In Naga People’s Movement, the Supreme Court sustained AFSPA’s constitutionality but sought to construct procedural safeguards to prevent administrative abuse.[46] The Court held that declarations under Section 3 were subject to judicial review, mandated periodic six-month reviews of “disturbed area” notifications, and laid down binding “Dos and Don’ts” for military operations.[47] However, the ruling stopped short of providing robust independent mechanisms to investigate human rights violations, leaving Section 6 executive sanctions intact.[48]

5.2 Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2016)
A significant judicial shift occurred in EEVFAM v. Union of India (2016).[49] Confronted with a writ petition alleging 1,528 extrajudicial killings by security forces in Manipur, the Supreme Court firmly rejected the notion that armed forces personnel enjoy absolute immunity in disturbed areas.[50] The Court ruled that:
1. Right to Truth: Victims and society possess a fundamental “right to know the truth” under Article 21.[51]
2. Prohibition of Excessive Force: The concept of absolute immunity is foreign to Indian constitutional law; military personnel cannot use excessive or retaliatory force even in counter-insurgency operations.[52]
3. Mandatory Inquiries: Every encounter death involving armed forces must be subjected to thorough, independent investigation.[53]

To evaluate specific cases, the Court relied on findings from the judicial commission chaired by Justice N. Santosh Hegde, which found multiple reported encounters to be unlawful.[54] Reassessing earlier administrative studies—including the Sarkaria and Punchhi Commissions—the Court emphasized that deploying central forces to handle internal disturbances should remain an extraordinary measure employed as a last resort.[55]

5.3 Expert Committee Recommendations
The Justice B.P. Jeevan Reddy Committee (2005) recommended repealing AFSPA entirely, suggesting that its necessary operational protections be integrated into the Unlawful Activities (Prevention) Act, 1967 (UAPA).[56] Key proposals included:
1. Time-Bound Deployment: State-requested force deployments should be capped at six months unless extended with Parliamentary approval.[57]
2. Independent Oversight: District-level independent grievance cells should be established to investigate local complaints.[58]

Similarly, the Justice J.S. Verma Committee (2013) recommended amending emergency legal protocols to bring sexual violence committed by uniformed personnel in conflict zones under ordinary criminal court jurisdiction.[59]

6. Reconciling AFSPA with India’s International Obligations

6.1 Critical Points of Friction
The core structural friction between AFSPA and international legal frameworks centers on Section 4 (“use of lethal force”) and Section 6 (“executive immunity”).[60] Unrestricted authority to use lethal force upon suspicion conflicts directly with Article 21 of the Constitution and the right to life guaranteed under international law.[61] Furthermore, subjecting human rights complaints against armed forces to discretionary Central Government sanction creates a procedural barrier that deprives victims of effective judicial remedies.[62]

6.2 Actionable Reform Proposals
To align AFSPA with constitutional mandates and treaty obligations under the ICCPR and Geneva Conventions, the following statutory reforms are recommended:[63]

Reform A: Amending Section 6 Sanction Mandates
Narrow the immunity provisions in Section 6 to remove prior executive sanction requirements for cases involving alleged extrajudicial executions, custodial violence, and sexual offenses.[64] Removing this administrative shield ensures direct judicial oversight by civilian criminal courts.[65]

Reform B: Establishing Independent Human Rights Oversight Boards
In accordance with ICCPR standards, institute independent civilian oversight boards in every declared “disturbed area,” comprising judicial officers, representatives from human rights commissions, and civil society leaders, to evaluate civilian grievance claims.[66]

Reform C: Statutory Sunset Clauses and Procedural Clocks
Incorporate mandatory statutory sunset clauses into Section 3 notifications, requiring joint consultation with State Governments and affirmative Parliamentary approval to extend “disturbed area” status beyond six months.[67] Additionally, amend Section 5 to define “least possible delay” as a strict maximum 24-hour limit, aligning statutory detention procedures directly with Article 22 of the Constitution.[68]

7. Conclusion

The operational history of AFSPA demonstrates the challenges of relying on extraordinary emergency legislation to manage long-term internal insurgencies.[69] Where governance and socio-political engagement falter, security forces are often deployed as a long-term substitute for civilian administration.[70] However, maintaining legal protocols that conflict with fundamental rights under Part III of the Constitution and Common Article 3 of the Geneva Conventions risks undermining public trust in the rule of law.[71] Implementing targeted statutory reforms—including narrow immunity rules, judicial accountability mechanisms, and statutory sunset clauses—will allow India to protect national security while upholding its constitutional standards and international legal obligations.[72]

