Issues against AFSPA and Demand for Repeal

5. AFSPA an Alleged “Failure". As per certain sections of the society, The AFSPA has neither solved the insurgency in the North East nor terrorism in J & K .Besides it is is disliked by the local public and hence warrants a review. In fact, as per critics of the act, the decision to review the act after public agitation speaks of Indian democratic strength, however failure to take this ahead indicates lack of political will. A test of a law is its effectiveness. The AFSPA has failed to deliver and is discriminatory . Its review is hence essential as a democratic country cannot have a law that defends guilty persons with impunity.1

6. Various HR organizations have also repeatedly highlighted many shortcomings of AFSPA Certain important aspects against the act are enumerated in succeeding paragraphs.2

7. Indian Laws and Rights of Citizens.. Several court cases challenging the constitutionality of AFSPA are pending before the Supreme Court. The following provisions of the Indian laws are alleged to be impinged by this act:-

(a) Violation of Right to Life. Article 21 of the Constitution guarantees the right to life to citizens of our country. This right has allegedly violated by Section 4 of this act.

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(b) Violation of Right of Equality Before Law. Article 14 of the Constitution ensures equality before law. People residing in areas declared as disturbed have been denied this right because of Section 6 of AFSPA which prevent the citizens from filing a suit against any personal of armed forces without prior sanction of Central Government.

(c) Violation of Protection Against Arrest . As per Section 22 of our Constitution, any person arrested is to be informed regarding the causes for the arrest and produced before a magistrate within 24 hours . The AFSPA violates these provisions as the armed forces allegedly detain the accused without officially declaring the arrest leading to HR violations.

(e) The AFSPA Violates Indian Criminal Procedure Code (CrPC).

(i) Use of Minimum Force . The Criminal Procedure Code lays out the procedures that police is to follow for carrying out arrests and searches . CrPC also advocates use of minimum force for dispersing an unlawful assembly. No such provisions exists in any sections of Armed Forces Special Powers Act.

(ii) Obsolute Powers to All Ranks less Sepoy. An executive magistrate or police officer not below the rank of a sub inspector is authorised to disperse any unlawful assembly. In Armed Forces Special Powers Act, all members of the armed forces less a sepoy have been vested with such powers.

(iii) CrPC does not advocate force to the extent of causing death unless they are accused of an offence punishable by death. The same rule does not pertain to Armed Forces Special Powers Act.

(f) Limited Remedy to the Alleged Victim. Section 6 of AFSPA violates Section 32(1) of the constitution that provides the right to move the Supreme Court in case of any violation of basic fundamental rights .Under AFSPA, prior sanction is to obtained from Centre Government before a case can be filed in court.

(g) Absolute Powers Without State of Emergency. AFSPA grants likes of emergency powers to the armed forces without declaring a state of emergency un the country which is considered contrary to the constitution.

8. In Contradiction To International Laws. HR organisations including United Nations Human Rights Commission have stated that AFSPA violates the various provisions of United Nations Universal Declaration on Human Rights and other International Laws. They include violation of the rights to free and equal dignity, non discrimination based on creed or religion, right to life, security and equality before law etc. Certain important facets of AFSPA which allegedly violate International Laws are given under:-

(a) International Covenant on Civil and Political Rights (ICCPR). Following the ICCPR some of the rights of citizens e.g. right to life, protection against torture etc continue to be non derogable even during state of emergencies. It is alleged that AFSPA outrightly violates both these derogable and non derogable rights. ICCPR also guarantees that a person who is arrested has the right to be aware of the reason for his arrest. This provision has also been violated by the AFSPA as there is no obligation towards informing the person of reasons for arrest.

(b) International Customary Law. The AFSPA ,as per UN violates the UN Code of Conduct for Law Enforcing Officials in terms of use of minimum force to the extent of causing death in addition to similar provisions present in most international laws.

