[Deepanshu Poddar and Vrinda Aggarwal, students at the Jindal Global Law School, Sonipat discuss the possibility of judicial review of actions undertaken by the armed forces under the aegis of the Armed Forces (Special Powers) Act, 1958.]

Abstract

The scope of enquiry in this article is confined to the possibility of judicial review of actions undertaken by the armed forces under the aegis of the Armed Forces (Special Powers) Act, 1958 (hereinafter “AFSPA”). Ideologically, the article poses to be a liberal reading of the law since it suggests taming the Act by introducing judicial review as a safeguard against any action undertaken by the armed forces under Section 4 of the Act. Consequently, it presumes the constitutional validity of the Act. The word “rationalising” is therefore aptly employed to describe the methodology of this article.

The article would commence with deconstructing the nature of the role played by the armed forces as defined under AFSPA, which is “to act in aid of civil authorities”. Based on this, it would be argued that the courts possess the jurisdiction to review the actions undertaken under Articles 32 and 226 of the Constitution. Lastly, the article would discuss a cogent standard of review which could be effectively employed by the courts to review violations of a fundamental right.