Armed Forces Special Powers Act

The most controversial law in recent times in India has been Armed Forces Special Powers Act.
Originally design to facilitate the armed forces in dealing with the law and order situation and internal
disturbances. Section 6 of the law provides the armed forces with immunity for excesses which it may
eventually commit to put down a severe disturbance in an area created by ultras or anti-social and antinational elements, which may have been causing the normal functioning of daily life impossible.
Passed by the Parliament of India on 11th Sept. 1958, the act is, in many ways, reminiscence of the preindependent era of British Raj, when the security forces were armed with such draconian laws against in
own citizens.

Some allegations of Human Rights violation associated with AFSPA:

Operation Blue Bird (Oinam, Bishunpur District, Manipur): Operation Blue Bird was launched in 11 th
July 1987 at Oinam of Manipur, where more than 30 Naga villages covered and human rights violations
including torture and even extrajudicial killings were done in addition to sexual harassment, theft and
loot by security personals.
Kunan Poshpora (Kupwara District, J&K): On 23 rd February 1991, a search operation was conducted
by Indian army in Kunan Poshpora village of Kupwara district. During this search operation, around 100
women including pregnant women were allegedly raped by army persons in front of villagers.
Manorama Killing (Imphal Distrcit, Manipur): It was the night of 10 th July 2004, when Assam Rifles
went to house of Manorama at Imphal, Manipur at night, tortured her at her house before her brother and
mother, then picked her up. In the morning, dead body was found at Ngariyan Yairipok road with bullets
injuries in her private parts.
Shopian Case (Shopian district, J&K): on 29 th May 2009 in Shopian (J&K), two women named Aasia
(age approx 17) and Neelofar (age approx 22) went missing from their orchard on their way back to
home. Their dead bodies found on next day morning. People alleged it as murder and rape by security
forces who were camped nearby.
Mass Graves in J&K: In the year 2008-09, mass graves of approximate 3000 unmarked persons were
found in Bandipora, Baramulla, Kupwara and other districts. It was believed that most of these graves
may belong to people who has been killed and buried by security personals without any accountability
under AFSPA. It was also believed that there may be persons who are reported as disappeared', as
thousands of cases of disappearances are recorded. State Human Rights Commission confirmed that
thousands of bullet ridden bodies buried in unmarked graves.
Machil Encounter (Kupwara district, J&K) : On 30 th April 2010, three civilians of Baramulla (J&K)
were shot by Indian army at Machil sector in Kupwara district of J&K and were framed as foreign
militants'. However, later with the protest and inquiry, it was established that these persons were
civilians and were called by army to provide them jobs of porters and later were killed in a staged
encounter.

It is a law with just six sections granting special powers to the Indian Armed Forces in what the act terms
as "disturbed areas".

One needs to consider the difference that, AFSPA is invoked in case of internal disturbance, such as
incase of J&K or certain parts of the North Eastern states of the country. But it is completely different
from Emergency as has been defined under the article 352 to 360 of the constitution and 356 to be more
precise, especially in reference to internal emergency.
The Act has received criticism from several sections for alleged concerns about human rights violations in
the regions of its enforcement. Several demonstrations and other forms of protests have been organised
against the allegedly draconian law, the most prominent of which is the fast unto death by Irom Sharmila
Chanu of Manipur.
The alleged violation of civil rights in contravention to both Article 14 and 21 has quite often than not
been labeled against the armed forces. On a few occasions the allegations have been so severe that either
the Government had to form a commission or the Supreme Court had to intervene. On two such occasions
two separate committees were formed, 1) MHA constituted a committee under Justice (Retd.) Juven B. P.
Reddy to look into the alleged violation of Human Rights, 2) Supreme Court constituted a committee
under Justice (Retd.) Santosh Hegde to look into encounter deaths in Manipur. Let us discuss the findings
of these committees one by one.
Juven BP Reddy Committee
Back in 2006, Justice Juven B. P. Reddy Committee was constituted to look into the allegations of
Human rights violation under the Armed Forces Special Powers Act, 1958. The committee
unambiguously recommended repealing of the act put in place in parts of the country including North
East and Jammu & Kashmir.
In its 147 page report submitted to the Home Ministry, the committee noted - "The Act is too sketchy, too
bald and quite inadequate in several particulars".
The report added that the impression gathered by the Committee during the course of its work is that "the
Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of
discrimination and high-handedness." Acknowledging that the Supreme Court had upheld the
constitutional validity of the Act, the Committee said that judgment "is not an endorsement of the
desirability or advisability of the Act."
On this point, the Jeevan Reddy Committee's findings are clear: "It is highly desirable and advisable to
repeal the Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming
majority of the [North-East] region that the Army should remain (though the Act should go)."

Recommendations of the Committee in brief:

The committee unambiguously recommended repealing of the Act from all parts of the country.
It opined that the the act, inspite of being validated by the SC, is undesirable in nature.
Although the act should be repealed but the army should be in place to handle the situation.
Replacement of AFSPA with Unlawful Activities Prevention Act as amended in 2004.

Santosh Hegde Commission

Back in 2013, the Supreme Court of India constituted this commission under the chairmanship of Justice
(Retd.) Santosh Hegde along with two other members (former CEC J. M. Lyngdoh was another
prominent member of the commission).

Out of the six cases under probe by the commission, it was found that none of the persons killed had any
criminal records. The Commission tried its part to make the working of The Act as humane as possible
by making the armed forces more accountable.
The Commission noted that AFSPA was an impediment to achieving peace in regions such as Jammu and
Kashmir and the North East. The commission also said the law needs to be reviewed every six months to
see whether its implementation is actually necessary in states where it is being enforced.
As for section 6 of the Act, the commission observed that, it was not the objective of the framers of the
law to provided immunity to the offenders and henceforth proceedings can be initiated against them but
only after getting sanctions from the Union Government.

