Human Rights and Armed Conflicts in India
Learning Objectives
By the end of this topic, you should be able to:
- Distinguish International Humanitarian Law (IHL) from International Human Rights Law (IHRL) and explain when each applies.
- Explain the lex specialis relationship between IHL and IHRL during armed conflict.
- List the four Geneva Conventions (1949) and the two 1977 Additional Protocols, and state what each protects.
- Identify which fundamental rights can be derogated during a national emergency under Article 359 of the Constitution, and which cannot.
- Explain how AFSPA operates in "disturbed areas" and summarize the Supreme Court's reasoning in Naga People's Movement for Human Rights v. Union of India (1998).
- Analyse a fact pattern involving the use of force by security forces during internal armed conflict and identify the applicable legal framework.
Quick Answer
Human rights and armed conflict is the study of how law protects people when a state is fighting a war, an insurgency, or facing internal armed violence. Two bodies of law operate together: International Humanitarian Law (IHL), the "law of war" found in the Geneva Conventions, which regulates how conflicts are fought and protects those not fighting; and International Human Rights Law (IHRL), which protects individual rights at all times, including during conflict, though some rights can be suspended (derogated) in genuine emergencies. It matters because India faces sustained internal armed conflict — insurgencies in the Northeast and militancy in Jammu & Kashmir — where laws like AFSPA give the armed forces extraordinary powers. Courts must constantly balance national security against constitutional guarantees under Articles 14, 19, and 21.
Overview
War does not suspend law — it changes which law applies and how strictly it is enforced. When conflict breaks out, two distinct legal regimes come into play. International Humanitarian Law (IHL), also called the law of armed conflict, was built specifically for wartime: it tells combatants who they may target, how prisoners must be treated, and how civilians must be spared. International Human Rights Law (IHRL), by contrast, applies at all times — in peace and in war — and protects the individual against the state.
The two bodies overlap and reinforce each other, but they were built for different purposes: IHL assumes killing and detention will happen and tries to keep it humane and limited; IHRL starts from the presumption that life, liberty, and dignity should not be interfered with at all, absent due process.
India has never used the word "war" for most of its internal conflicts — insurgencies in Nagaland, Manipur, Assam, and militancy in Jammu & Kashmir are legally treated as internal disturbances, not international armed conflicts. This matters because it keeps these situations formally inside Indian constitutional and criminal law, governed by special statutes such as the Armed Forces (Special Powers) Act, 1958 (AFSPA), rather than by the Geneva Conventions, which apply in full only to international armed conflicts (with a limited baseline, Common Article 3, applying to non-international armed conflicts). Understanding this topic means understanding how India's courts have tried to keep constitutional rights alive even where the army operates with unusual powers.
Core Concepts
1. International Humanitarian Law (IHL) vs. International Human Rights Law (IHRL)
Definition IHL is the body of international law that regulates the conduct of armed conflict and protects persons who are not, or are no longer, taking part in hostilities (civilians, the wounded, prisoners of war). IHRL is the body of law — treaties like the ICCPR and ICESCR, plus domestic constitutional guarantees — that protects the rights of individuals against the state at all times.
Explanation IHL applies only during armed conflict (international or non-international) and binds all parties to the conflict, including non-state armed groups. IHRL applies continuously, in peacetime and wartime, and binds states toward everyone within their jurisdiction. Where both apply simultaneously, international law treats IHL as the lex specialis (the more specific law) for conduct of hostilities questions — for example, whether a combatant killed in battle was "arbitrarily deprived of life" is judged by IHL's targeting rules, not by ordinary human rights standards on lethal force.
Example A soldier lawfully shoots an enemy combatant in battle. Under IHL this is a lawful act of war. If a police officer shot the same person walking down a street in peacetime, it would be an unlawful killing under IHRL.
