FEDERALISM

FEDERALISM

FEATURES AND CHALLENGES BEFORE FEDERALISM

Federalism is an institutional mechanism to accommodate two sets of polities—one at the regional level and the other at the national level. Each government is autonomous in its sphere. The Indian Constitution provides for a federation with a strong centre.

Quasi Federal: K.C. Wheare described the Constitution of India as “quasi-federal”: “Indian Union is a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features.”

Relevant Provisions

1. Article 1 of Constitution: It states that India is a Union of States.
   • The Constitution does not use the word Federation.
2. Legislative Division
   • Territorial division: Parliament can make laws for the whole or any part of the territory of India. States can make laws for the whole or any part of the state.
   • Seventh Schedule: It specifies the legislative powers of Governments through three lists – Union List, State List, and Concurrent List.
3. Administrative Division
   • Territorial division with respect to subjects in three lists: Executive Power of Centre extends to the whole of India for the Union List and executive power of States extends to their respective territories for the State List.
   • On matters under concurrent list: Executive powers rest with the states except when the Constitution or Parliament has directed otherwise.
4. Taxation powers: Both Parliament and State legislature have the power to levy taxes on subjects mentioned in their respective lists. For the concurrent list, both can levy taxes; however, residuary power of taxation rests with the Parliament.

Features of Indian Federalism

• Dual Polity: The Constitution establishes a dual polity consisting of the Union at the Centre and the states at the periphery, with each assigned sovereign.
• Written Constitution: The Constitution is a written document with defined powers.
• Division of Powers: The VII Schedule of the Constitution divides power between Centre and State in terms of Union, State, and Concurrent list.
• Supremacy of the Constitution: Implying Constitution is the highest law of the land and laws enacted must conform to it.
• Rigid Constitution: Constitution is rigid to the extent that those provisions which are concerned with the federal structure can be amended only by the joint action of the Central and state governments.
• Independent Judiciary: Headed by Supreme Court to protect the supremacy of the Constitution and to settle disputes between Centre and States or between States.
• Bicameralism: Constitution provides for a bicameral legislature consisting of an Upper House (Rajya Sabha) and a Lower House (Lok Sabha). The Rajya Sabha represents the states of Indian Federation, while Lok Sabha represents the people of India as a whole.

Issues in India federal structure

1. Legislative Issues
   • 7th Schedule: The question of division of powers and responsibilities between the centre and the states has cropped up in several legislative proposals. For example, Chhattisgarh filed a suit under Article 131 against NIA Act.
   • Article 250: During an emergency, Parliament has the power to legislate with respect to any matter in the State List.
   • Article 3: It gives Centre the power to redraw boundary of a State or name of the State.
   • Reservation of State bills by Governor for consideration of the President.
   • Governor’s power to summon an Assembly session: Governor has no discretion in the matter of summoning the house under Article 174 if the chief minister enjoys majority in the house. For example, Rajasthan Governor’s insistence on 21-day notice for the session; however, there have been instances where sessions have been convened at shorter notice.
   • Amending power: Amending majority of the provisions of the Constitution does not require consent of States. Further, States cannot bring forth a proposal for amendment of Constitution.
2. Financial issues
   • GST: For the period 2011-12 to 2018-19, on average, 56% of states’ tax revenue came from their own collections and 44% came from central transfers. However, in the GST regime, the states have limited autonomy on 65% of the revenue they generate and are more dependent on central transfers.
   • Finance Commission: Discrimination in financial allocations to the states through Terms of Reference of Finance Commission decided by the centre.
   • Implementation of 14th Finance Commission: It devolved 42% of taxes to the States; however, States’ share reached a peak of 36% in 2018-19 and has fallen sharply since.
   • Issues of Special Category Status: Several states demanding the status, leading to confusion regarding provisions and privileges associated with Special Category States.
   • Misuse of Article 282: It is used as the basis for encroaching into state subjects by Union government through Centrally Sponsored Schemes and Central Sector Schemes.
   • Cesses and Surcharges: These are not shared with the States; however, their share is increasing in Centre’s gross tax revenue. For example, in 2017-18, it stood at 15.7%.
3. Administrative issues
   • Central forces in states: Deployment of central forces in the States to maintain law and order.
   • Control over officials: For example, All India Services, CBI, etc.
   • Mode of appointment and dismissal of Governor: Supreme Court in B.P. Singhal v. Union of India called for a fixed tenure for Governors to encourage neutrality and fairness in the discharge of their duties, but it has not been implemented.
   • Discriminatory and partisan role of Governors: In the appointment of Chief Minister and formation of Government; for example, in the case of Goa and Manipur, the single largest party was not given preference to form the government.
4. Federal Governance during COVID-19
   • Initial phases: The initial stages of the Covid-19 response highlighted the unitary tilt in the Indian federal structure—implementation of a national lockdown, extensive guidelines to states for controlling the pandemic.

