Professional Documents
Culture Documents
SUBMITTED BY:
SPARSH YADAV
LEGAL FACULTY
SECTION B
DECLARATION
I, SPARSH YADAV, student of B.A.LLB (Hons.) Ist Semester hereby declare that the
project work submitted is my own work and has been carried under the supervision of Mr.
Shashank Shekhar, faculty member of renowned law university Dr. Ram Manaohar Lohia
National Law University. This work has been not submitted to any other university.
ACKNOWLEDGMENT
I would like to express my gratitude towards all those whose help and constant
support the project would not have reached its current facet. I would take advantage of this
situation to thank my parents and my guardians without whose constant support and
guidance, I really owe it a lot to them.
However, foremost I would like to thank Mr. Shashank Shekhar, my legal faculty for his kind
guidance and for quenching my queries on many doubts and technicalities which I came up
during the making of this project; this project would not have seen the light of the day
without his constant direction and guidance.
I would also like to thank all of my friends and seniors who aided me along the way. I must
also extend my gratitude to the library and library personnel who provided me with research
material and good books to work upon.
List of abbreviations
AFSPA------------------------------------------------------------Armed Forces Special Power Act
BSF------------------------------------------------------------------------------Border Security Force
J&K-------------------------------------------------------------------------------Jammu and Kashmir
ICCPR------------------------------------International Covenant on Civil and Political Rights
IHL----------------------------------------------------------------International Humanitarian Law
IPC-----------------------------------------------------------------------------------Indian Penal Code
CrPC-----------------------------------------------------------------------Criminal Procedure Code
CRPF-------------------------------------------------------------------Central Reserve Police Force
CPC-------------------------------------------------------------------------Criminal Procedure Code
CPF-------------------------------------------------------------------------------Central Police Forces
TABLE OF CONTENTS
TOPICS
PAGE NUMBER
INTRODUCTION----------------------------------------------------------------------------------------------4
NEED FOR ARMED FORCES SPECIIAL POWER
ACT---------------------------------5
OBJECTIVES OF ARMED FORCES SPECIIAL POWER
ACT-----------------------7
PROVISIONS OF ARMED FORCES SPECIIAL POWER
ACT----------------------9
CRITICAL
ANALYSIS-----------------------------------------------------------------------------------11
CONCLUSION-------------------------------------------------------------------------------------------------14
BIBLIOGRAPHY-------------------------------------------------------------------------------------------16
INTRODUCTION
The Armed Forces Special Powers Act (AFSPA) has been in force in the Northeast
since 1958 and in Jammu and Kashmir (J&K) since 1990. It has been in the news lately
because of the debate in the public domain and the ministry of home affairs over the need to
refine it. The application of the Act in J&K has also figured in the headlines. The military has
tendered its position to the government against any dilution of the Act. The cabinet committee
on security has taken the armys reservations on board. There is no clarity over its current
status. The state government intends to revoke the disturbed areas status of parts of the state
that have largely returned to normalcy. This is part of the political outreach under the centres
eight point plan to address the stone throwing incidents of the summer of 2010. The armys
position on this initiative weighs-in on the side of prudence and caution.
The Act has acquired centrality in any discussion on Indias counter insurgency and
anti-terrorism strategy. It has been pilloried as draconian by some and defended as
unwarrantedly demonised by others and been assailed on a number of fronts. These include
its implications for centre-state relations, its impact on the fundamental rights of citizens, the
tacit political message sent to areas singled out for such laws, such as the Northeast and J&K,
as being different from the rest of India, the possible empowering of the military to an
extent of skewing the civil military balance, the strategic costs of the Act in terms of losing
hearts and minds etc.
Given this interest and controversy surrounding the AFSPA, its correspondence with
domestic law, in terms of protection of human rights, and with international humanitarian law
(IHL) and human rights law, assumes significance. Two approaches can be taken to examine
the consonance of the Act with international law can be done through two approaches. One is
legal i.e. that is by studying the provisions and powers that accrue thereby; and the other is a
study of its effects. The former is the domain of constitutional and legal experts and the latter
is more amenable to dissection by professionals and security analysts. This paper takes the
former route. Given Indias obligations under international human rights instruments going
beyond domestic law is necessary in any such discussion.