9. Views of UN on AFSPA. The UN has also criticised India for continuing with laws including AFSPA which it believes breaches international human rights standards .The United Nations has asked New Delhi to repeal the AFSPA besides raising the issue of alleged disappearance of people in Kashmir. In 2009, the UN Commissioner for Human Rights Navnetham has stated that India should repeal the out dated and colonial-era laws including. These range from laws which provide the SF with excessive emergency powers, including the AFSPA. In 1997, the UN Human Rights Committee stated that by imposing AFSPA, the government is in fact using emergency powers without following the procedures laid down in the International Covenant of Civil and Political Rights. Again in 2007, the Committee on the Elimination of Racial Discrimination unequivocally urged the government of India to repeal the Act within one year.3

13. A Law that's Past its Use-by Date. If the armed forces are required to be used within the country to deal with insurgencies and other serious internal disturbances, it is reasonable to expect that they should have the right to use force. Hewever, the requirements of democracy and even military discipline make it imperative that the right be exercised at all times and places in a lawful and reasonable manner. Regardless of what specific statutes may authorise, the use of force in both international and municipal law is considered reasonable only when it satisfies the twin tests of necessity and proportionality. It goes without saying that rules governing the use of force are meaningful only when there is some mechanism to ensure compliance. International law is often criticised for the absence of such a mechanism, especially when it comes to disciplining powerful states. But there is no excuse for civilised societies failing to take action when the laws that define what kind of violence is permissible are wilfully violated. The Armed Forces (Special Powers) Act, 1958, which grants soldiers far-reaching powers to arrest and kill, has impunity scripted into it and needs to be reviewed.

14. Prevailing Environment in The Country against AFSPA. A number of rallies, protests, conferences and seminars have been held all over India for discussing the inhuman nature of AFSPA . Student bodies have organized similar protests in every nook and corner of India which led to “do something syndrome" thereby forcing the govt of India to form the C Upendra Commission to investigate the alleged rape case in Manipur and another AFSPA Review Committee under the chairmanship of Jeevan Reddy (Retd Judge of SC). Many human rights groups operating in India as well as many international organizations like Amnesty International, Asian human rights commission and UN human rights committee have also expressed the genuine desire for repealing the said act or to erase the inhuman clauses which are present.4

15. Jeevan Reddy Commission. Demand for repeal or review of Armed Forces Special Powers Act has been made since long. Various political leaders also have made promises from time to time to review the act. However, no concrete steps were taken in this direction till visit of the Prime Minister to Manipur in November 2004. During this visit the Prime Minister promised to consider the demand of various organisations on the subject. Accordingly a commission was set up by the Central Government on 19 November 2004 to recommend necessary changes in the existing act or to replace the act with a more humane act. The commission was headed by Mr BP Jeevan Reddy, former judge of the Supreme Court with four other members. The commission submitted its report to the Central Government in August 2005. The government is yet to take any decisions on the recommendations made by the commission. Some of the important aspects of the recommendations of the commission are as follows5:-

(a) Armed Forces Special Powers Act should be repealed. However army should remain functional as at present.

(b) Unlawful Activities (Prevention) Act, 1967 as amended in 2004 should be made the only law to deal with all types of internal security problems including insurgency and terrorism.

(c) A chapter should be added to facilitate the employment of armed forces in the existing Unlawful Activities (Prevention) Act, 1967 as amended in 2004. The draft chapter was included in report of the commission compatible to democratic principles.6

Aspects in Favour of AFSPA

14. However ,all aspects of AFSPA need to be studied in detail to arrive at a logical conclusion. The emerging internal security situation, security threats and the concerns of the SF also need to be factored at the operational levels. The issues favouring AFSPA are mentioned in the succeeding paras.

15. AFSPA not Violating Constitution. The various provisions of the AFSPA emanate firmly from within the spirit of the constitution and vision of our founding fathers. Section 3 of the AFSPA clearly lays down that when the conditions in a state are disturbed and dangerous for National Security, then the armed forces are to be used to prevent “activities involving terrorist acts directed towards overawing the government as by law established or striking terror in the people or alienating any section of the people or adversely affecting harmony amongst different sections of the people." The promulgation of AFSPA is carried out in such threat like circumstances. It is only when the ordinary citizen gets “overawed" that the government decides to promulgate the act in the disturbed area. The verb     “striking terror" and “affecting the harmony" needs to be understood in the correct perspective. Should the state permit ordinary citizen to be terrorised and harmony in the country be compromised in the face of blatant misuse of human rights by terrorists and insurgents? Isn’t it the duty of the State to maintain harmony amongst the citizens of the state? These are a few questions which the detractors of AFSPA need to answer.