• Lack of National Plan: The Centre did not formulate the ‘National Plan’ as mandated by the Disaster Management Act and chose to respond to COVID-19 through ad hoc binding guidelines issued to States, thereby circumventing the legislative mandate of State consultations.

• Subsequent phases: Autonomy of states was restored but they had less functional power than the Centre.
  • Revenue reduction: Due to the lockdown, there was a drastic reduction in revenue.
  • Borrowing limit: The Central Government enhanced the borrowing limit of state governments from 3% to 5% of their gross state domestic product. However, only the first 0.5% of this increase is unconditional—the rest will be permitted only if the borrowing is linked to specific reforms.
  • Agricultural reforms: Agriculture is a state subject in India. Reforms related to it should be done with the consultation of states.
  • CSR Exemption: Donations to PM-CARES can avail CSR exemptions, but those donating towards any Chief Minister’s Relief Fund cannot. This disincentivized donations to any Chief Minister’s Relief Fund, increasing State’s dependence upon the Centre.
  • GST Compensation Cess: The estimated shortfall in GST compensation for 2020-21 is ₹2.35-lakh crore. Thus, the Centre proposed a complicated arrangement whereby the States would borrow to meet the shortfall.

1. Socio-cultural challenges
   • Regionalism: The demand for the formation of new states has become prominent in different parts of the country. For example, demand for division of Uttar Pradesh; demand for Gorkhaland (from West Bengal).
   • Linguistic issues: Language conflict is also one of the challenges to Indian federalism in different states because of regional languages. For example, in the past, language led to the demand for separate Andhra Pradesh.

Importance of Federalism

1. Governance
   • To bring balance: Federalism aims to maintain a difficult balance between the Centre and the States with decentralization of resources, strengthening them all by bringing the weaker leg forward, creating healthy competition among the States in the form of Health, Sanitation Rankings, etc.
   • For smooth functioning of the nation: The most common analogy given for such a structure is ‘the brain’ and ‘the body parts’. Each organ is dependent on the other for the smooth functioning and growth of the entire body.
   • Prevents concentration of power: Giving too much power to any one person is dangerous.
   • Better governance: In the long run, competition between states will produce better governance than central planning.
   • Testing of new policies: States act as laboratories for experiments—the testing of new public policies. For example, the Mid Day Meal programme started in Tamil Nadu was later adopted in the entire nation.
   • Protection against tyranny: This system ensures a spread of the powers among the three arms which all act as checks and balances to one another. This makes it the ideal system to check the excesses of people who may have dictatorial tendencies.
   • Efficiency in government: When some of the power gets shared among the different levels of government, it gives the states some room to resolve some of their challenges.
   • Better management of conflicts: This is because of the flexibility in creating policies by states. Also, people with different ideologies and approaches to issues can live in different areas and can come up with unique solutions.
   • Increased responsiveness of State Governments: This is because the closer a government is to the people, the quicker and more effective its response would be to their unique needs.
2. For citizens
   • To develop cooperation: The idea is to develop a culture and a set of values and virtues like mutual trust, and a spirit of cooperation among the people and policies.
   • Enhance civil engagement: Empowering citizens to manage their own community’s affairs is supposed to enhance civic engagement in a democracy.
3. For Society
   • To maintain unity: It is about acknowledging and celebrating unity as well as diversity, respecting the boundaries as well as transcending the boundaries.
   • Responsive polity: A responsive polity sensitive to diversities and the demands for autonomy can alone be the basis of a nation.
   • Growth: Federation is said to reduce conflict between diverse communities that encourages innovations and increases the overall growth of society.

