AFSPA: A MILITARY OVER REACH AND THREAT TO

NATURAL JUSTICE OR NATIONAL SECURITY

REQUIREMENT?

I. NATURAL JUSTICE

In English law, natural justice is technical terminology for the 'rule against bias' and the 'right
to a fair hearing'. While the term natural justice is often retained as a general concept, it has
largely been replaced and extended by the general "duty to act fairly".

In The Constitution of India, nowhere the expression Natural Justice is used. However,
golden thread of natural justice sagaciously passed through the body of Indian constitution.
Preamble of the constitution includes the words, ‘Justice Social, Economic and political’
liberty of thought, belief, worship... And equality of status and of opportunity, which not only
ensures  fairness in social and economical activities of the people but also acts as shield to
individuals liberty against the arbitrary action which is the base for principles of Natural
Justice.
Apart from preamble Art 14 ensures equality before law and equal protection of law to the
citizen of India. Art 14 which strike at the root of arbitrariness and Art 21 guarantees right to
life and liberty which is the fundamental provision to protect liberty and ensure life with
dignity. Art 22 guarantees natural justice and provision of fair hearing to the arrested person.
Directive principles of state Policy specially Art 39-A takes care of social, economic, and
politically backward sections of people and to accomplish this object i.e. this part ensure free
legal aid to indigent or disabled persons, and Art 311 of the constitution ensures
constitutional protection to civil servants. Furthermore Art 32, 226, and 136 provides
constitutional remedies in cases violation of any of the fundamental rights including
principles of natural justice. With this brief introduction author undertakes to analyze some of
the important provision containing some elements of Principle of Natural Justice.

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II. AFSPA

A) Introduction & Application

The Armed Forces (Special Powers) Act-(AFSPA) was passed on September 11, 1958 to help
the army in tackling the disturbed areas of the Northeast India. AFSPA was implemented in
the Kashmir amid increase in the insurgency in 1990. Presently, AFSPA is operational in
entire States of Assam, Nagaland, Manipur (except Imphal Municipal area), three districts
namely Tirap, Changlang and Longding of Arunachal Pradesh and the areas falling within the
jurisdiction of the 8 police stations in the districts of Arunachal Pradesh, bordering the State
of Assam. In simple terms, AFSPA is a law which gives immense powers to armed forces to
maintain the rule of law in the “disturbed areas”.
Under this law the armed forces have the authority to prohibit gathering of five or more
persons in an area. In some cases the forces can open fire on the disturbing factors after
giving due warning if found any suspicious person.
When differences in the communities arise on the basis of race, religion, language, region and
caste and anarchic situation arises then the state or central government is entitled to declare
that area as "Disturbed Area".
AFSPA is levied only in those areas which have been declared as disturbed areas. Army and
armed forces are sent in the area only after the implementation of this law. As per the Section
(3) of the AFSPA, it is mandatory to seek the opinion of the state government that whether an
area is disturbed or not. If an area is declared as the disturbed area, it will be under the control
of Special Forces for at least 3 months.

B) Powers of AFSPA
1. Any suspect can be arrested without a warrant.
2. Armed forces can search any house without any warrant and required force can be used to
search it.
3. Under this law the armed forces have the authority to prohibit gathering of five or more
persons in an area.
4. In some cases the forces can open fire on the disturbing factors after giving due warning if
they found any suspicious person.
5. If a person is repeated offender and tries to disturb the peace of the area, then armed forces
are entitled to use force till his death.

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6. If the Armed Forces suspect that any militant or offender is hiding in any house/building
then the site or structure can be destroyed by the forces.
7. Any Vehicle can be stopped and searched.
8. Even in the case of wrongful action by the armed forces, legal action is not taken against
them.