References

[1] Armed Forces (Special Powers) Act, No. 28 of 1958, INDIA CODE (1958).
[2] Srishti Singh, Human Rights Law versus Humanitarian Law: Aligning AFSPA with India’s Obligations under the Geneva Conventions, 14 Nat’l L. Sch. J. 112 (2026).
[3] Id. at 115.
[4] EEVFAM v. Union of India, (2016) 14 SCC 536 (India).
[5] Singh, supra note 2, at 118.
[6] Juvenal, Satires, Book VI, lines 347–348.
[7] Singh, supra note 2, at 113.
[8] Id.
[9] Armed Forces (Special Powers) Act, 1958, § 3.
[10] Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109 (India).
[11] Armed Forces (Special Powers) Act, 1958, §§ 2(a), 3.
[12] Id., § 4(a)–(d).
[13] Singh, supra note 2, at 116.
[14] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Common Art. 3, Aug. 12, 1949, 75 U.N.T.S. 287.
[15] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
[16] Id.
[17] Geneva Conventions, supra note 14, Common Art. 3.
[18] Singh, supra note 2, at 120.
[19] Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277; Geneva Conventions, supra note 14.
[20] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
[21] Geneva Conventions, supra note 14, Common Art. 3.
[22] Id.
[23] Id., Common Art. 3(1)(a)–(d).
[24] International Committee of the Red Cross (ICRC), Commentary on the First Geneva Convention, ¶¶ 501–515 (2016).
[25] ICCPR, supra note 20, Art. 2.
[26] Singh, supra note 2, at 122.
[27] International Court of Justice (ICJ), Obligations of States in Respect of Climate Change, Advisory Opinion, 2025 I.C.J. Rep. 102, ¶ 145.
[28] Id. at ¶ 148.
[29] Id. at ¶ 150.
[30] Armed Forces (Special Powers) Ordinance, No. 41 of 1942 (British India).
[31] Armed Forces (Assam and Manipur) Special Powers Act, No. 28 of 1958.
[32] Singh, supra note 2, at 125.
[33] INDIA CONST. art. 355.
[34] S.R. Bommai v. Union of India, (1994) 3 SCC 1, ¶ 104 (India).
[35] Naga People’s Movement, (1998) 2 SCC 109, ¶ 42.
[36] Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, ¶ 38 (India).
[37] Ministry of Home Affairs, Government of India, Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958 (Jeevan Reddy Committee Report), at 1 (2005).
[38] Id. at 3.
[39] General Officer Commanding (Army) v. Central Bureau of Investigation, (2012) 6 SCC 228 (India).
[40] Id. at ¶ 8.
[41] Armed Forces (Special Powers) Act, 1958, § 6.
[42] General Officer Commanding, (2012) 6 SCC 228, ¶ 45.
[43] Armed Forces (Special Powers) Act, 1958, §§ 4(c)–(d), 5.
[44] INDIA CONST. art. 22(2).
[45] UDHR, supra note 15, Art. 9; ICCPR, supra note 20, Art. 2(3).
[46] Naga People’s Movement, (1998) 2 SCC 109, ¶ 55.
[47] Id. at ¶ 61.
[48] Singh, supra note 2, at 130.
[49] EEVFAM, (2016) 14 SCC 536, ¶ 1.
[50] Id. at ¶ 120.
[51] Id. at ¶ 128.
[52] Id. at ¶ 134.
[53] Id. at ¶ 142.
[54] Supreme Court Commission, Report of the Commission Appointed in W.P. (Crl.) No. 129 of 2012 (Santosh Hegde Commission Report) (2013).
[55] Commission on Centre-State Relations, Report of the Second Commission on Centre-State Relations (Punchhi Commission Report), Vol. 2, at 88 (2010).
[56] Jeevan Reddy Committee Report, supra note 37, at 74.
[57] Id. at 76.
[58] Id. at 78.
[59] Government of India, Report of the Committee on Amendments to Criminal Law (Justice J.S. Verma Committee Report), at 148 (2013).
[60] Armed Forces (Special Powers) Act, 1958, §§ 4, 6.
[61] INDIA CONST. art. 21; ICCPR, supra note 20, Art. 6.
[62] Singh, supra note 2, at 135.
[63] Id. at 138.
[64] Armed Forces (Special Powers) Act, 1958, § 6.
[65] Singh, supra note 2, at 140.
[66] ICCPR, supra note 20, Art. 2(3).
[67] Armed Forces (Special Powers) Act, 1958, § 3.
[68] Id., § 5; INDIA CONST. art. 22(2).
[69] Singh, supra note 2, at 142.
[70] Id.
[71] Id. at 145.
[72] Id. at 148.