In doing so, it reaffirms that respect for human rights and humanitarian law in
countering insurgency is of strategic import. In conclusion, it recommends some measures for
the military for maintaining complementarities.
4
employ the police before committing the army, operations against insurgents are entirely of a
different genre, as the insurgents do not give any time for such niceties. The insurgents we are
fighting today are heavily armed; they act speedily, commit heinous crimes and disappear.
Unless the army counters such actions with speed and not wait for orders from higher civil or
military authorities, nothing would be achieved.
Secondly, the soldiers and officers of the army had to be protected from prosecution
for consequential action taken against insurgents in good faith as part of their operations.
Here too, the Act does contain the important caveat that the army personnel can be prosecuted
with the Centres sanction, if their actions warrant it. There is, therefore, no blanket immunity
from the laws of the land. When insurgency erupted in Srinagar in 1990, the Act was
extended to the Valley. Later, as the activities of the insurgents spread, first to the PoonchRajauri area, then to Doda and Bhadarwah and finally to the whole state, the entire state was
brought under the Acts purview in stages. It can thus be seen that AFSPA was invoked
progressively only when the situation required the deployment of the army.
The army is designed and structured for fighting external enemies of the nation.
Consequently, they are not given any police powers. However, when the nation wants the
army to conduct counter-insurgency and counter-terrorist operations, then they must be given
the legal authority to conduct their operations without the impediment of getting clearances
from the higher authorities. If this is not done, they would be unable to function efficiently
and defeat the insurgents and terrorists at their own game.
Clearly, the Army has no desire to get embroiled in counter-insurgency tasks. It is not
the armys job. However, despite over 50 years of insurgency in our country, the state police
as well as the central police forces (CPFs) have not been made capable of tackling
insurgency. Consequently, in each case the army was inducted to carry out counter
insurgency/ terrorist operations. If the national leadership tasks the army for conducting such
non-military operations, then it is incumbent on the leadership to provide the legal
wherewithal to all army personnel employed on such tasks.
It is only then that the operations will be conducted in the usual efficient manner of
the army and would be result-oriented. They also must be legally protected. It is because
these two aspects have been catered for that the army has been neutralizing the insurgents and
terrorists, so that normalcy is restored and the political leaders and officials can restart
governing.
6
There have been certain incidences where human rights were violated by the army,
but for this we cannot blame the law that is designed for operational effectiveness for grave
security conditions.
The Articles in the Constitution of India empower state governments to declare a state
of emergency due to one or more of the following reasons: Failure of the administration and
the local police to tackle local issues. Return of (central) security forces leads to return of
miscreants/erosion of the "peace dividend". The scale of unrest or instability in the state is too
large for local forces to handle. In such cases, it is the prerogative of the state government to
call for central help. In most cases, for example during elections, when the local police may
be stretched too thin to simultaneously handle day-to-day tasks, the central government
obliges by sending in the BSF and the CRPF. Such cases do not come under the purview of
AFSPA. AFSPA is confined to be enacted only when a state, or part of it, is declared a
'disturbed area'. Continued unrest, like in the cases of militancy and insurgency, and
especially when borders are threatened, are situations where AFSPA is resorted to.
By Act 7 of 1972, this power to declare areas as being disturbed was extended to the
central government. In a civilian setting, soldiers have no legal tender, and are still bound to
the same command chain as they would be in a war theatre. Neither the soldiers nor their
superiors have any training in civilian law or policing procedures. This is where and why the
AFSPA comes to bear - to legitimize the presence and acts of armed forces in emergency
situations which have been deemed war-like.
According to the Armed Forces Special Powers Act (AFSPA), in an area that is
proclaimed as "disturbed", an officer of the armed forces has powers to:
(1) After giving such due warning, Fire upon or use other kinds of force even if it causes
death, against the person who is acting against law or order in the disturbed area for the
maintenance of public order,
(2) Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training
camp from which armed attacks are made by the armed volunteers or armed gangs or
absconders wanted for any offence.
(3) To arrest without a warrant anyone who has committed cognizable offences or is
reasonably suspected of having done so and may use force if needed for the arrest.
(4) To enter and search any premise in order to make such arrests, or to recover any person
wrongfully restrained or any arms, ammunition or explosive substances and seize it.