Measures to promote Federal Structure

1. Institutions:

• Inter-state Council: Establishment of Inter-State Council under Article 263 of the Constitution to act as a forum for solving issues before they turn into conflicts.
• GST Council: It gives representation to states as well in the application of GST.
• Zonal Councils: In order to discuss matters of common concerns to states in each zone.
• Finance Commission: Providing framework for the distribution of taxes between different states.
• NITI Aayog: Unlike the Planning Commission, it gives representation to states.
• National Development Council and the National Integration Council: They are important forums that provide opportunities for discussion to resolve differences of opinion to promote cooperative federalism.

2. Competitive Federalism

• Improvement in Ease of Doing Business Index: Through the creation of an EoDB Index for Indian States and annual rankings. This sense of competition prompted corrective action and made India a much easier place to do business.
• Aspirational Districts Programme (ADP): Delta rankings published every quarter show worst and best performing districts. This has helped improve outcomes in several areas.

3. Others:

• Article 131: It confers upon Supreme Court of India exclusive jurisdiction to deal with disputes between two or more States or between centre and states.
• Article 262: Under this, Parliament enacted the Interstate River Water Disputes Act, 1956 (IRWD Act) for adjudication of any dispute with respect to the use, distribution or control of the waters of, in any inter-State river or river valley.
• High-powered committee of state chief ministers: To recommend reforms in the Indian agricultural markets.

Way forward (Recommendations of Sarkaria Commission, ARC and Punchhi Commission)

1. Legislative Measures

• Consulting States while legislating: For cultivating better Centre-State relations, some broad agreement has to be reached between Union and States before introducing any legislation in Parliament on matters in the Concurrent List.
• Transferred Entries from List II to III: The Union should be extremely restrained in asserting Parliamentary supremacy in matters assigned to the states and there should be greater flexibility to states in relation to subjects in the State List and “transferred items” in the Concurrent List.
• Subjects under concurrent list occupied by Centre: The Union should occupy only that many of subjects in concurrent jurisdiction which are absolutely necessary to achieve uniformity of policy in demonstrable national interest.
• Time period for Presidential assent to Bills reserved: The period of 6 months prescribed in Article 201 can be made applicable for the President also to decide on assenting or withholding a state bill reserved for consideration of President.
• Reason for withholding bills: When the President withholds his assent to the state bills, the reason should be communicated to state government.
• Residuary Power: The residuary power of taxation should continue to remain with the parliament, while the other residuary powers should be placed in the concurrent list.
• Strengthening Rajya Sabha: Factors inhibiting the composition and functioning of the Second Chamber as a representative forum of states should be removed. There should be equality of representation in the Rajya Sabha.

2. Governors

• Appointment: Governor should be an eminent figure in some walk of life, should be from outside the state and should be a detached figure, not intimately connected with local politics.
• Consulting Chief Minister: The procedure of consulting the Chief Minister in the appointment of State Governor should be prescribed in the Constitution itself.
• Tenure: Governors should have a fixed tenure of five years and their removal should not be at the sweet will of the Central Government.
• Impeachment of Governor: The procedure laid down for impeachment of President, mutatis mutandis, can be made applicable for impeachment of Governors as well.
• Discretionary power: Under Article 163, Governor’s choice of action should be dictated by reason, activated by good faith and tempered by caution.
• Bills passed by Legislative Assembly: In respect of such bills, the Governor should take the decision within six months whether to grant assent or to reserve it for consideration of the President.
• Role in appointment of Chief Minister in hung assembly: In such a case, it is necessary to lay down certain clear guidelines to be followed as Constitutional Conventions.
• Dismissal of Chief Minister: Governor should invariably insist on the Chief Minister proving his majority on the floor of the House for which he should prescribe a time limit.
• Confining role of Governors: Convention of Governors acting as Chancellors of Universities and holding other statutory positions should be done away with. His role should be confined to Constitutional provisions only.

