You are on page 1of 16

BASICS OF LEGISLATION AND CASE LAW

Dr. RAM MANOHAR LOHIA


NATIONAL LAW UNIVERSITY

Final draft : ARMED FORCES SPECIAL


POWER ACT (AFSPA)

SUBMITTED BY:

UNDER THE GUIDANCE OF:

SPARSH YADAV

Mr. Shashank Shekhar

ROLL NO: 146

LEGAL FACULTY

SECTION B

DR. RAM MANOHAR LOHIYA

B.A. LLB (Hons.), SEMESTER I

NATIONAL LAW UNIVERSITY

BASICS OF LEGISLATION AND CASE LAW

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

BASICS OF LEGISLATION AND CASE LAW

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

BASICS OF LEGISLATION AND CASE LAW

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

BASICS OF LEGISLATION AND CASE LAW

NEED FOR ARMED FORCES SPECIAL POWER ACT


The proposed amendments were made the Armed Forces Special Powers Act
(AFSPA) to greatly reduce the effectiveness in counter-insurgency and counter-terrorism
operations. If battalion, company and platoon commanders of units engaged, who have been
fearlessly leading from the front in such operations, start becoming apprehensive about being
legally proceeded against for killing terrorists, mostly externally instigated, then we will lose
the valuable cutting edge.
In the light of one of a downslide of security and peace in Jammu and Kashmir, after
many allegations of unprovoked firing by the Central Reserve Police Force (CRPF) at highly
motivated mobs, including children, indulging in stone-pelting and attacking police posts,
chief minister Omar Abdullah, after initially condemning security forces, made some very
significant statements. In an interview published he said: The perception of the average
resident of J&K is that the AFSPA is abused while there is a sense that it is indispensable for
the security forces. The need is to address both views. Reportedly, Mr Abdullah also
categorically stated that with anti-national elements and those with vested interests exploiting
the situation in the Valley, the security forces cannot be constantly expected to show restraint
in view of all the stone-pelting.
The AFSPA, 1958 was enacted by Parliament on September 11, 1958, to provide
necessary powers and legal support/protection to the armed forces for operations against
insurgents in a highly hostile environment and it has enabled them to effectively contain
insurgency and establish stability in the region. AFSPA, 1958, is currently applicable in
Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Tirap and Changlang districts
of Arunachal Pradesh. Subsequently, Parliament enacted the Armed Forces (Jammu and
Kashmir) Special Powers Act, 1990, effective since July 5, 1990, initially to areas falling
within 20 km of the Line of Control with Rajouri, Poonch, Anantnag, Baramulla, Budgam,
Kupwara, Pulwama and Srinagar districts declared as disturbed. In August 2001, it was
extended to Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda, when these districts were
declared disturbed.
The rationale for bringing the Act on the statute book needs to be appreciated. When
the army was first employed on counter-insurgency tasks in Nagaland in the 1950s, two
aspects came to the fore immediately. First, unlike in the case of maintenance of law and
order, when the army is called out in aid to the civil authority, where time is available to
5