(5) Stop and search any vehicle or vessel reasonably suspected to be carrying such person or
weapons.
10
(6)Any person arrested and taken into custody under this Act shall be made over to the
officer in charge of the nearest police station with the least possible delay, together with a
report of the circumstances occasioning the arrest4.
Army officers have legal immunity for their actions. There can be no prosecution, suit
or any other legal proceeding against anyone acting under that law. Nor is the government's
judgment on why an area is found to be disturbed subject to judicial review. Protection of
persons acting in good faith under this Act from prosecution, suit or other legal proceedings,
except with the sanction of the Central Government, in exercise of the powers conferred by
this Act.
On close perusal of the various powers available to the police under the provisions of
the CrPC vis--vis those available to the armed forces under AFSPA would reveal that the
police still enjoys more encompassing and wider powers relating to arrest, search, seizure,
summoning of witnesses, preventive detention etc. than the armed forces.
Adequate checks and safeguards are built in AFSPA to prevent the armed forces from
assuming sweeping powers. Violations of its provisions are liable for legal action/
prosecution. The dos and donts issued by the Army, duly approved by the Supreme Court,
are binding on all ranks. What needs to be clearly understood is that while internal security is
not the Armys job, whenever a state government requests for its deployment owing to the
police not being able to handle the situation and even when the AFSPA is promulgated, the
governance of the state yet remains in the hands of civil administration and not taken over by
the armed forces, as is wrongly perceived by many. From the bare reading of the act, it
appears that the security forces enjoy vast powers, yet, the power to investigate offences
remains reserved with the police alone.
CRITICAL ANALYSIS
To a layman, AFSPA indeed sounds like awarding the Right to Kill to our armed
forces. But it is the contents of the act that are flawed and misty. Firstly, it makes no
distinction between a peaceful gathering of five or more people and a berserk mob. So, even
innocents who have no role in creating a situation that results in that region being called
disturbed, also come under the purview of the law. Secondly, the law also states that, no
4http://www.peacekashmir.org/views-articles/2013/0618-provisions-of-armedforces-special-powers-act-afspa.htm on 23rd September, 2015.
11
prosecution can be initiated against an officer without the previous sanction of the Central
government. Purportedly, the logic behind the inclusion of this section is, to protect the
officers from frivolous and misguided allegations. The government is usually not very fluid
in giving this much needed sanction, in order to express their faith in the armed forces and
protect their interests.
Thirdly, the decision of the government to declare a particular area disturbed cannot
be challenged in a court of law. This has been the heart of the problem. As the recent situation
in Kashmir seems to go out of hand, leaders have now suggested that the act must be repealed
from certain provinces citing the reason that the imminent threat, due to which AFSPA was
enforced in that province in the first place, has been neutralized over the years. Certainly, the
reasoning is specious it is nothing more than a tactic to appease the population and pacify
their agitated sentiments. If the threat has indeed been neutralized, then why not declare the
region as not disturbed, which will by itself conclude the role of the army?
section of the AFSPA prohibits even state governments from initiating legal proceedings
against the armed forces on behalf of their population without central government approval.
Since such a sanction is seldom granted, it has in effect provided a shield of immunity for
armed forces personnel implicated in serious abuses.
In practice the AFSPA also facilitates violation of the right to be free from torture, and
from cruel or degrading treatment. Since the AFSPA provides powers to arrest without
warrant and then detain arrested persons for unspecified amounts of time, the armed forces
routinely engage in torture and other ill-treatment during interrogation in army barracks.
13
The Indian government claims that the soldiers responsible for human rights
violations have to face military courts. Under the Army Act, the military may transfer a
soldier from civilian to military custody for offenses that can be tried by a court martial. India
should not allow the future to be dominated by violent paradigm such as the continuing use of
AFSPA. It is time India gives space for Democracy and its cherished values to remerge
instead of suppressing the genuine democratic voice of We the people which continues to
remain excluded under the tyrannous rule5.
CONCLUSION
India is a signatory to the International Covenant on Civil and Political
Rights[ICCPR]. In Article 3of ICCPR the state parties undertake to ensure the equal right of
men and women to the enjoyment of all civil and political rights set forth in the present
Covenant. But in times of public emergency which threatens the life of the nation, they
may take measures derogating from their obligations under the present Covenant to the
extent strictly required by the exigencies of the situation. However, the right to life and the
norms regarding the prohibition of torture, slavery and servitude are non-derogable.