3. Use of Article 356

• Failure of Constitutional machinery: Article 356 should be limited strictly to rectifying a “failure of the Constitutional machinery in the state”.
• Guidelines: To invoke Article 356, suitable amendments are required to incorporate the guidelines set forth in S.R. Bommai v. Union of India (1994).

• Localised emergency: Providing the framework for “localised emergency” would ensure that state government can continue to function and the Assembly would not have to be dissolved.

4. Institutional and Administrative Measures

• Inter-State Council: Suitable amendments to Article 263 are required to make the Inter-State Council a credible, powerful, and fair mechanism for management of interstate and Centre-state differences.
• Auditing role for Inter-state council: There should be a continuing auditing role for the Inter-state Council in the management of matters in concurrent or overlapping jurisdiction.
• Zonal Councils: They should meet at least twice a year with an agenda proposed by states concerned to maximize coordination and promote harmonization of policies and action having interstate ramifications.
• Forum of Chief Ministers: A forum of Chief Ministers, chaired by one of the Chief Ministers by rotation to coordinate policies of sectors like energy, food, education, environment, and health.
• New all-India services: New all-India services should be created in sectors like health, education, engineering, and judiciary.

5. Financial Measures

• Cost sharing: Central legislations involving states’ involvement should provide for cost sharing as in the case of the RTE Act. Existing Central legislations where the states are entrusted with the responsibility of implementation should be suitably amended.
• Royalty rates: The royalty rates on major minerals should be revised every three years and States should be properly compensated for any delay in the revision of royalty beyond three years.
• Professional Tax: The current ceiling on profession tax should be completely done away with by a Constitutional amendment.
• Annual Assessment: For greater accountability, all fiscal legislations should provide for an annual assessment by an independent body and the reports of these bodies should be laid in Parliament/state legislature.
• Terms of Reference of Finance Commission: They should be evenly handled between Centre and States and there should be an effective mechanism to involve the states in the finalization of the ToR.
• Reviewing of cess and surcharges: The Central Government should review all the existing cesses and surcharges with a view to bringing down their share in the gross tax revenue.
• Inter-State Trade and Commerce Commission: It should be set up under Article 307. It should be vested with both advisory and executive roles with decision-making powers.

6. Other Measures

• Three-language formula: Steps should be taken to uniformly implement the three-language formula in its true spirit.
• Commissioner for Linguistic Minorities should be activated.

7. Best practices

• Australia and Canada: Immigration laws in Australia and Canada empower provinces to nominate immigrants seeking to settle within their territory.
  • Similarly, the Union government can include States in how decisions are made and enforced.

INTERSTATE RIVER WATER DISPUTES AMENDMENT BILL, 2019

The Bill seeks to amend the Inter State River Water Disputes Act, 1956 to streamline the adjudication of inter-state river water disputes and make the present institutional architecture robust. A key feature of the bill is the constitution of a single tribunal with different Benches, and the setting of strict timelines for adjudication.

Constitutional Provisions regarding Interstate River Water Dispute

1. Schedule VII (Art. 246)
   • State list (Entry 17): States have power to legislate (under State list) with respect to water (water supplies, irrigation and canals, drainage and embankments, water storage, and water power).
   • Union List (Entry 56): Regulation & development of inter-State rivers and river valleys.
2. Article 262: Adjudication of disputes relating to waters of inter-State rivers or river valleys.
3. Article 263: Establishment of an Inter-State Council to effect coordination between the states and Centre.
4. Article 131: Provides original jurisdiction to the Supreme Court to resolve disputes between the Union and states and inter-State.
5. Article 136: Empowers the Supreme Court to adjudicate on the earlier ruling by the other courts or any other Tribunal can be challenged.