Real-World Example In Jammu & Kashmir, the Indian government has consistently characterised the situation as an internal security problem to be dealt with under domestic criminal and special-powers law (IHRL-plus-domestic-law framework), not as an international armed conflict governed by the Geneva Conventions in full — precisely because classification carries major legal and political consequences.
Why It Matters Classification determines the rulebook. If a situation is IHL-governed, harsher rules on the use of lethal force against combatants apply. If it stays within IHRL, ordinary standards of necessity, proportionality, and accountability under domestic and constitutional law apply.
Common Misunderstanding Students often assume IHL and IHRL are mutually exclusive — that war law "switches off" human rights law entirely. In fact, IHRL continues to apply during armed conflict except where states have lawfully derogated from specific rights; several rights (like the prohibition on torture) can never be suspended, in war or peace.
2. The Geneva Conventions and Additional Protocols
Definition The four Geneva Conventions of 1949, together with their two 1977 Additional Protocols, form the core treaty framework of modern IHL. India has ratified all four 1949 Conventions but has not ratified the 1977 Additional Protocols.
Explanation
- Convention I — protects wounded and sick soldiers on land.
- Convention II — protects wounded, sick, and shipwrecked military personnel at sea.
- Convention III — governs treatment of prisoners of war.
- Convention IV — protects civilians in the hands of an enemy power or occupying force.
- Common Article 3, found in all four Conventions, sets a minimum baseline of humane treatment applicable even in non-international armed conflicts (like internal insurgencies) — prohibiting murder, torture, cruel treatment, and unfair trials of anyone not actively fighting.
- Additional Protocol I (1977) extends protections in international armed conflicts; Additional Protocol II (1977) expands protections in non-international armed conflicts beyond Common Article 3.
Example If captured personnel are held during an international armed conflict, Convention III requires humane treatment, adequate food, and no coercive interrogation — regardless of what the detaining state's domestic law says.
Real-World Example India, as a state party to the four Geneva Conventions, enacted the Geneva Conventions Act, 1960, to give domestic legal effect to its treaty obligations, including penalising grave breaches such as wilful killing or torture of protected persons.
Why It Matters The Conventions represent the near-universal legal floor for humane conduct in war. Even states not party to a specific instrument are often bound by customary international law reflecting these rules.
Common Misunderstanding Students often assume the Geneva Conventions automatically apply to India's internal insurgencies in full. In reality, most of the detailed protections apply to international armed conflicts; internal conflicts are covered only by the thinner baseline of Common Article 3 (and, for treaty parties, Additional Protocol II) — India, having internal disturbances and not being a party to the Protocols, primarily relies on its own Constitution and statutes like AFSPA and the UAPA for these situations.
3. Derogable vs. Non-Derogable Rights (Article 359 and Emergency)
Definition Derogable rights are rights that a state may lawfully suspend or restrict temporarily during a declared public emergency. Non-derogable rights can never be suspended, regardless of the emergency's severity — under international law (Article 4, ICCPR) these include the right to life, freedom from torture, freedom from slavery, and freedom from retroactive criminal punishment.
Explanation Under the Indian Constitution, Article 352 allows the President to proclaim a national Emergency. Article 359 then allows the President to suspend the enforcement of certain fundamental rights (typically Articles 14, 19, 21, and 22, excepting the core of Article 20 and 21 after the 44th Amendment) for the duration of the Emergency, by suspending citizens' right to move courts for their enforcement. Crucially, after the 44th Constitutional Amendment (1978) — a direct response to the abuses of the 1975-77 Emergency — Articles 20 and 21 (protection against arbitrary conviction, and the right to life and personal liberty) can never be suspended, even during an Emergency.
Example During a proclaimed Emergency, the government could validly restrict freedom of movement or association under Article 19 for security reasons. It cannot, however, suspend the right to life and personal liberty under Article 21 or protection against ex-post-facto laws under Article 20.
