The Judgement on the constitutionality of the Armed Forces (Special Power) Act is one of the most conservative judgements in the annals of the Supreme Court of India. The Court had delivered landmark judgements upholding human rights in the past. In this particular case, it has practically given its stamp of approval to even the arbitrary execution of a citizen on mere suspicion.

The Judgement is based on the premise put forward by the Union of India that (Para 53) :

... an inquiry is made whenever complaint about misuse of power conferred under the Central Act is received and that on enquiry most of the complaints were found to be false, and that whenever it is found that there is substance in the complaint, suitable action has been taken against the person concerned under the provisions of the Army Act.

The ground reality is very far from the government's claim. There are scores of cases where 'suitable action' has not been taken up even after Official Enquiries clearly established human rights abuse by the armed forces. There are still more cases where proper enquiries have never been conducted.

In the course of hearing, the Court did not entertain documentary evidence of individual cases for illustration of the true picture.

The Judgement put aside all the arguments raised by the learned counsels of the petitioners. The Judgement, in substance, relies on arguments not too different from those put forward by the Attorney General while defending the Government both in the Court and in the UN Human Rights Committee in Geneva.

From the point of view of the victims, the Judgement offers three possible remedies: 1. That the declaration of disturbed area should be periodically reviewed; 2. That the armed forces should strictly follow the Do's and Don'ts issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950; 3. That the order of the Central Government refusing or granting sanction is subject to judicial review and the Central Government should pass an order giving reasons.

The implications of these remedies, from the perspective of a victim seeking relief, are : 1. The Court did not give any criteria for objective assessment of the situation before declaration as 'disturbed area'. Thus, in practice, the review is a routine bureaucratic exercise, as it had always been in the past. 2. In practice, the Do's and Don'ts are often violated with the knowledge of, and violations covered up by, the higher army authorities. To victims already traumatised by the armed forces, the last thing they have in mind is lodging a complaint to the same forces to get justice. 3. Even if a complaint is lodged against army personnel, the procedure followed in Indian military courts under Army Act, 1950 falls far short of an 'equitable, impartial and independent administration of justice', which is the internationally accepted standard under Article 14 of the ICCPR. 4. Prosecution under the Criminal Procedure Code arises after registering a case with the police. But the local police usually discourage the victim from registering a case, for the police have a notion that they have no power to investigate into the conduct of the armed forces. Legal positions apart, the police are too scared of offending the army. 5. Even if the police file a charge sheet against guilty army personnel after due investigations, getting prosecution sanction from the Central Government is a long and costly procedural hurdle. Assuming that the Central Government finally gives the sanction, the victim is pitted against the resources of the armed forces for another legal battle, as the Judgement says 'refusing or granting sanction should be subjected to judicial review'.

On this particular issue of prosecution sanction, the view expressed by Chief Justice Rajsoomer Lallah, Member of the UN Human Rights Committee, while considering India's Third Periodic Report under ICCPR, is relevant. He said:

...the choice here, and I take it from the answers given by the Attorney General, is between the harassment of officials and the vindication of right of a citizen. If a choice has to be made why not let the courts decide whether the action is vexatious or frivolous? To whom could the citizen turn if it is the executive which decides this? Suppose the executive says 'No, I am not going to authorise you under section 6' what does he do? Presumably he goes to the court. Can it be dealt with there, since no proceeding can be instituted there?

But let us assume that it would go by way of judicial review, you are still landed in the lap of the judges and one has to think of the practical effect of this, the citizen who doesn't have the resources of the administration is put to the expense of trying to get permission, if it is refused then trying to get the court to force the executive to give the permission. But I will not go on and on about this. There is a problem here and I think if a choice has to be made between two evils, let the poor citizen have the benefit of the choice.

UN Human Rights Committee made a specific request to examine the compatibility of the provisions of AFSPA with the ICCPR, when the Supreme Court of India examined the constitutionality of the AFSPA. The UN body had repeatedly elaborated on serious human rights violations pertaining to Articles 6,7,9 and 14 of the Covenant, in areas declared to be disturbed under the AFSPA.

This was brought to the notice of the Court. But the matter did not find a mention in the Judgement

However, the Court did make a passing comment on certain facets of life under the AFSPA. In para 39, the Judgement noted:

There is one aspect which cannot be ignored. The primary task of the armed forces of the Union is to defend the country in the event of war or when it is faced with external aggression. Their training and orientation is to defeat the hostile forces. A situation of internal disturbance involving the local population requires a different approach. Involvement of armed forces in handling such a situation brings them in confrontation with their countrymen. Prolonged or too frequent deployment of armed forces for handling such situation is likely to generate a feeling of alienation among the people against the armed forces ...

The Judgement has sanctified the Armed Forces (Special Powers) Act. It has emboldened the armed forces to operate with impunity against the racially and culturally distinct minorities in North East India. Much against the Supreme Court's wishes, it is likely to generate more the feeling of alienation among the Manipuris against the armed forces.