BASICS OF LEGISLATION AND CASE LAW

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

BASICS OF LEGISLATION AND CASE LAW

OBJECTIVES OF ARMED FORCES SPECIAL


POWER ACT
The purpose of this paper is to analyse the Armed Forces Special Powers Act
(AFSPA), 1958, specifically dealing with its implementation in the North-East of India. After
giving a general introduction explaining social conflict and the basis on which the anti-terror
law was made in India, the paper moves on to give the social backdrop of the legislation. The
legislation is then analysed on the basis of its rationale, objectives, relevant sections and
implementation. The author concludes the paper discussing if there is really a need for such a
law in India.
Social conflict has a long history. It is based on class struggle, revolutionary thoughts,
economic, political and social relations, and on resentment and aggression. Conflict arises
when people try to force their views on others through coercion. In the contemporary world,
this form of social conflict has reached new heights transforming conflicts into full-fledged
wars. India is facing diverse challenges to maintain its internal security. There is an increase
in cross-border terrorists activities and insurgent uprisings. The reasons for this increase vary
from ideological to religious, caste to geographical. To combat this, the Government has
implemented various controversial anti-terror legislations1.
Long before India achieved her Independence, the people of the North East have been
fighting for self-governance. After India gained Independence, the entire North East was
claimed by India as a part of the new republic. Though their languages and culture was
completely different, they were forced to integrate into the national mainstream. In the first
few five-year plans, they were completely neglected. This area is not well connected by trains
and though the Government exploited their natural resources, they did not get any revenue
from it2. Due to these reasons and more, secessionist movements arose in all the seven states.
To repress these movements the Armed Forces Special Powers Act was enacted on September
11, 1958, in the states of Assam and Manipur. Later, in 1972, it was extended to the
1 Refer Dictionary and Encyclopedia, Social Conflict, http://www.encyclopedia69.com/eng/d/socialconflict/social-conflict.htm
2Refer to South Asia Human Rights Documentation Center, Armed Forces Special
Powers Act: A Study in the
National Security Tyranny,
http://www.hrdc.net/sahrdc/resources/armed_forces.htm.
7

BASICS OF LEGISLATION AND CASE LAW

remaining North-eastern states of Tripura, Meghalaya, Arunachal Pradesh, Mizoram and


Nagaland. A variant of the law was also used in Punjab during a separatist movement in the
1980s and 90s, and has been in force in Jammu and Kashmir since 19903.
AFSPA was enacted to suppress the growing secession movements across North East
India. These movements started because people of those states were discontented for being
completely ignored by the government. The Government thus decided to convert the area into
a police state by imposing AFSPA. The main objective of AFSPA is to repress anti-nationalist
activities. This Act is implemented only in Government-declared disturbed areas and, hence,
the armed forces are deployed only in demarcated areas that are the strongholds of such
movements and activities
The army is an organisation that is built primarily for defence against external
aggression. Hence it is an instrument that is used entirely for a different set of activities. For
the army to be involved in internal disturbances requires a great degree of doctrinal, tactical,
operational and strategic changes. The Indian army has been swift in evolving and equipping
itself for any new form of warfare, but for it to be effective it requires a special set of powers
that must be constitutionally allotted to them. This is why the Armed Forces Special Powers
Act (AFSPA) is given to the armed forces so that they can conduct operations without any
hindrance.
As far as AFSPA is concerned it is a legitimate and an indispensable element of
counter terrorist/counter insurgency operations. In the disturbed areas if the army is to
function the constitution must give them special powers for operational efficiency and
effective because the army cannot work under the Indian Penal Code (IPC) or Criminal
Procedure Code (CrPC) simply because it is not a police organization. The AFSPA gives
them the authority that includes the basic policing powers such as to arrest or to search.
Section 4, that gives the right to shoot to kill and destroy property that is directly contributing
to the insurgency and unrest may seem draconian leading to human rights violations, but it is
also a necessary component that explains the operational philosophy of the army. There were
instances where many brave souls of the army laid down their lives for deciding not to shoot
first. Therefore not giving section 4 of the AFSPA would be a strategic and an operational
blunder. This is precisely why AFSPA is required.
3 Human Rights Watch, India: Repeal Armed Forces Special Powers Act,
http://www.hrw.org/en/news/2008/08/17/india-repeal-armed-forces-specialpowers-act
8

BASICS OF LEGISLATION AND CASE LAW

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.