16. Growth of Arbitary Powers a Rhetoric. The rhetoric that AFSPA  grants arbitrary powers to the armed forces to shoot at sight, arrest people as they desire, conduct searches without evidence and demolish structures is totally baseless with an aim to malign the SF. It is pertinent to analyse the rhetoric indulged by the human rights organisations against the Indian Army in the right perspective as given under:-

(a) Firstly, certain accusations pertain to the mishandling of situation arising out of assembly of a group of people and consequent violence. The AFSPA in no way prohibits peaceful assembly of people. It is the blatant misuse of such assembly to foment trouble and overawe the state that needs to be addressed. Such gatherings are aimed to manipulate public sentiments by anti-national/social elements to carry out subversive activities.

(b) Secondly the cases pertaining to the so- called human rights violations — young male members of a house disappearing in Jammu & Kashmir, Assamese civilians getting caught in army cross-fire, electric shocks being used as a common torture tool in Punjab, student protestors shot dead by the security forces in the Garo Hills in Meghalaya, civilians abused in the name of counter-insurgency in the border villages of Arunachal Pradesh and other cases need to be seen in the correct perspective. AFSPA Para 4(b) lays down that a competent officer “if he is of opinion that it is necessary to do so, may destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence". The contingency quoted in the clause pertaining to the misuse of civil structure for waging war against the state is in no way a warrant for wanton destruction which the human right groups allege against the army. Disappearance of citizens is viewed very seriously and strictest possible disciplinary action against the defaulter is taken swiftly by the Army.

(c) As regards the provision of arrest and search powers given under the Act, as per the basic tenets of the Constitution, the arrested persons are handed over to the civil police within a stipulated time-frame. The presence of civil police including women police at all times is also mandatory during operations.

(d) The authority to search without a search warrant has a connotation that has to be understood in the correct perspective. The anti-national elements make use of civilian assets to wage war and create unstable conditions. The need to prevent them from succeeding in their designs requires that the infrastructure support these elements enjoy must be addressed to in a cogent manner. Besides waiting for arrest warrants will delay the launch of swift operations and loose exploitation of fleeting opportunities.7

17. Protection of Soldiers for Actions is in Good Faith and Not For Blanket Immunity. The soldiers and officers of the army have 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 Centre’s sanction, if their actions warrant it. There is, therefore, no blanket immunity from the laws of the land. Over the years, some army personnel have indeed been prosecuted where a prima facie case existed. However, it is also true that due to the exceptional care which all army commanders take when their troops are employed against insurgents, such cases are few and far between.

18. Legal Authority For Army is Mandatory to Fight Terrorism. 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. It is for this reason that the Act gives the basic four powers to army personnel. These are for ‘enter and search’, ‘arrest without warrant’, ‘destroy arms dumps or other fortifications’ and ‘fire or use force after due warning where possible’. Once again, there is a safeguard in the Act, which stipulates that the arrested person(s) will be handed over speedily to the nearest police station.8

19. Disturbed Area Declaration By Political Authority Overrides AFSPA. The law stipulates that AFSPA can be imposed only after the area in question is declared a ‘disturbed area’ by the state government concerned. Clearly, the Army has no desire to get embroiled in counter-insurgency tasks. However, despite over 50 years of insurgency in our country, the state police as well as the central police forces (CPOs) have not been made capable of tackling insurgency. Consequently, in each case the army has been 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. Even then, the political leadership retains the power to invoke or withdraw AFSPA and not the Army.9

20. AFSPA a Necessity for National Security and Not Alone The Army. It is often simplistically argued that the security forces need the Act. This is actually quite misleading since the State alone can under a constitutional statute declare an area as “disturbed" and decide upon the “deployment" of the central paramilitary or the armed forces. It is invariably seen that the following circumstances drive the employment of the security forces:-

(a) Administrative failures have time and again contributed to insurgencies in the past. Once they have erupted, the local functionaries and the police forces have proved inadequate in coping with them. As a result, the states are simply forced to turn to central paramilitary forces or the army for protection of life and property.

