In a recent order, the High Court of Meghalaya has found it fit “to direct the Central Government to consider the use of Armed Forces (Special Powers) Act, 1958, in the Garo Hills area”[1]. We are deeply troubled by this order for several reasons.

Firstly, the said direction issued by the High Court of Meghalaya is in complete violation of the constitutional arrangement of separation of power. The power to notify an area as disturbed and extend application of the AFSPA lies exclusively with the executive, that is, the state or central government. Maintenance of law and order especially in a conflict-ridden area throws vexed questions of security policy and needs reasoned and reflective assessment of options. Court as a civilian institution neither has access to the required expertise nor is privy to necessary security inputs. In fact, the point of view of the Court that the prevailing circumstances in Garo Hills warrant imposition of AFSPA is merely based on the lay impressions of the bench – a view which is uninformed, extraneous and has no basis in law and betrays lack of application of mind. The methodology and logic employed by the court in arriving at these conclusions is alien to established contours of legal reasoning and judicial rigor.

Further, the instant order severely damages the credibility of the High Court of Meghalaya as an independent arbiter of citizen’s democratic rights. It is to be noted that the High Court of Meghalaya is the holder of all powerful writ jurisdiction. It is the constitutionally enshrined role of the High Court that it is able to effectively carry out judicial review of executive measures having a bearing on life and liberty of people. By inviting the imposition of the AFSPA, the High Court of Meghalaya has become an active participant in the security policy of the state and has therefore, compromised its ability to safeguard individual rights and fulfill its role of acting as a check on executive power. It is imperative that the High Court retains independence and maintain healthy distance from local security deliberations such that it can independently scrutinize challenges mounted by the citizenry.

More specifically, in upholding the constitutionality of the AFSPA, the Supreme Court in the case of Naga People’s Movement of Human Rights laid down certain safeguards that need to be followed in the implementation of the Act. One of these safeguards is the requirement to review a notification declaring an area to be “disturbed” under section 3 of the Act. The Supreme Court said “we are unable to construe Section 3 as conferring a power to issue a declaration without any time limit” and said “we are of the view that a periodic review of the declaration made under Section 3 of the Central Act should be made by the Government that has issued such declaration before the expiry of a period of six months”. In its order, the Meghalaya High Court has said that armed forces should be deployed in the Garo Hills until “life becomes normal and the incidents of rampant kidnapping and killing totally stop”. This is clearly contrary to the decision of the Supreme Court.

Further, in the case of Naga People’s Movement of Human Rights the Supreme Court acknowledged a limited power of judicial review over notifications declaring areas to be disturbed: courts could assess whether the executive had relied on relevant material in making a decision to declare an area as disturbed, but not if these materials were sufficient. In directing the executive to impose the AFSPA, the High Court has effectively nullified the possibility of such a review in the future.

In addition to misunderstanding its role in a democracy, we are also concerned that the High Court has chosen to advocate imposition of the AFSPA – a law whose democratic credentials are in serious doubt. The AFSPA is widely considered to be a legislative measure unique in its absolute disregard of the rights of the residents against unlawful exercise of coercive power. The law exposes people to wanton and reckless use of force by security forces as it grants them absolute power and authority to use force. Over the years, a consensus has emerged on the AFSPA being a security measure of colonial origin in that it is a distinctively regressive tool which sets up a military ecosystem where security forces act with impunity and whips up an environment of fear and terror in the hearts and minds of people living in these places[2]. The use of the AFSPA as a substitute for routine policing and maintaining law and order is a dangerous development. It is one that a High Court should not condone, and certainly not perpetuate.

Finally, in a conflict ridden region, it takes many years of work to position the judiciary as an independent institution which is committed to enforcing constitutional discipline on the state and protects people’s right to redress. Through this order, the Chief Justice of High Court of Meghalaya along with two accompanying justices, have sought to unilaterally subject Garo Hills to a law which will have devastating consequences to the life and liberty of persons living there. This blatant and unilateral order does not serve the democratic fiber of the region, rather appears to be bringing in question the court’s commitment to constitutional ethos of Indian republic.

We feel it is the responsibility of the judiciary to take corrective measures and ensure that the Courts, do not, even inadvertently, overstep the boundaries so carefully laid down in the Indian Constitution.

[1] Order of the High Court of Meghalaya dated 2.11.2015 passed in Writ Petition (C) No. 127 of 2015.

[2] Several Indian bodies have recommended the repeal or amendment of the AFSPA. See Justice Jeevan Reddy Commission Report, the Fifth Report of the Second Administrative Reforms Commission and the Santosh Hegde Commission and the report of the Justice Verma Commission.  In 2015, the High Level Committee on the Status of Women also advocated its repeal. Multiple international authorities have also recommended that the government of India repeal or at least amend the AFSPA so it is in compliance with international human rights law. These include the Committee on the Elimination of Discrimination against Women, the Special Rapporteur on violence against women, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the situation of human rights defenders, the Committee on the Elimination of Racial Discrimination, and the UN Human Rights Committee. India also received recommendations to review or repeal the AFSPA from other countries during its Universal Periodic Review at the UN Human Rights Council.