CONSTITUTIONAL PERSPECTIVES ON AFSPA
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Abstract
This paper is an attempt to understand the argument on question of legality and constitutionality of the Armed Forces (Special Powers) Act, 1958 which has been extensively debated for the last few decades. The question is whether the Parliamentary power to enact laws in respect to “Public order” falls within the domain of Entry 1 of the State List. On the one hand whether it falls under Entry 97 of the Union List with Article 246 and Article 248 of the Constitution and after the Constitution (44th Amendment) Act, 1978, Act falls under the realm of Entry 2A of Union List of the Constitution on the other. The second question is apart from Article 352, are special laws really necessary to deal with internal disturbances and public disorders in the country?
The Seventh Schedule of the Constitution of India lays down three kinds of List such as Union List, State List and Concurrent List. The purpose of Seventh Schedule is to limit the legislative powers of State and Parliament to enact laws on preventive detention. Under Article 246, the Parliament and Legislature of the State have its own power to make laws enumerated in the Union List and State List. Article 248 of the Constitution applies to Jammu and Kashmir, in this context; the concept of “terrorist act” under the special laws has the same meaning for the entire part of India. The parliament has an exclusive power to legislate on the areas not included in the State List and Concurrent List as residue powers of legislation lies on it.
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