The findings of the Committee in brief:

The committee found AFSPA to be an impediment to finding peace in regions it is implemented

for longer duration.
It also noted that the objective of Sec. 6 of the act providing immunity to the Security Forces
was not absolute as the personnel offending, may be prosecuted with prior sanction of the
Government.

Struggle of Irom Sharmila Chanu

Often dubbed as The Iron Lady of Manipur, Irom Sharmila is a civil rights activist from the state of
Manipur, who has deeply imbibed the philosophy of non-violent struggle as propounded by Mahatma
Gandhi. Since 2nd of November 2000, she is on a continuous fast for 18 years running, to impress upon
the Government of India to repeal the Armed Forces Special Power Act, 1958.
However, she has been arrested several times on charges of attempt to commit suicide which is a crime
under section 309 of IPC, which also lays down a punishment of one year of simple imprisonment.
However she has never been convicted under the act and was also acquitted of her charges by a Court in
August 9th 2014, where she, in her defence had said, My struggle is my message. I love my life very
much and want to have the freedom to meet people and struggle for issues close to my heart.
It is to be noted that, the World Medical Association, in deferring with the interpretation of the
Government in India has declined to term the fast by Irom Sharmila as equivalent to attempt to commit
suicide and has also put forward the argument that those who fast "generally hope and intend to survive".
This argument has also been supported by the Amnesty International.
The struggle of Irom Sharmila has been acclaimed both nationally and internationally and she has been
awarded with Gwangju Prize for Human Rights, the first Mayillama Award of the Mayilamma
Foundation "for achievement of her nonviolent struggle in Manipur", a lifetime achievement award from
the Asian Human Rights Commission, Rabindranath Tagore Peace Prize of the Indian Institute of
Planning and Management, and the Sarva Gunah Sampannah "Award for Peace and Harmony" from the
Signature Training Centre. Amnesty International has called her a Prisoner of Conscience.
Arguments put in favour of AFSPA:
There is no dearth of arguments in favour of AFSPA, we will be discussing some of these arguments
here:-

The armed forces are employed as the last resort by the state when faced with critical national
security situations. If protective as well as operational instruments are not provided to them, the
possibility of their failure will be a national disaster and could have far-reaching repercussions.
Security forces are deployed in a region to bring the situation under control. It is neither their
choice to move into an area on their own accord nor their choice to leave without orders.
Security forces need basic powers to fire at a terrorist, search a suspected hideout, arrest a
terrorist and destroy a hideout to follow its mandate. Without these, such operations against
terrorists cannot be carried out.
The army cannot fight without basic powers to carry out its mandate. It needs operational
flexibility and freedom to achieve its mandate.
The army and the government have in-house mechanisms to deal with human rights violations,
and swift and just action is taken against the guilty.
The army has prepared its own list of dos and donts to ensure that the conduct of soldiers
remains within the guidelines for operations.
Most accusations of human rights violations against the army have been proved to be false, and
these are instigated and inspired by sympathisers of terrorists.
The nature of challenge in J&K is characterised as a proxy war and not merely an insurgency.
Therefore, since the security forces are practically facing an external adversary rather than an
internal one, there is a need for an appropriate legal mechanism to deal with it.
Partial lifting of the AFSPA from the state of Jammu & Kashmir is not possible as military
establishments are located in areas like Srinagar and Jammu and need provisions of the act to
ensure an effective security and intelligence grid.
The movement of convoys cannot be limited to districts under the AFSPA, given the present
alignment of major road axes in all the affected the regions.
There is a distinct possibility of districts where the AFSPA is lifted becoming safe havens for
terrorists. These can then be used whenever pressure increases in areas where the army is
deployed.

Possible solution that can be adopted:

Based on the ground rules, with protection and operational freedom as the key guarantors of the AFSPA,
a comparative analysis with the UAPA as amended in 2008, which is considered the most comprehensive
antiterrorism law in the country, can be done. However, since the UAPA is not specifically tailored to the
immediate requirements of the operational deployment of the armed forces in areas like J&K and North
Eastern States, additional recommendations of the Jeevan Reddy Committee for inclusion in the UAPA as
amended in 2004 will be included to enable a holistic appraisal.
There have been recommendations for the revocation of the AFSPA by other groups as well. Some of
these include the Veerappa Moily Second Administrative Reforms Committee Report 2007, the Hamid
Ansari Working Group 2007, and the UN Human Rights Committee 1997.
One of the critical demands of AFSPA supporters is the inescapable requirement for the protection of the
personnel of the armed forces during their operational tasks. This concern is adequately addressed
through Section 49 of the UAPA, which states:
No suit, prosecution or other legal proceedings shall lie against any serving or retired member of the
armed forces or para-military forces in respect of any action taken or purported to be taken by him in
good faith, in the course of any ..
The AFSPA as applicable to J&K and/or North Eastern States also provides protection against
prosecution unless sanction is obtained from the Central Government. However, the UAPA goes a step
further and endorses protection for retired personnel as well.

It is evident from this fact that the operational flexibility of the armed forces will not be compromised
under UAPA but at the same time they shall also be stripped from powers, expressly provided in AFSPA,
as any step deemed necessary, which may even add up to causing death.
Given the situation one do feel satisfied in conjunction with the Juven B.P. Reddy committee
recommendations to suggest replacement of AFSPA with UAPA.
However, it is noteworthy that, of late, the Government of Tripura has withdrawn the AFSPA, which was
in effect in some parts of the state for last 18 years.