III. ANALYSIS OF THE ACT: MILITARY OVERREACH & THREAT

TO NATURAL JUSTICE

The Armed Forces Special Powers Act contravenes both Indian and International law
standards. This was exemplified when India presented its second periodic report to the United
Nations Human Rights Committee in 1991. Members of the UNHRC asked numerous
questions about the validity of the AFSPA, questioning how the AFSPA could be deemed
constitutional under Indian law and how it could be justified in light of Article 4 of the
ICCPR.

The Attorney General of India relied on the sole argument that the AFSPA is a necessary
measure to prevent the secession of the North Eastern states. He said that a response to this
agitation for secession in the North East had to be done on a “war footing.”

He argued that the Indian Constitution, in Article 355, made it the duty of the Central
Government to protect the states from internal disturbance and that there is no duty under
international law to allow secession.
This reasoning exemplifies the vicious cycle which has been instituted in the North East due
to the AFSPA. The use of the AFSPA pushes the demand for more autonomy, giving the
peoples of the North East more reason to want to secede from a state which enacts such
powers and the agitation which ensues continues to justify the use of the AFSPA from the
point of view of the Indian Government.

A) Human Rights Perspective

It should be noted that many limitations of the law were removed by the legal sanctity
according to the ‘Dos’ and ‘Don’ts’ by the Supreme Court in the Naga People’s Movement
case mentioned above. These include adherence to procedures for arrest; handing over the

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accused to the police within 24 hours; as well as the upholding of the immunity clause. Ali
Ahmed, in his paper, emphasizes that the “provisions of Common Article 3, as incorporated
to domestic law” should be implemented in the Indian context, “including suppression of
grave breaches.”

Dos
1. Action before Operation

(a) Act only in the area declared ‘Disturbed Area’ under Section 3 of the Act.

(b) Power to open fire using force or arrest is to be exercised under this Act only by an
officer/JCO/WO and NCO.

(c) Before launching any raid/search, definite information about the activity to be obtained
from the local civil authorities.

(d) As far as possible coop representative of local civil administration during the raid.

2. Action during Operation

(a) In case of necessity of opening fire and using any force against the suspect or any person
acting in contravention of law and order, ascertain first that it is essential for maintenance of
public order. Open fire only after due warning.

(b) Arrest only those who have committed cognizable offense or who are about to Commit
cognizable offense or against whom a reasonable ground exists to prove that they have
committed or are about to commit a cognizable offense.

(c) Ensure that troops under command do not harass innocent people, destroy the property of
the public or unnecessarily enter into the house/dwelling of people not connected with any
unlawful activities.

(d) Ensure that women are not searched/ arrested without the presence of female police. In
fact, women should be searched by female police only.

3. Action after Operation

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(a) After arrest prepare a list of the persons so arrested.

(b) Hand over the arrested persons to the nearest police station with the least possible delay.

(c) While handing over to the police a report should accompany detailed circumstances
occasioning the arrest.

(d) Every delay in handing over the suspects to the police must be justified and should be
reasonable depending upon the place, time of arrest and the terrain in which such person has
been arrested. The least possible delay may be 2-3 hours extendable to 24 hours or so
depending upon a particular case.

(e) After raid makes out a list of all arms, ammunition or any other incriminating
material/document taken into possession.

(f) All such arms, ammunition, stores etc. should be handed over to the police station along
with the seizure memo.

(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police.

(h) Make a record of the area where the operation is launched having the date and time and
the persons participating in such raid.

(i) Make a record of the commander and other officers/JCOs/ NCOs forming part of such
force.

(k) Ensure medical relief to any person injured during the encounter, if any person dies in the
encounter his dead body be handed over immediately to the police along with the details
leading to such death.

4. Dealing with Civil Court

(a) Directions of the High Court/Supreme Court should be promptly attended to.

(b) Whenever summoned by the courts, the decorum of the court must be maintained and
proper respect paid.

(c) Answer questions of the court politely and with dignity.

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(d) Maintain a detailed record of the entire operation correctly and explicitly.

Don’ts

1. Do not keep a person under custody for any period longer than the bare necessity for
handing over to the nearest police station.