(b) Having undertaken concerted counterinsurgency operations over time, the affected states have simply failed to make capital out of the “peace dividend" delivered by the security forces. This has often resulted in their extended presence with no signs at all of return to normalcy.

(c) Consequentially, the security forces have a right to seek legal provisions to undertake operations for three fundamental reasons. One, a soldier unlike a policeman is not empowered by the law to use force. Next, while operating in far flung areas, it is simply not possible to requisition the support of magistrates every now and then. Lastly, their employment is an instrument of `last resort` when all other options have been exhausted.

(d) There is no gainsaying the fact that political necessity drives deployment of the security forces for internal security duties. The forces are aware that they cannot afford to fail when called upon to safeguard the country’s integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilisation of combat capability. This includes safeguards from legal harassment and empowerment of its officers to decide on employment of the minimum force that they consider essential.10

22. Risks of Dilution of AFSPA Even the mere dilution of the Act could have serious repercussions at the operational level it would result in loss of morale and reluctance amongst the security forces to undertake operations fearing litigation, thereby leading to a slow tempo of operations. A frail legal standing would embolden the insurgent/terrorist organizations and their over ground workers (OGWs) to level frivolous allegations resulting in the military leadership appearing more often in courts rather than in leading counter-terrorist operations. The judiciary too is likely to be targeted by the insurgents/terrorists to make them pliant thereby posing an additional security burden. Also, over a period of time judicial standards and rectitude could deteriorate leading to a loss of faith in the system. In the absence of legal provisions, the state and the soldier would be vulnerable, and in turn fail to provide the security, development and governance needed to prevent the insurgency.11

24. Analysis of AFSPA. An in depth analysis of Armed Forces Special Powers Act brings out that the views of various HR organisations and certain sections of the society on AFSPA being illegal and unconstitutional are biased and misinterpreted. Reasons and justifications of the same are given below:-

(a) Legality of the AFSPA. AFSPA was enacted by the Parliament in 1958 as per the procedures and powers vested on the Parliament by the Indian Constitution. Therefore this act is absolutely legal. Its legality has also been upheld by the Honourable Supreme Court in it’s verdict in the case of Naga Peoples Movement of Human Rights versus Union of India on 27 November 97.

(b) Misinterpretation of Special Powers. The use of term “Special Power" in the name of AFSPA is often misunderstood and misinterpreted. There are actually no arbitrary powers vested to the armed forces through this act. Most provisions of section 4 are already vested with the police even in normal circumstances. Police does also arrest a person without warrant when the person is accused of committing a cognisable offence, particularly under UAPA which is covered in the later part of this paper.

(d) Dominance of Civil Authority. Even in an disturbed area, the civil authority is supreme and continues to function. This act does not displace civil power of the state by the armed forces3. The public continue to enjoy all rights and privileges guaranteed to them by the constitution without any hindrance subject to certain security limitations to facilitate conduct of operations by SF.

(e) No Violations of Constitutional Rights. “The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the act, are not arbitrary , unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the constitution4" as per ruling of the Supreme Court of India. It needs to be understood that armed forces are only called upon to deal with the internal security problems when all other instruments of the civil power including fail in executing their tasks. AFSPA does not empower armed forces to shoot anywhere and anytime. Firing is resorted to for ensuring safety of the citizens or in self defense.

(f) Minimum Use of Force. Armed forces are directed to use minimum possible force required for necessary action against persons acting in contravention to the laid down prohibitive laws. This aspect is reflected in the directions of the Supreme Court on the subject and the Army Doctrine on Sub Conventional Warfare.

(g) Handing Over of Detainee to Police . Any person arrested by the armed forces are handed over to the nearest police station with least delay to be produced before a magistrate within 24 hours of his arrest, minus the time required for journey from the place of arrest to the court . The armed forces also lodge an FIR with the police giving the circumstances under which the person was arrested. A medical certificate by a Government Doctor is also deposited with the police. This procedure negates any misuse or discrepancy on the subject including alleged useof force for the period of detention under .

(h) Transparency in Search and Seizures. All actions of search and seizure are carried out with due deliberation. The representatives of the police and villagers are involved while conducting any cordon and search operations. A “No claim" and “No damage" certificate is also obtained by the armed forces after conduct of such operations from the village head or the representative of the civil administration. If there is any unintended damage, suitable compensation is also provided by the government. In case of any violation of HR by the armed forces, the same is investigated and disciplinary actionis taken against the defaulters.