A state availing itself of the right of derogation is required to immediately inform
the other State Parties through the intermediary of the UN Secretary General about the
provisions from which it has derogated and of the reasons by which it was actuated. The
ICCPR assumes that such measures are exceptional and temporary. Governments therefore
are required to communicate the date when such derogation is terminated (United Nations,
1966). The Human Rights Committee recommended that AFSPA and its use be closely
monitored so as to ensure its strict compliance with the provisions of the Covenant (United
Nations 1997).
Unquestionably, there have been killings and human rights violation, in both Kashmir
and the North-East, as a direct result of AFSPA. But the opinions are mixed. The Joint Chiefs
have repeatedly reasserted that even partial revocation of AFSPA will greatly curtail the
freedom of the army, to carry out operations. According to them, a soldier deserves all the
legal protection he can get, for the result of any action/decision he takes on the spot, acting in
the best interests of the situation. While the politicos, as said earlier, are bent upon diluting
AFSPA and scoring some political brownie points.
5 Journal of Social Welfare and Human Rights March 2014, Vol. 2, No. 1, pp. 265279
14
More than 80 civilian deaths have been reported in Kashmir, since June 11. While on
the other hand, the North-East has been the victim of this state of play for the past 56 years.
Instances of mass killings of people and custody deaths, like that of Th. Manorama, have
been catalyzing the protests. Irom Sharmila has been fasting, for over a decade, demanding
the annulment of AFSPA from Manipur and other parts of the North-East. But evidently her
pleas seem to land on deaf ears. A police investigation in 2011 by the Jammu and Kashmir
State Human Rights Commission (SHRC) found 2,730 bodies dumped into unmarked graves
at 38 sites in north Kashmir. At least 574 were identified as the bodies of local Kashmiris..
The AFSPA is a symbol of abuse, oppression, and discrimination. Its application and
misuse has fuelled a cycle of atrocity and impunity and inflamed passions for militancy in
various parts of the country. The growth of militant groups under the 50- year application of
the AFSPA is evidence that countering armed insurgency with disregard for human rights is
ineffective. Human Rights Watch is not alone in calling for repeal of the AFSPA. Human
rights groups in India have called for repeal for decades. Other Indian voices calling for
repeal have included the:
B.P. Jeevan Reddy Committee (2005);Administrative Reforms Committee headed by
Veerappan Moily (2007); and Working Group on Confidence-Building Measures in Jammu
and Kashmir headed by Mohammad Hamid Ansari (2007).
In 1997, the UN Human Rights Committee expressed concern regarding the
continuing reliance on the AFSPA and at human rights violations by security personnel in
areas declared disturbed. It expressed concern about the climate of impunity and lack of
remedies resulting from the requirement of government approval for legal proceedings
against armed forces acting under special powers. The Committee recommended that this
requirement be abolished.
15
Bibliography
1) Bimol Akoijam: Another, 9/11, Another Act of Terror: The Embedded disorder of the
AFPSA.
2) End army rule, committee for the repeal of the Armed Forces Special Powers Act, Delhi.
3) An Analysis of Armed Forces special power act 1958 PUCL and Asian Centre for Human
Rights. Manipur in the shadow of AFSPA.
4) Love in the time of AFSPA. Hindu editorial.
5) Poem on Sharmilla by Kamayani Bali Maha Bal.
6) SAHELI-PUDR Fact Sheet on Human Rights abused in Northeast.
7) http://www.cprindia.org
8) Article - AFSPA MUST BE REPEALED! THE 10 YEARS HUNGER STRIKE OF IROM
SHARMILAS MUST END NOW!
9) Journal of Social Welfare and Human Rights March 2014, Vol. 2, No. 1, pp. 265-279
10) Article - Armed Forces (Special Powers) Act and Human Rights: Experiences of Women
from Nagaland.
11) Armed Forces Special Powers Act: A Study in National Security Tyranny, SAHRDC,
available at http://www.hrdc.net/sahrdc/resources/armed_forces.htm
12) The Armed Forces (Special Powers) Act, 1958
16