2. Do not use any force after having arrested a person except when he is trying to escape.

3. Do not use third-degree methods to extract information or to an extract confession or other

involvement in unlawful activities.

4. After the arrest of a person by the member of the armed forces, he shall not be interrogated
by the member of the armed force.

5. Do not release the person directly after apprehending on your own. If any person is to be
released, he must be released through civil authorities.

6. Do not tamper with official records.

7. The armed forces shall not take back a person after he is handed over to civil police.

List of Dos and Don’ts while Providing Aid to Civil Authority

Dos

1. Act in closest possible communication with civil authorities throughout.

2. Maintain inter-communication if possible by telephone/radio.

3. Get the permission/requisition from the Magistrate when present.

4. Use little force and do as little injury to person and property as may be consistent with
attainment of an objective in view.

5. In case you decide to open fire:

(a) Give a warning in the local language that fire will be effective;

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(b) Attract attention before firing by bugle or other means;

(c) Distribute your men in fire units with specified Commanders;

(d) Control fire by issuing personal orders;

(e) Note number of rounds fired;

(f) Aim at the front of the crowd actually rioting or inciting to riot or at conspicuous
ringleaders, i.e., do not fire into the thick of the crowd at the back;

(g) Aim low and shoot for effect;

(h) Keep Light Machine Gun and Medium Gun in reserve;

(i) Cease firing immediately once the object has been attained;

(j) Take immediate steps to secure wounded.

6. Maintain cordial relations with civilian authorities and paramilitary forces.

7. Ensure a high standard of discipline.

Don’ts

1. Do not use excessive force.

2. Do not get involved in a hand-to-hand struggle with the mob.

3. Do not ill-treat anyone, in particular, women and children.

4. No harassment of civilians.

5. No torture.

6. No communal bias while dealing with civilians.

7. No meddling in civilian administration affairs.

8. No Military disgrace by loss/surrender of weapons.

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9. Do not accept presents, donations, and rewards.

B) Violation of Fundamental Right

Violation of Article 21 – Right to life

Article 21 of the Indian Constitution guarantees the right to life for all people. It reads, “No
person shall be deprived of his life or personal liberty except according to procedure
established by law.”

The judicial interpretation that “procedure established by law means a “fair, just and
reasonable law” has been part of Indian jurisprudence since the 1978 case of Maneka
Gandhi.1 This decision overrules the 1950 Gopalan case2 which had found that any law
enacted by Parliament met the requirement of “procedure established by law”.
Under Section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to
kill, the constitutional right to life is violated. This law is not fair, just or reasonable because
it allows the armed forces to use an excessive amount of force.
The offenses under Section 4(a) are: “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 fire-arms,
ammunition or explosive substances”.

None of these offenses necessarily involve the use of force. The armed forces are thus
allowed to retaliate with powers which are grossly out of proportion with the offense.
Justice requires that the use of force be justified by a need for self-defence and a minimum
level of proportionality. As pointed out by the UN Human Rights Commission, since
“assembly” is not defined, it could well be a lawful assembly, such as a family gathering, and
since “weapon” is not defined it could include a stone. These shows how wide the
interpretation of the offenses may be, illustrating that the use of force is disproportionate and
irrational.

1
Maneka Gandhi vs Union Of India 1978 AIR 597, 1978 SCR (2) 621

2
A.K. Gopalan vs The State Of Madras 1950 AIR 27, 1950 SCR 88

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In the Indrajit Barua vs The State Of Assam And Anr case 3, the Delhi High Court found that
the state has the duty to assure the protection of rights under Article 21 to the largest number
of people. Couched in the rhetoric of the need to protect the “greater good”, it is clear that the
Court did not feel that Article 21 is a fundamental right for the people of Assam. The Court
stated, “If to save a hundred lives one life is put in peril or if a law ensures and protects the
greater social interest then such law will be a wholesome and beneficial law although it may
infringe the liberty of some individuals.”