Real-World Example The Supreme Court's later jurisprudence, especially after Maneka Gandhi v. Union of India (1978) and the 44th Amendment, reversed the disastrous logic of ADM Jabalpur v. Shivkant Shukla (1976), where the Court had controversially allowed suspension of the right to move courts even for illegal detention during the Emergency. That precedent is now widely regarded as wrongly decided and was effectively overruled by K.S. Puttaswamy v. Union of India (2017).
Why It Matters This distinction is what stops "national security" from becoming a blank cheque. Even in the gravest crisis, a state cannot lawfully torture, arbitrarily kill, or convict someone under a law that did not exist when they acted.
Common Misunderstanding Students often think Emergency provisions "suspend the Constitution" or "suspend fundamental rights" outright. In fact, Article 359 suspends the right to approach courts to enforce certain rights for a limited period — and even that power no longer extends to Articles 20 and 21 after 1978.
4. AFSPA and Internal Armed Conflict in India
Definition The Armed Forces (Special Powers) Act, 1958 (AFSPA) grants the armed forces special powers to maintain public order in areas declared "disturbed areas," including powers to arrest without warrant, search premises, and, if necessary, use force — even to the extent of causing death — against persons acting in contravention of law.
Explanation AFSPA was originally enacted to deal with insurgency in the Naga Hills and has since been extended (and periodically withdrawn from parts) of several Northeastern states and, for a period, Jammu & Kashmir. Section 3 empowers the state or central government to declare an area "disturbed." Section 4 gives officers the power to fire upon or use force, arrest without warrant, and enter and search premises without a warrant. Section 6 requires prior sanction of the central government before any prosecution, suit, or legal proceeding can be instituted against armed forces personnel for acts done under the Act — a provision that has drawn the most sustained human rights criticism because it functions, in practice, as strong immunity from accountability.
Example In a "disturbed area," a soldier may arrest a suspected insurgent without a warrant and use force believed necessary to prevent the commission of a cognizable offence — powers ordinary police do not have to this extent.
Real-World Example In Naga People's Movement for Human Rights v. Union of India, (1998) 2 SCC 109, the Supreme Court upheld the constitutional validity of AFSPA but read down its powers, holding that the power to use force under Section 4 must be exercised with "minimum force necessary," subject to "do's and don'ts" issued by the Army, and that Section 6 sanction requirements do not amount to blanket immunity — the government must apply its mind to each sanction request. Later, in Extra Judicial Execution Victim Families Association (EEVFA) v. Union of India (2016), concerning alleged fake encounters in Manipur, the Court held that AFSPA does not grant blanket immunity from investigation for excessive or retaliatory use of force, and every death caused by the armed forces in a disturbed area is open to enquiry.
Why It Matters AFSPA sits at the exact fault line between IHL-style "combat" powers and ordinary IHRL-based accountability. It shows how a state can lawfully grant its forces exceptional powers to fight an internal armed conflict while courts try to hold the line on Articles 14, 19, and 21.
Common Misunderstanding Students frequently believe AFSPA gives the armed forces "total immunity" for anything done in a disturbed area. Courts have repeatedly rejected this — sanction under Section 6 is not automatic, and both Naga People's Movement and EEVFA make clear that unlawful or excessive force remains open to investigation and prosecution.
5. Protection of Civilians, Combatants, and War Crimes Accountability
Definition IHL distinguishes between combatants (who may lawfully be targeted) and civilians (who enjoy protection from direct attack unless and for such time as they take a direct part in hostilities). Serious violations of IHL — such as wilful killing of civilians, torture, or taking hostages — are classified as war crimes, which can attract individual criminal responsibility.
Explanation This distinction (the "principle of distinction") is one of the foundational rules of IHL, alongside proportionality (incidental civilian harm must not be excessive relative to the military advantage gained) and necessity (force used must be necessary to achieve a legitimate military purpose). Accountability mechanisms range from domestic courts martial, to international tribunals (like the ICC, which India has not ratified the Rome Statute for), to truth and reconciliation processes.