PROVISIONS OF THE ACT


The essence of the important sections of AFSPA is:
(a) Section 3 empowers the Central and state governments to declare areas as disturbed.
(b) Section 4 gives the Army powers to search premises and make arrests without warrants, to
use force even to the extent of causing death, destroy arms/ammunition dumps,
fortifications/shelters/hideouts and to stop, search and seize any vehicles.
(c) Section 6 stipulates that arrested persons and seized property is to be made over to the
police with least possible delay.
(d) Section 7 offers protection of personnel acting in good faith in their official capacity.
Following Naga Peoples Movement of Human Rights v Union of India, decided on
November 27, 1997, the Supreme Court extended the scope of powers vested vide 4 and 6 of
AFSPA, to include by implication, the power to interrogate the person arrested and for the
armed forces to retain the weapons seized during the operations in their own custody rather
than to hand them over to police authorities.
The Armed Forces (Special Powers) Act (AFSPA) grants special powers to the armed
forces in "disturbed areas" in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as The Armed
Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990 due to the rising
insurgency in the area. The act gives legal immunity to the armed forces, when they
undertake measures to quell violent protests in a disturbed region. An officer is entitled to
fire upon or otherwise use force, even to the causing of death, against any person who is
acting in contravention of any law or order for the time being in force in the disturbed area,
prohibiting the assembly of five or more persons or carrying of weapons or of things capable
of being used as weapons or of fire-arms, ammunition or explosive substances. It is entirely
on the Centre and the state governments to decide whether an area should be declared as
disturbed or not.

BASICS OF LEGISLATION AND CASE LAW

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

BASICS OF LEGISLATION AND CASE LAW

(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

BASICS OF LEGISLATION AND CASE LAW

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?

AFSPA in North East India and Mockery Human Right


The powers that the AFSPA extends to the armed forces come into force once an area
subject to the Act has been declared disturbed by the central or state government. This
declaration is not subject to judicial review.
The right to life is violated by section 4(a) of the AFSPA, which grants the armed
forces power to shoot to kill in law enforcement situations without regard to international
human rights law restrictions on the use of lethal force. Lethal force is broadly permitted
under the AFSPA if the target is part of an assembly of five or more persons, holding
weapons, or carrying things capable of being used as weapons. The terms assembly and
weapon are not defined.
The right to liberty and security of person is violated by section 4(c) of the AFSPA,
which fails to protect against arbitrary arrest by allowing soldiers to arrest anyone merely on
suspicion that a cognizable offence has already taken place or is likely to take place in the
future. Further, the AFSPA provides no specific time limit for handing arrested persons to the
nearest police station. Section 5 of the AFSPA vaguely advises that those arrested be
transferred to police custody with the least possible delay.
The right to remedy is violated by section 6 of the AFSPA, which provides officers
who abuse their powers under the AFSPA with immunity from legal accountability. This
12

BASICS OF LEGISLATION AND CASE LAW

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.

The AFSPA and Impunity


Impunity occurs when perpetrators of human rights violations are not held
accountable by the state for their actions. Impunity can be divided into two types. De facto
impunity takes place when the state fails to prosecute for lack of capacity or will, often for
political reasons, such as state support for the abuses or to protect high ranking officials or
state institutions. De facto impunity has been rampant in India, where in even welldocumented abuse cases there is no political will to prosecute. The second kind of impunity is
de jure impunity, in which laws or regulations providing immunity or amnesty make it
difficult or impossible to prosecute a perpetrator for human rights abuses. India has several
such provisions in its laws, aimed at shielding its military personnel and civilian officials
from legal accountability.
Such laws are contrary to the right to a remedy and reparation for gross violations of
international human rights law. Both forms of impunity lead to more human rights violations
and undermine faith in the government and security forces; de jure impunity sends a
particularly negative signal to victims about state indifference to and complicity in their
suffering.
Among the worst immunity provisions provided under Indian law is the one that
protects those operating under the AFSPA. It is often used to prevent civilian prosecutors
from prosecuting soldiers. AFSPA requires prior approval of the central government for
civilian prosecutions of military personnel. That approval is seldom forthcoming. This has
occurred, for instance, in the Manorama case in Manipur and in several well-known cases in
Jammu and Kashmir.

13

BASICS OF LEGISLATION AND CASE LAW

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

BASICS OF LEGISLATION AND CASE LAW

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

BASICS OF LEGISLATION AND CASE LAW

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