INTRODUCTION
In 2004, thirty-two women staged a naked protest outside Kangla Fort in Imphal, holding banners that read “Indian Army Rape Us.” This followed the killing of Thangjam Manorama Devi, whose bullet-ridden body was found near her home. The protest, to this date, remains one of the most powerful symbols of resistance in modern Indian history, underscoring that when the legal system fails, survivors and people failed by authorities who are supposed to protect them often resort to collective protest to highlight their suffering.
Two decades later, even after the protests of citizens, practically no progress has been made. The Armed Forces Special Powers Act 1958 (AFSPA) continues to operate in parts of Jammu & Kashmir and several Northeastern states. It grants soldiers plenary powers to search, to raid, and to use excessive force against citizens, while shielding them from prosecution unless prior sanction is granted by the Central Government. Women in conflict zones bear the brunt of these powers, and Indian law does not have a post-traumatic justice framework that goes beyond conviction to survivor rehabilitation.
AFSPA AND THE LEGAL SHIELD OF SECTION 6
Armed Forces (Special Powers) Act, 1958 was drafted when India was still absorbing the shocks of partition and was facing insurgencies in the Northeast and J&K. Section 4 of the AFSPA hands armed forces personnel the power to fire upon, arrest without warrant and enter and search any premises in a “disturbed area” declared by the governor of the state under Section 3 of the Act, while Section 6 does something far more consequential it bars any prosecution, suit or legal proceeding against a soldier for acts done under the Act, unless the Central Government grants prior sanction[1]. In practise, this sanction is rarely given. What looks like a procedural formality on paper is, in the ground reality, a near permanent shield.
For survivors of sexual violence, this shield operates with particular cruelty. Ordinary criminal law expects a complaint to move swiftly, like a medical examination within hours, and FIR registration etc. before the memory and body both begin to fade. Under AFSPA, that timeline collapses. A woman assaulted by a soldier in a military zone often cannot access a magistrate, a hospital or even physical safety in the immediate aftermath. Seeking legal action becomes even harder when prior government sanction is required before the prosecution can begin. If, by chance, a sanction is sought, for the most part, forensic evidence has degraded, witnesses have been intimidated, and the survivor herself has absorbed the social cost of speaking up. AFSPA’s sanction requirement hinders the normal legal process, making prosecution dependent on government approval rather than the regular justice system[2].
JUDICIAL STANCE ON AFSPA
The Supreme Court had two real opportunities to challenge AFSPA’s working and powers. Both times, it fell short of dismantling the very structure that makes accountability so difficult. In Naga People’s Movement of Human Rights v Union of India 1998, the Court had an opportunity to strike down the very provision that allowed impunity. It didn’t. The five-judge bench upheld the constitutionality of Section 6. The reasoning was that the armed forces needed such protection to operate in truly disturbed areas. However, the judgement was not a carte blanche, and the Court read a set of “do’s and don’ts” like governing arrests, search and use of force, procedural safeguards which were meant to guide how force could be used lawfully, including handing over the arrested person to the nearest police station without delay.[3] On paper, it was a compromise on security and rights. In practice, guidelines without an enforcement mechanism tend to gather instability, and decades of documented abuse in Manipur, Nagaland and J&K suggest that is exactly what happened here.
The court came closer to addressing the gap in the Extra Judicial Execution Victim Families Association (EEVFAM) v Union of India, where it examined over a thousand alleged fake encounters in Manipur. The Court held that the armed forces cannot claim blanket immunity by claiming the status of a “disturbed area”.[4] The judgement directed an investigation into individual cases and was one of the rare instances of judicial willingness to look beyond the procedural wall of AFSPA. But here too the relief was case-dependent. The court looked at each encounter individually and did not translate the magnitude of the abuse into a lasting reform, such as an independent oversight body, a separate investigative agency, or a clear compensation system for future victims.
What we see in both judgments, taken together, is a judicial willingness to name the problem, but a reluctance to restructure the system that produces it.
AFSPA AND THE JUSTICE SYSTEM
Most of the time, Indian criminal law narrows the idea of justice to this: a complaint is made, there is a trial, someone is convicted and then “justice” has been done. That model may work for ordinary crimes, but it falls apart completely under AFSPA. Section 6 of AFSPA makes conviction structurally improbable.[5] Survivors of sexual violence are thereby excluded from the law’s operative definition of justice.