Example Deliberately shelling a hospital known to contain only patients and staff, with no military target present, would be a clear violation of the principle of distinction and could amount to a war crime.
Real-World Example Domestic Indian law addresses analogous accountability through ordinary criminal law and special statutes — the Unlawful Activities (Prevention) Act, 1967 targets terrorism and unlawful associations, while the Protection of Human Rights Act, 1993 created the National and State Human Rights Commissions, which can inquire into alleged violations by security forces (though their powers regarding the armed forces are limited to seeking reports from the government).
Why It Matters Without a workable distinction between combatants and civilians and a real mechanism for accountability, "armed conflict" becomes a label used to excuse any use of force. This is why courts insist that even lawful special powers (like AFSPA) remain subject to judicial review.
Common Misunderstanding Students often assume war crimes only apply to interstate wars. In fact, serious violations of Common Article 3 in non-international armed conflicts (including grave breaches against civilians in an internal insurgency) can also constitute war crimes under customary international law and, where applicable, international criminal law.
Visual Learning
Key Terms
| Term | Definition | Context |
|---|---|---|
| International Humanitarian Law (IHL) | Law regulating the conduct of armed conflict and protecting non-combatants | Also called "law of war"; Geneva Conventions are its core |
| International Human Rights Law (IHRL) | Law protecting individual rights against the state, in peace and war | Applies continuously; some rights derogable in emergencies |
| Lex specialis | Principle that more specific law governs over general law when both apply | Used to decide whether IHL or IHRL rules control a wartime conduct question |
| Common Article 3 | Minimum humane-treatment baseline in all four Geneva Conventions | Applies to non-international armed conflicts like insurgencies |
| Derogation | Temporary, lawful suspension of the enforcement of certain rights during emergency | Governed in India by Article 359; internationally by Article 4, ICCPR |
| Non-derogable rights | Rights that can never be suspended, even during emergency | E.g., right to life, freedom from torture, protection under Article 20/21 |
| AFSPA | Armed Forces (Special Powers) Act, 1958 | Grants extraordinary powers to armed forces in "disturbed areas" |
| Disturbed area | Area formally declared under AFSPA where special powers apply | Declared by central or state government under Section 3 |
| Combatant | Person who may lawfully be targeted in armed conflict | Distinguished from civilians under the principle of distinction |
| War crime | Serious violation of IHL attracting individual criminal responsibility | E.g., wilful killing of civilians, torture, hostage-taking |
| Principle of proportionality (IHL) | Incidental civilian harm must not be excessive compared to military advantage | Core rule limiting lawful use of force in conflict |
Common Mistakes
Misconception 1: "The Geneva Conventions govern India's internal insurgencies in full." Why it's wrong: The full protections of the Geneva Conventions (Conventions I-IV) are designed for international armed conflicts between states. India's internal conflicts are non-international in character. Correct explanation: Only the minimum baseline of Common Article 3 (and, for parties to it, Additional Protocol II — which India has not ratified) applies to internal armed conflict. India instead governs these situations mainly through domestic law: the Constitution, AFSPA, and the UAPA.
Misconception 2: "AFSPA gives soldiers complete legal immunity for any act." Why it's wrong: This ignores the Supreme Court's rulings in Naga People's Movement for Human Rights v. Union of India (1998) and EEVFA v. Union of India (2016), both of which held that AFSPA does not create blanket immunity and that excessive or unlawful force remains subject to sanction requirements and investigation. Correct explanation: Section 6 requires "sanction" before prosecution, but the government must apply its mind to each case, and the Court has directed that the use of force be limited to the "minimum force necessary," consistent with published do's and don'ts.
Misconception 3: "A national Emergency suspends all fundamental rights." Why it's wrong: Article 359 only suspends the right to move courts to enforce certain listed rights during the Emergency's operation — it does not erase the rights themselves, and it has never covered every right. Correct explanation: Since the 44th Constitutional Amendment (1978), Articles 20 and 21 can never be suspended under Article 359, regardless of the Emergency's severity — a direct constitutional correction after the abuses associated with ADM Jabalpur during the 1975-77 Emergency.
