There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement (Naga People’s Movement of Human Rights v. Union of India).
In this judgement, the Supreme Court arrived at certain conclusions including:
- a suo-motto declaration can be made by the Central government; however, it is desirable that the state government should be consulted by the central government before making the declaration;
- AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’;
- the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired;
- while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action,
- the authorised officer should strictly follow the ‘Dos and Don’ts’ issued by the army.
In 2016, the Supreme Court has said that the Army is not immune to any prosecution by criminal court if found committing any offence.