The same is true for compensation. The Bharatiya Nagarik Suraksha Sanhita (BNSS), Section 396 does provide victim compensation schemes for sexual violence, but they assume a working investigation and an accused that the state is willing to pursue.[6] These assumptions may not be readily sustained in cases arising under AFSPA, particularly where the accused are members of the armed forces. The state that would compensate the survivor is also the state that must sanction a case against its own soldier.
India’s most significant recent reform, i.e., the Justice Verma Committee, formed after the 2012 Delhi gang sexual assault case, couldn’t resolve this issue entirely. The committee rewrote large parts of India’s sexual violence law, yet left AFSPA’s immunity provisions completely untouched. A committee prepared to overhaul the law at its root chose not to extend the scrutiny to cases involving the armed forces.
REFORMS AND SOLUTIONS
The gap in the law need not lead to the repeal of AFSPA but should have included certain institutional safeguards. Such as:
- The idea that relief should be separated from prosecution is that compensation and rehabilitation should not be based on punishment. There should be a special, independent fund to provide immediate support for survivors no matter whether or not there is a prosecution.
- When areas that have been disturbed require independent medical and psychological documentation to be produced within a specified time frame, this documentation must be kept as admissible evidence even if there are delays in obtaining sanction.
- There should be independent reporting procedures so that survivors can access civilian redress cells which are separate from the chains of command of the military and police; this is in keeping with UN Security Council Resolution 1820 (2008), which states that conflict-related sexual violence needs dedicated institutional responses[7].
The suggestions are careful developments of the problems already identified, not bold assertions; their purpose is to alleviate evidentiary decay, decrease a survivor’s reliance on sanctions, and offer reliable means of reporting.
NECESSITY OF AFSPA
People claim that the AFSPA is still necessary on the grounds of the operational situations that exist in areas affected by insurgency. In counter-insurgency operations, it is common for the situation to be hostile and delay in action could result in deaths. They say that the requirement for sanction serves to protect soldiers from being involved in tedious legal proceedings which might bring operations to a standstill.
The fact that India has very long borders with hostile neighbours makes this need all the greater. If there were no legal protection, soldiers might hesitate at crucial moments, thus compromising military effectiveness and national security.
CONCLUSION
The terror caused by AFSPA shows us how giving blind power to an entity leads to public distress and lack of faith in authorities, but repealing AFSPA will not undo the harm already suffered by women who lived under its enforcement. It will not restore years lost to unreported trauma, compensate survivors whose cases never reached courtrooms, or provide the medical and psychological care that should have been available at the moment of harm.
The debate around AFSPA has been reduced to retention versus repeal, as though its political fate were the only question worth asking. But justice for survivors cannot be contingent on that outcome. What India requires is readiness mechanisms that exist regardless of AFSPA’s future. Whether the Act is quashed or retained, the women it has already failed continue to await justice.
Author(s) Name: Farhan Javed Pattekari (Rizvi Law College, Mumbai University)
References:
[1] Armed Forces (Special Powers) Act 1958, ss 4-6
[2] Meenakshi Ganguly, ‘”These Fellows Must Be Eliminated”: Relentless Violence and Impunity in Manipur’ (Human Rights Watch, 29 September 2008) <https://www.hrw.org/report/2008/09/29/these-fellows-must-be-eliminated/relentless-violence-and-impunity-manipur> accessed 21 July 2026.
[3] Naga People’s Movement of Human Rights v Union of India (1998) 2 SCC 109.
[4] Extra Judicial Execution Victim Families Association (EEVFAM) v Union of India (2016) 14 SCC 578.
[5] Armed Forces (Special Powers) Act 1958, s 6.
[6] Bharatiya Nagarik Suraksha Sanhita 2023, s 396
[7] United Nations Security Council Resolution 1820 (2008), S/RES/1820(2008) (19 June 2008) <https://www.un.org/shestandsforpeace/content/united-nations-security-council-resolution-1820-2008-sres18202008> accessed 17 July 2026