Comparison and Connections
| Aspect | International Humanitarian Law (IHL) | International Human Rights Law (IHRL) |
|---|---|---|
| When it applies | Only during armed conflict (international or non-international) | At all times, peace and war |
| Who it binds | All parties to a conflict, including non-state armed groups | Primarily states, toward everyone in their jurisdiction |
| Core purpose | Limit suffering and protect non-combatants during hostilities | Protect individual dignity and freedom from state overreach |
| Can it be suspended | No derogation mechanism as such — it is designed for conflict | Yes, partially, through lawful derogation (e.g., Article 359 in India) |
| Key instrument | Geneva Conventions (1949) + Additional Protocols (1977) | ICCPR, ICESCR, Indian Constitution's fundamental rights |
| Aspect | Derogable Rights | Non-Derogable Rights |
|---|---|---|
| Can be suspended in emergency | Yes, temporarily and to the extent stated | Never |
| Indian examples | Articles 19, 22 enforcement (under Article 359) | Articles 20 and 21 (post-44th Amendment) |
| International examples | Freedom of assembly, some due-process guarantees | Right to life, freedom from torture, prohibition on retroactive punishment |
| Rationale | Balances state's emergency needs against rights | Represents the absolute floor of human dignity |
| Aspect | International Armed Conflict (IAC) | Non-International Armed Conflict (NIAC) |
|---|---|---|
| Parties | Between two or more states | Between a state and organised armed group(s), or between such groups |
| Governing law | Full Geneva Conventions I-IV + Additional Protocol I | Common Article 3 + Additional Protocol II (if ratified) |
| Indian relevance | Not currently applicable to India's internal situations | Applies conceptually to insurgencies in the Northeast and J&K, though India governs these mainly via domestic law |
Practice Questions
Recall
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Name the four Geneva Conventions of 1949 and state what each protects. Answer guidance: Convention I – wounded/sick on land; Convention II – wounded/sick/shipwrecked at sea; Convention III – prisoners of war; Convention IV – civilians in enemy hands.
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Which two Articles of the Indian Constitution can never be suspended during a national Emergency, even under Article 359, after the 44th Amendment? Answer guidance: Article 20 (protection against arbitrary conviction) and Article 21 (right to life and personal liberty).
Understanding
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Explain the lex specialis relationship between IHL and IHRL during armed conflict. Answer guidance: Both apply simultaneously, but for conduct-of-hostilities questions (e.g., lawful killing of combatants) IHL, being more specific to war, controls over the general IHRL standard on arbitrary deprivation of life.
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Why does Common Article 3 matter for a country like India, which is not party to the 1977 Additional Protocols? Answer guidance: It is the only universally binding IHL floor applicable to non-international armed conflicts, guaranteeing humane treatment even where fuller protocol protections don't apply.
Application
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A state government declares certain districts a "disturbed area" under AFSPA. A soldier shoots and kills a person suspected of being an insurgent, without an arrest attempt. What legal questions would you examine to assess accountability? Answer guidance: Whether force used was the "minimum necessary" per Naga People's Movement guidelines; whether the do's-and-don'ts were followed; whether Section 6 sanction was properly considered (not a rubber stamp) per EEVFA; whether the death is open to independent investigation.
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During a proclaimed national Emergency, can the government pass a law that criminally punishes conduct that was legal when committed? Explain using Article 20 and Article 359. Answer guidance: No — Article 20's protection against ex-post-facto laws cannot be suspended even during Emergency after the 44th Amendment, so such a law would remain unenforceable regardless of Article 359.
