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Article
Martial Law in India - The Deployment of Military under AFSPA
Southwestern Journal of International Law (2018)
  • Khagesh Gautam
Abstract
The question for inquiry in this article is whether the key provisions of the Armed Forces Special Powers Act, 1958 (“AFSPA”), an Indian Parliamentary legislation, amount to a de facto proclamation of Martial Law in India. The constitutional validity of AFSPA has been upheld by a unanimous constitution bench of five judges of the Supreme Court of India. But the AFSPA has not yet been examined from the Martial Law perspective. In order to engage in this inquiry, this article briefly traces the development of the idea of Martial Law and argues that military acting independent of the control of civilian authorities is the most important feature of Martial Law. This article also argues that in order for a geographical area to be under Martial Law, there is no need to have a formal promulgation of the same. In other words, an area can be under Martial Law without formally being so declared. They key feature to note is whether the military is acting independent of the civilian control or not. The AFSPA is then analyzed from this angle and it is concluded that when the AFSPA becomes applicable to any area in India, that area is under de facto Martial Law. The question of whether or not the Indian Constitution impliedly or expressly authorizes the proclamation of Martial Law is a natural follow-up question that is left for future examination. However, the Supreme Court’s decision upholding the constitutional validity of the AFSPA is criticized on the ground that the Court should have recognized and called the AFSPA as what it truly is – a legislation authorizing a de facto proclamation  of Martial Law in India.
Keywords
  • Martial Law,
  • AFSPA,
  • Emergency Powers,
  • Constitution of India,
  • Indian Constitution,
  • Martial Law in India,
  • De facto Martial Law,
  • Indian Army
Publication Date
Summer April 6, 2018
Citation Information
Khagesh Gautam, Martial Law in India: The Deployment of Military under Armed Forces Special Powers Act, 1958, 24 SW. J. Int'l L. 117 (2018)