Active cases

Present Dispute Resolution Mechanisms

• Interstate River Water Disputes Act, 1956 (IRWD Act): It was enacted under Article 262 of the Constitution of India to resolve the water disputes that would arise in the use, control, and distribution of an interstate river or river valley.
• River Board Act, 1956: This Act was passed in the parliament to enable the Centre to create Boards to deal with interstate rivers and river valleys in consultation with the State Governments. These Boards aim to advise on aspects related to the inter-state basin to prepare development schemes and prevent conflicts from arising. (It should be noted that no river boards in accordance with this Act have been created till now).
• Composition of Tribunal: The river water tribunal is constituted by the Chief Justice of India. It consists of the sitting judge of the Supreme Court and other two judges of either the Supreme Court or the High Court.

Difference

Provisions

1. Resolution Mechanism: The Bill provides for a two-tier dispute resolution mechanism.
   • First Tier: Once a dispute arises, it would be referred to a Dispute Resolution Committee (DRC)—to be headed by a secretary-level officer.
   • Second Tier: If the committee fails, then the dispute will go to a centralized (single standing) tribunal with multiple benches (instead of the multiple tribunals that exist now).
   • Time Bound: Such referral must be made within 3 months from the receipt of the report from the DRC.
2. Permanent Tribunal: The Bill envisages constituting a standalone Inter-State River Water Disputes Tribunal with permanent establishment having multiple benches.
   • Composition:
     • The tribunal shall consist of a Chairperson, Vice-Chairperson, and not more than six nominated members (judges of the Supreme Court or of a High Court), nominated by the CJI.
     • The central government may appoint two experts serving in the Central Water Engineering Service, not below the rank of Chief Engineer.
3. Time allotted to Tribunal to take its decision:
   • The tribunal must give its final decision within 3 years which can be extended to 2 years. According to the bill, the tribunal must provide the final decision within 2 years. This may be further extended to another year.
   • For further consideration, the Tribunal must provide its report to the Centre within 1 year. This period can be extended by the Union Government. The Bill seeks to specify this time frame to a maximum limit of 6 months.
4. Decision of the Tribunal: The decision of the bench of the tribunal will be final and binding on the parties involved in the dispute on an order of the Supreme Court.
5. Maintenance of data bank and information: The Bill calls for the transparent data collection system at the national level for each river basin and a single agency to maintain data bank and information system.
6. Additional rule-making powers: The Bill gives the central government powers to make rules in which water will be distributed during stress situations arising from shortage in the availability of water.

Challenges in Resolving Disputes

1. Political

• Politicization of Tribunal: The tribunal judge selection committee comprises of the Prime Minister or a nominee as the Chairperson, the Minister of Law and Justice, the Minister of Jal Shakti, and the Chief Justice of the Supreme Court.
  • This composition might pose the risk of states politicizing disputes as well as the adjudication by the tribunal.
• Issues with DRC: The DRC might not be adequately empowered. The Cauvery Supervisory Committee (CSC), which had a similar composition, did not have much success.

• Governance issues: The bill doesn’t fully recognize the need to plug holes in the interstate river water sharing, development, and governance.
• Inordinate delay: There are always inordinate delays in the setting up of tribunals and deciding the award.
  • The right to have a dispute referred to a tribunal under IWSDA (Inter-State Water Dispute Act) is dependent on the opinion of the Central Government that the matter cannot be settled by negotiation.

2. Administrative

• No effective authority: The most prominent problem faced by interstate water dispute is that it does not have any effective authority for the implementation of the order of the tribunal.
• No contempt power: The Tribunal can only give an award but cannot enforce its implementation. It also doesn’t have any powers of punishment for ‘contempt’.

3. Legal

• Delay in courts: The awards of these tribunals, although supposedly final and binding, have been challenged in the courts. The judicial process is essentially a long process which further delays the dispute. E.g., Cauvery water dispute.
• Conflict with Judiciary: The Bill leaves the scope for tussle between the legislature and judiciary. It does not address resolving mechanisms.
• Interference by courts: Though the award given by the tribunal is final and does not come under the jurisdiction of the judiciary, either the States can approach the SC under Article 136 (Special Leave Petition) or the individuals can approach the same under Article 32 by associating the issue with violation of Article 21 (Right to Life).

