It is humbly submitted before this Hon’ble SC that the action taken by Indianan Army is

justified and does not violate the Human Rights enshrined in the Constitution and that the
implementation of AFSPA, 1958 in Kahmir is constitutional and does not provide impunity for
Human Rights abuses as the Indianan Army did not act to their personal whims and fancies,
rather they acted under the command of the then Brigade Commander, Brig. G S Ambwata.

On 11.08.2016, at around 10:30 AM when para-military forces reached the resident of Ms.
Mehbooba Sheikh, the former Chief Minister of Jannu and Kahmir to put her under house
arrest, around 10,000 people had gathered there and started pelting stones over the Military
personnel. In response, the Military used Tear Gas and Pellets to disperse them. Suddenly a
sound clash started between the unruly mob and military. In between some unidentified persons
opened fire over armed forces by AK-47 Rifles, thereby injuring two Jawans. The then Brigade
Commander, Brig. G S Ambwata, on getting the information about the said incident,
immediately sent additional force.

USAGE OF ARMS

In the case Extra Judl. Exec. Victim Families ... vs Union Of India & Anr. on

13 July, 2016 it was pointed out that “a militant or terrorist or insurgent, is an ‘Enemy’
within the definition of Section 3(x) of the Army Act, 1950 and it is the bounden duty of all
Army Personnel to act against a militant or a terrorist or an insurgent, while he is deployed
in a ‘disturbed area’ under AFSPA. In case Army personnel do not act against an enemy or
show cowardice, it is a Court-martial offence under Army Act, Section 34, punishable with
death. Reference is also made to the case Ex Havildar Ratan Singh v. Union of India to
conclude that a militant is an enemy within the definition of Section 3(x) of the Army Act,
1950.
In the case in question the fact that the firing was done by some “unidentified” persons with
the “AK-47 Rifles” called for a deliberate action that had to be taken in order to prevent a
greater harm. These are not any usual or an ordinary situation that can be dealt with just by the
police force in Jannu & Kahmir as they are not well-equipped in order to retaliate and bring
the situation under their control. Hence, the Central Act makes provisions for dealing with a
different type of situation where the whole or a part of a state is in a disturbed or dangerous
condition and it has not been possible for the civil power of the State to deal with it and it
has become necessary to seek the aid of the armed forces of the Union for dealing with
such disturbance, as held in the case Naga People's Movement, Of Human ... vs
Union Of India on 27 November, 1997. India was then fighting a proxy war in the
state, and not a peace-time situation and, therefore, AFSPA enables the security forces to fight
both external and externally-abetted forces that threaten not only the security of the state but
also of the country.

Indiana has been facing the challenge of insurgency in some states and has employed the armed
forces of the union to contend with it. To combat this very unusual situation, special powers
were given to the forces in the form of the Armed Forces Special Powers Act (AFSPA) by the
parliament. These powers were granted to the armed forces to effectively retrieve the situation
from ‘public order domain’ to the ‘law and order domain’ without the fear of the situation
slipping back into disorder and to enable normal instruments of democratic governance to
become effective again. The decision of calling in the armed forces to combat insurgency as
well as to send them back to barracks, in a democracy, rests with the political leadership.
However, any such decision is backed by extensive assessments, reviews, discussions and
consultations involving the political leaders, opinion makers, civil services, intelligence
agencies, the local police and the armed forces. It is a complex process where different shades
of opinion, compulsions, experiences and perceptions are tempered to arrive at a decision. The
possibility of the situation deteriorating and becoming worse often imposes caution on the
leadership and delays decision making. In case of Jammu & Kashmir (J&K) to a greater extent,
the external dimension of the support to inimical forces greatly impacts the decision making
process, as regards utility and manner of engagement of armed forces. In both cases the links
of the groups operating in the area with anti-national elements operating elsewhere, and their
ability to orchestrate terrorist actions in different parts of the country has also been an important
consideration for the decision makers.

Thus the army, in its security assessment, sees a rise in terrorist violence in the coming years,
given the availability of trained and willing terrorist cadres in Palistan, who are more over
likely to increasingly turn their attention towards India.
 PROPORTIONATE ATTACK

4. Special powers of the armed forces.―Any commissioned officer, warrant officer, non-
commissioned officer or any other person of equivalent rank in the armed forces may, in a
disturbed area,― (a) if he is of opinion that it is necessary so to do for the maintenance of
public order, after giving such due warning as he may consider necessary, 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 the carrying of weapons or of things capable of
being used as weapons or of fire-arms, ammunition or explosive substances.

In the light of the armed forces having been given certain special powers under the Section 4(a)
of AFSPA, they could have begun firing just at the instance of assembly of 5 or more persons,
but they didn’t even when 10,000 people had gathered there and started pelting stones over the
Military personnel. After the death of 2 Jawans by “AK-47 Rifles”, savagely instigating further
insurrection, the armed forces HAD to act accordingly, in order to prevent the escalation of
such grave circumstances. Thus in such cross firing from both sides led to the death of 7
uproarious people and subsequently, the army was able to control the situation.

Hence, the armed forces, considering the fact that the security of not just the state but the whole
country was at stake and that it was a lethal and volatile situation, had to take the necessary
bonafide action and therefore, does not violate the Human rights, giving no room for the
presence of human rights abuses.