Analysis
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Compare how IHL and India's domestic AFSPA framework each try to limit the use of lethal force. Which offers stronger protection to a civilian bystander, and why? Answer guidance: IHL relies on distinction/proportionality/necessity, binding even non-state actors; AFSPA relies on "minimum force" as interpreted judicially plus sanction/accountability mechanisms. Since India's internal conflicts aren't governed by full IHL, judicial interpretation of AFSPA (Naga People's Movement, EEVFA) functionally does the protective work IHL would do in an international armed conflict — arguably weaker because enforcement depends on sanction and investigation rather than direct treaty obligation.
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Critically evaluate whether classifying India's Northeast insurgencies as "internal disturbances" rather than "non-international armed conflicts" changes the legal protections available to affected civilians. Answer guidance: A strong answer would note that formally, both classifications point toward similar minimum protections (Common Article 3-equivalent humane treatment), but "internal disturbance" framing keeps the matter fully within domestic law (AFSPA, UAPA, Constitution) without triggering any IHL monitoring or international scrutiny (e.g., ICRC access), which can reduce external accountability even if domestic constitutional remedies remain technically available.
FAQ
1. Does India recognize the jurisdiction of the International Criminal Court (ICC) for war crimes committed during its internal conflicts? No. India has not ratified the Rome Statute of the ICC, so it does not accept the ICC's jurisdiction. Accountability for alleged violations during internal conflict is pursued through Indian courts, the Army's own courts martial, and human rights commissions.
2. Is AFSPA still in force today? Yes, in parts of the Northeastern states (with periodic reductions in coverage as security situations improve) and it was in force in Jammu & Kashmir until it was replaced there by other central legislation following the 2019 reorganisation. Its geographic application changes periodically through government notifications.
3. What is the difference between "derogation" and a right being "abrogated" (permanently removed)? Derogation is temporary and tied to an emergency — the right remains part of the Constitution and is restored once the Emergency ends or the derogating order is lifted. Abrogation would mean permanently removing the right, which requires a constitutional amendment, not merely an Article 359 order.
4. Why does the case Naga People's Movement for Human Rights v. Union of India matter so much for this topic? It is the leading Supreme Court judgment testing AFSPA against fundamental rights. Rather than striking the law down, the Court preserved it but built in judicial safeguards — minimum force, sanction scrutiny — that continue to shape how AFSPA is applied and challenged today.
5. Can international humanitarian law be enforced by Indian courts directly? Not automatically. India follows a dualist approach — international treaties don't become enforceable domestic law until Parliament legislates them in. The Geneva Conventions Act, 1960, is the domestic statute that gives the Geneva Conventions legal effect within India.
Quick Revision
- IHL = law of war (Geneva Conventions); IHRL = rights law applicable always, including in war.
- Lex specialis: IHL controls over IHRL for conduct-of-hostilities questions during armed conflict.
- Four Geneva Conventions (1949): wounded on land, wounded/shipwrecked at sea, POWs, civilians. India ratified all four; has not ratified the 1977 Additional Protocols.
- Common Article 3 sets the minimum humane-treatment floor for non-international armed conflicts (like insurgencies).
- Article 352: proclamation of Emergency. Article 359: suspension of enforcement of certain rights during Emergency.
- After the 44th Amendment (1978), Articles 20 and 21 can never be suspended under Article 359.
- AFSPA (1958): gives armed forces special powers (arrest without warrant, use of force, search) in declared "disturbed areas."
- Section 6 of AFSPA requires central government sanction before prosecution of armed forces personnel — but this is not blanket immunity.
- Naga People's Movement for Human Rights v. Union of India (1998): upheld AFSPA's validity but mandated "minimum force" and real scrutiny of sanction requests.
- EEVFA v. Union of India (2016): held AFSPA does not bar investigation into alleged fake encounters/excessive force by armed forces.
- India is not a party to the Rome Statute — no ICC jurisdiction over alleged war crimes in Indian territory.
- Distinction, proportionality, and necessity are the three core operational principles of IHL governing use of force.
Related Topics
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