4. Environmental

• Environmental concerns: Concerns of environmental impacts, rehabilitation measures have not been effectively assessed.
• Improper assessment: Of the river water often creates a situation of threat to the nearby wildlife areas.

Reasons for Rising River Disputes

• Climate and geographical factors: A study in 2011 had predicted that climate change might cause a reduction of up to 50 percent in the waters of the Cauvery sub-basins by 2080.
• Demographic factor: Increasing population in the river basin.
• Uneven distribution of resources: Uneven distribution of water resources along with increasing rainfall variability and frequent droughts.
• Change in agriculture pattern: As farmers are now shifting towards water-intensive crops such as paddy and sugarcane.
• Disputes due to bifurcation of states: Once Telangana came into existence in 2014, the Godavari water and the Polavaram project became the bone of contention.
• Political factors: Regional political forces have grown stronger and assertive with the growing nexus between water and politics, transforming the disputes into turfs of vote bank politics.

Way forward

• Declaration of Rivers as National Property: As done by SC in Cauvery Verdict may reduce the tendency of states.
• Depoliticized: Water disputes need to be depoliticized and not be made an Inter-State Council (ISC) can play a crucial role in facilitating dialogue and discussion towards resolving conflicts.
• Bringing water into concurrent list: As recommended by Mihir Shah report where central water authority can be constituted to manage rivers. It was also supported by a Parliamentary Standing Committee on Water Resources.

• Following 4Rs: Practice the concept of 4Rs (Reduce, Reuse, Recycle, Recover) for water management to achieve goal 6 of the SDGs (Ensure access to water and sanitation for all).
• Interlinking of rivers: Can help in adequate distribution of river water in the basin areas.
• Complying with National Water Policy: For rational use of water and conservation of water sources must be followed.
• Streamlining: Setting up a single, permanent tribunal to adjudicate on inter-state river water disputes could be a major step towards streamlining the dispute redressal mechanism.
• Cooperative approach: There might be problems—legal, administrative, constitutional, and political—that need a cooperative approach.

The problems of water scarcity may worsen the differences between the States with regard to river sharing. A robust dispute redressal mechanism to address this issue is of vital importance at this moment, and the Inter-State River Water Disputes (Amendment) Bill, 2019 is a major step towards resolving the overall problem of water disputes within the country.

MEKEDATU ISSUE

Tamil Nadu has protested against Karnataka’s move to build a reservoir on river Cauvery at Mekedatu. It is “not acceptable” to the state that Karnataka wants to utilise 4.75 TMC as drinking water from a reservoir with a storage capacity of 67 TMC ft. The revenue earned from power generation is expected to compensate the Karnataka government for its investment in the project within a few years.

Issues associated with the project

• Untenable project: The CWDT and the SC have found that the existing storage facilities available in the Cauvery basin were adequate for storing and distributing water, so Karnataka’s proposal is ex-facie (on the face of it) untenable.
• Violation of the Cauvery Water Disputes Award: It has also held that the reservoir is not just for drinking water alone, but to increase the extent of irrigation, which is in clear violation of the Cauvery Water Disputes Award.
• Multiple clearances: The project will need multiple clearances from the Centre and courts as it involves the Cauvery water sharing dispute.
• Affects Natural Habitats: The proposed land for the submergence zone is habitat for certain threatened species. The project will adversely impact their natural habitat.
• Tamil Nadu’s opposition: Any dam proposal by upper riparian states in the Cauvery basin would deprive Tamil Nadu’s delta farmers of their rightful share of water.
• Bangalore’s drinking water crisis: It aims to supply drinking water to Bengaluru and surrounding regions but has been challenged in the SC by Tamil Nadu on the ground that it would eat into the state’s share of Cauvery water as adjudicated by the court in 2018.
• Environmental damage: Almost 63% of the forest area of the Cauvery Wildlife Sanctuary will be submerged in the project.