This directly contradicts Article 14 of the Indian Constitution which guarantees equality
before the law. This article guarantees that “the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.”

The AFSPA is in place in limited parts of India. Since the people residing in areas declared
“disturbed” are denied the protection of the right to life, denied the protections of the
Criminal Procedure Code and prohibited from seeking judicial redress, they are also denied
equality before the law. Residents of non-disturbed areas enjoy the protections guaranteed
under the Constitution, whereas the residents of the Northeast live under virtual army rule.
Residents of the rest of the Union of India are not obliged to sacrifice their Constitutional
rights in the name of the “greater good”.

Protection against arrest and detention – Article 22

Article 22 of the Indian Constitution states that:

(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the magistrate and no such person shall
be detained in custody beyond the said period without the authority of a magistrate.

3
Indrajit Barua vs The State Of Assam And Anr. AIR 1983 Delhi 513

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The remaining sections of the Article deal with limits on these first two sections in the case of
preventive detention laws. On its face, the AFSPA is not a preventive detention law,
therefore, the safeguards of sections (1) and (2) must be guaranteed to people arrested under
the AFSPA.

Section (2) of Article 22 was the subject of much debate during the framing of the Indian
Constitution. There was an argument over whether the time limit should be specified or
whether the words “with the least possible delay” should be used. Dr. Ambedkar, one of the
principal framers of the Indian Constitution argued that “with the least possible delay” would
actually result in the person being held for a shorter period of time, whereas “twenty- four
hours” would result in the person being held for the maximum time of twenty-four hours.

The application of these terms has since shown that a specified time period constitutes a
greater safeguard. Under the AFSPA, the use of “least possible delay” language has allowed
the security forces to hold people for days and months at a time.

In its application, the AFSPA does lead to arbitrary detention. If the AFSPA were defended
on the grounds that it is a preventive detention law, it would still violate Article 22 of the
Constitution. Preventive detention laws can allow the detention of the arrested person for up
to three months. Under 22(4) any detention longer than three months must be reviewed by an
Advisory Board. Moreover, under 22(5) the person must be told about the grounds of their
arrest.
Under Section 4(c) of the AFSPA a person can be arrested by the armed forces without a
warrant and on the mere suspicion that they are going to commit an offense. The armed
forces are not obliged to communicate the grounds for the arrest. There is also no advisory
board in place to review arrests made under the AFSPA. Since the arrest is without a warrant
it violates the preventive detention sections of Article 22.

The case of Luithukla v. Rishang Keishing,4, a habeas corpus case, the Court said that the
army may not act independently of the district administration. Repeatedly, the Guwahati High
Court has told the army to comply with the Code of Criminal Procedure (CrPC), but there are
is no enforcement of these rulings.

4
Luithukla v. Rishang Keishing, (1988) 2 GLR 159

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Army officers have accused High Court judges of weakening military powers in the North
East, exemplifying that the armed forces are not interested in complying with civil law
standards. Any attempt by the courts to oblige compliance with police procedure is ignored.

In the habeas corpus case of Bacha Bora v.State of Assam5, the petition was denied because a
later arrest by the civil police was found to be legal. However, in a discussion of the AFSPA,
the Court analyzed Section 5 (turn the arrested person over to the nearest magistrate “with
least possible delay”). The court did not use Article 22 of the Constitution to find that this
should be less than twenty-four hours but rather said that “least possible delay” is defined by
the particular circumstances of each case.

In this case, the army had provided no justification for the two-week delay, when a police
station was nearby, so section 5 was violated. Nevertheless, this leaves open the interpretation
that circumstances could justify a delay of 5 days or more.

5
Bacha Bora v.State of Assam, (1991) 2 GLR 119

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IV) NEED FOR NATIONAL SECURITY

A) Security Forces Perception

The army's views are based on ground reality and they support AFSPA.