(j) Do’s and Don’ts. A list of Do’s and Don’ts and Ten Commandments have has been issued by the Army Headquarters which are to be followed in letter and spirit while operating in insurgency. The guidelines have statutory status and violation of the rules are liable to be tried by law.

(k) Constitutional Remedy. It is alleged that all citizens residing in the disturbed area have no constitutional remedy as guaranteed by Section 32 of our constitution. This is not true. The only safeguard provided to the armed forces in AFSPA is that the sanction of the Central Government is required to file a suit against a person who has committed a crime including violation of human rights. If the crime has actually been committed, the Central Government cannot deny sanction as it has to give reasons for its decisions. It must not be forgotten that wherever Armed Forces Special Powers Act has been enacted, the area has been affected by the separatist forces. The safeguard to the armed forces as provided in the section 6 of Armed Forces Special Powers Act is necessary to prevent vindictive approach towards the security forces by the separatist forces.

(l) Immunity and Not Impunity to Armed Forces. It is misunderstood or misinterpreted that the members of the armed forces acting under Armed Forces Special Powers Act are provided absolute immunity for all their actions. This is not true. They are provided immunity only for the actions which have been carried out in good faith while performing their duties. No crime can be committed in good faith hence, this act does not provide any protection against any crime or to the criminal. Any actions outside the law are crimes and are dealt with as per provisions of the laws.

25. The analysis of the facts suggests that there is not much of truth in the facts as are tried to be brought out by various human rights organisations. This act as a legal provision is in no way responsible for human rights violations. It is the misinterpretation and misunderstanding of the act which make some people and organisation to believe that this act is illegal and is responsible for all human rights violations in low intensity conflict environment. In actuality much more human rights are violated by the police forces in terms of torture, unlawful detention, custodial deaths etc. The demands to repeal the Armed Forces Special Powers Act on the grounds of the act being illegal do not stand to any logic. However, there are certain lacunae in the AFSPA as mentioned earlier which need to be addressed.

26. Recent Steps by Government of India. The demand for repeal of the AFSPA has been made by many quarters, including Chief Minister of Jammu and Kashmir Omar Abdullah. Notwithstanding opposition from the Army and faced with reports of fake encounters, the government may go ahead with certain amendments in the Armed Forces Special Powers Act which includes handing over of Army personnel in case of extra-judicial killings to the state authorities. The second Administrative Reforms Committee had suggested to the government replacing of the Act with an amended law which gives the centre the right to deploy the Army or para-military forces in situations involving national security.

12. While of late, Army has been raising issues and even terming AFSPA as a ‘holy book’, government sources feel that there was a need to give a fresh look to the act and make it more humane. A draft note has been circulated to the law and defence ministries for their comments as the UPA government continues to strive had to fulfil the assurance made by Prime Minister Manmohan Singh in carrying out a thorough review of the AFSPA and making it more humane. Once a view is firmed up, the amendments would be listed before the Cabinet Committee on Security.

1. B P Jeevan Reddy commission report on review of Armed Forces Special Power Act,

2. B P Jeevan Reddy commission report on review of Armed Forces Special Power Act.

3. Supreme Court of India, on its verdict on the case filed by Naga Peoples Movement of Human Rights versus Union of India on 27 November 1997, Paragraph 3 and 5.

4. Verdict, Supreme Court Naga Peoples case..

5. In Defence of Human Rights Practiced by Indian Army, Rajiv Rewari, CLASWS, New Delhi..

6. AFSPA : A Soldiers Perspective by Harinder Singh, IDSA, New Delhi.

7. ibid, para 9.

8. ibid, para 11.

9. UN Asks India to repeal AFSPA, 23 Mar 2009, newsoutlookindia.com.

10. AFSPA 1958 and Jeeven Reddy Committee by Puyan RakeshMeati.

11. Editorial, The Hindu, 09 Sep 2010.

12. AFSAP : Is a Review Necessary, CLAWS, New Delhi.

13. Special Powers for Armed Forces : We need Clarity, not emotion by Lt Gen Vijay Oberai, CLAWS, New Delhyi.