Way Forward

• Coordination: The states need to shed the regional approach as the solution lies in cooperation and coordination, not in conflict. The planning must be done at the basin level to make the solution sustainable and ecologically viable.
• Alternate recharge mechanism: In the long term, there is a need to recharge the river through afforestation, river linking, etc.
• Efficiency improving mechanisms: Increased focus is needed on increasing water use efficiency, such as micro-irrigation, and raising awareness in people to prudently use water and adopt smart strategies.

Arguments in Favour of AFSPA

1. By Armed forces
   • Effective Counter-insurgency: A strict law is needed to tackle the insurgent elements inside the country, particularly in the Kashmir and northeastern region.
   • Protection of member of armed forces: It is crucial to empower members of armed forces who constantly face threats to their lives at the hands of insurgents and militants. Its withdrawal would result in poor morale.
   • Operational requirements: Absence of such a legal statute would adversely affect organisational flexibility and the utilisation of the security capacity of the state armed forces, preventing them from fulfilling their assigned role.
2. By Government
   • Protect borders: With the powers given by AFSPA, the armed forces have been able to protect the borders of the country for decades.
   • Lack of effectiveness of CrPC: Normal CrPC provides limited power to deal with violent situations.
   • To counter internal force: In disturbed areas, the involvement of proxy groups is also present, necessitating extra-ordinary powers to break that nexus.
   • Asymmetric warfare: Extra-ordinary powers are also necessary as the armed forces face asymmetric warfare involving raids, ambushes, mines, explosive devices, sabotage, etc.
   • Security of nation: Provisions of this act have played a crucial role in maintaining law and order in disturbed areas, thereby protecting the sovereignty and security of the nation.

Arguments Against AFSPA

1. By activists
   • Abuse of power: It has been alleged that immunity granted by the act has led the armed forces to misuse their powers and commit offences such as enforced disappearances, fake encounters, and sexual assault.
     • For example: It also grants them powers to arrest individuals without warrants, based on “reasonable suspicion”, and search premises without warrants.
   • Threat to justiciable fundamental rights: It leads to suspension of fundamental rights and liberties guaranteed to citizens by the constitution, weakening democracy.
   • Human rights violations: AFSPA areas are not inquired into and adequately followed up with action, which goes against the principle of natural justice.
     • For example: In Nagaland, 60 years of living under the AFSPA regime has led to psychological consequences, trauma, and alienation among the people. The use of force and AFSPA furthered the feeling of alienation of the Naga people, solidifying Naga nationalism.
   • License to kill: AFSPA provides armed forces with a license to kill.
     • For example: It allows them to open fire, even causing death, against any person in contravention of the law or carrying arms and ammunition.
   • Issue of Fake encounters: In a writ petition filed in the Supreme Court in 2012, the families of victims of extra-judicial killings alleged that 1,528 fake encounters took place in the state from May 1979 to May 2012. The Supreme Court set up a commission to scrutinise six of these cases, and the commission found all six to be fake encounters.
   • Poor investigation: Cases in Nagaland have not been adequately investigated. In Manipur, with the Supreme Court’s intervention, the CBI has investigated 39 cases (94 killings) only.
2. By Historian
   • Colonial-era law: AFSPA is generally compared to the Rowlatt Act of the British regime because, just like the Rowlatt Act, any suspicious person can be arrested only based on doubt under AFSPA.
   • Draconian law: AFSPA is described as draconian, repressive, colonial, and archaic law in Indian democracy.
3. By International Critics
   • Against international convention: Experts have raised the question about the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR.
4. By People
   • Diminishing credibility of democracy: People’s disillusionment with democratic setup is exploited by secessionists and terror sympathizers, which leads to more violence and counter-violence, creating a vicious cycle.
   • Ineffective: Citizens argue that this act has failed in its objective of restoring normalcy in disturbed areas despite being in existence for about 50 years.
   • Repressive: People feel repressed in AFSPA areas, as has been largely argued by J and K natives.
   • Not a better solution: Citizens assert that there is no need to run the nation on the basis of the bullet when the issue could be addressed on the basis of the ballot (election).
   • Inhuman: It is inhumane to make people live in curfew-like conditions for their entire lives.
   • Alienation: Abolition would bring down the feeling of alienation in people of particular states, especially the north-east.
   • Against democratic principles: The very basic tenets of democracy, which espouse the principles “of the people, by the people, and for the people,” have stood negated. 
5. By States
   • Bypassing State: There have been instances where the Centre has overruled the state, such as the imposition of AFSPA in Tripura in 1972.

Safeguards Provided in the Act

• Section 5 of the Act: Mandates that arrested civilians should be handed to the nearest police station with ‘least possible delay’ in addition to a ‘report of circumstances that led to the arrest’.
• Handover to civilian authority: Army HQ has also mandated that all suspects who are arrested will be handed over to civilian authorities within 24 hours.
• Army’s guidelines: A fire may be opened in towns and villages only in self-defense and that too when the source of terrorist or militant fire can be clearly identified.

Important Cases and Judicial Role

1. Naga People’s Movement of Human Rights v. UoI: The Supreme Court has upheld the constitutionality of AFSPA.
   • Suo-motto declaration: Can be made by the Central government, but it is desirable that the state government should be consulted before making the declaration.
   • No arbitrary power: AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’.
   • Fixed timeline: The declaration has to be for a limited duration, and there should be a periodic review of the declaration after 6 months have expired.
   • Use minimal force: The authorised officer should use minimal force necessary for effective action.
   • ‘Dos and Don’ts’: The authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.
2. Indrajit Barua v The State of Assam: The court found and declared that it is the duty of the state to assure the protection of its citizens and their rights guaranteed under Article 21, which is also given to people where AFSPA is enforced.
3. July 2016 judgement: The Supreme Court directed armed forces and police not to use “excessive or retaliatory force” in areas declared ‘disturbed’ where AFSPA is applicable.
4. Enquiry: Recently, the Supreme Court ruled that every death caused by armed forces in a disturbed area involving either a common person or an insurgent must be thoroughly enquired into to find out whether the killing was extra-judicial or not.
5. No absolute immunity: There is no absolute immunity for armed forces personnel who commit a crime even in a disturbed area.
6. Supreme Court: The Supreme Court was hearing the plea demanding a probe into 1,528 deaths alleged to be fake or extra-judicial encounters by the armed forces in the state of Manipur.

Way Forward

1. Solutions Suggested by Committees

• BP Jeevan Reddy committee: Examining it in relation to the Northeast in 2005, and the Veerappa Moily report of the Second Administrative Reforms Commission of 2007, recommended that the Act be repealed.
• Justice Verma Committee (2013) and the Justice Hegde Commission (2013): Supported the need to address the abuses committed under AFSPA and end the effective impunity enjoyed by security forces.

2. Need of the hour

• Adherence to Human rights: It needs to be emphasized that human rights compliance and operational effectiveness are not contrarian requirements. In fact, adherence to human rights norms and principles strengthens the counter-insurgency capability of a force.
• Robust safeguards: Protection for the armed forces must be accompanied by provisions that ensure responsibility and accountability, within the parameters of law. For this reason, robust safeguards need to be incorporated into the existing or any new law.
• Removing ambiguity in law: The terms like “disturbed”, “dangerous”, and “land forces” need to be clearly defined to ensure greater clarity.
• Ensuring transparency: Greater transparency in communicating the status of existing cases should include its display on the army and government’s websites.
• Independent inquiry: Every death caused by the armed forces in a disturbed area, be it of a common person or a criminal, should be thoroughly enquired into.

In 2000, the activist Irom Sharmila began a hunger strike that would continue for 16 years against AFSPA in Manipur. It’s a peak time to think about AFSPA and its powers, so that the Northeast and other areas under its grip become emotionally integrated with India.