First, India is fighting a proxy war in the state 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. The encounter on March 28, 2012, in Kupwara, in which
five Lashkar-e-Taiba (LeT) terrorists were killed, testifies to this fact.

Second, the army has its military establishments, intelligence set-up and even convoys that
pass through areas where AFSPA is not operative. Therefore, the security of both men and
material require the legal safeguards and operational powers of AFSPA.

Third, cases of hot pursuit could well take troops from areas where the law is in force to
where it may have been revoked, thus leading to legal complications, as well as allowing
terrorists to create safe havens for themselves.

Fourth, 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 Pakistan, who are
moreover likely to increasingly turn their attention towards India after the de-induction of
US-led forces in Afghanistan. Under these circumstances, the army feels that once AFSPA is
revoked, political compulsions will not allow its re-introduction even if the situation in the
state worsens.

The example of Imphal, which has seen a spurt in militant activities since the lifting of the
disturbed area status, is cited as proof. Maj Gen Umong Sethi,’s arguments are based on these
premises. Lt Gen Satish Nambiar, while highlighting the need for review in view of the
domestic perceptions, feels that “It is possible to state with some conviction that in 99
percent, possibly 99.9 percent, or maybe even 99.99 percent cases, our forces take every
precaution to ensure that there is no loss of life to innocent civilians or collateral damage to
property.”

Maj Gen Nilendra Kumar highlights the need for humanizing AFSPA. He recommends a
number of measures, within the constitutional and legal framework of existing laws to build

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in the necessary checks and balances. A number of these measures stem from the experience
of the author and his handling of the AFSPA debate within the army.

The CRPF is deployed in the hinterland in J&K, also comes within the purview of AFSPA.
While its position vis-à-vis the law has not been debated as much as that of the army, K Vijay
Kumar, DG CRPF, however, said that the: “CRPF does not have a stand on the issue, as it
will go with the stand of the home minister. Our only reservation is about the protection the
law confers upon us. As long as there is some law, we have no problem.”

The Inspector General of Police, Kashmir, in an interview to FORCE, preferred to leave the
decision to the government: “It is the government’s prerogative to take the decision. I think
AFSPA is a complicated issue. One has to appreciate that there is also a question of
perception when it comes to the Act.”

V) CRITICISM

A) Militaries Immunities/ Lack of Remedies

The members of the Armed Forces in the whole of the Indian Territory are protected from
arrest for anything done within the line of official duty by Section 45 of the CrPC. Section
6 of the AFSPA provides them with absolute immunity for all atrocities committed under the
AFSPA. A person wishing to file suit against a member of the armed forces for abuses under
the AFSPA must first seek the permission of the Central Government.

This section of the AFSPA was also reviewed in Indrajit Barua. 6 The High Court justified this
provision on the grounds that it prevents the filing of “frivolous claims”. The court even said
that this provision provides more safeguards, obviously confusing safeguards for the military
with safeguards for the victims of the military’s abuses.

Instances of human rights abuses by the army have shown that unless there is public
accountability there is no incentive for the army to change its conduct. This was exemplified
in Burundi when security forces killed 1,000 people in October 1991.

Amnesty International reported, “the failure to identify those responsible for human rights
violations and bring them to justice has meant that members of the security forces continue to

6
SUPRA NOTE 3

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believe that they are above the law and can violate human rights with impunity.” Without the
transparency of public accounting, it is impossible to be sure that perpetrators are actually
punished.

Habeas corpus cases have been the only remedy available for those arrested under the
AFSPA. A habeas corpus case forces the military or police to hand the person over to the
court. This gives the arrested person some protection and it is in these cases that legal counsel
has been able to make arguments challenging the AFSPA. However, a habeas corpus case
will not lead to the repeal of the act nor will it punish particular officers who committed the
abuses. Also, only people who have access to lawyers will be able to file such a case.

Section 6 of the AFSPA thus suspends the Constitutional right to file suit. Mr. Mahanty
raised this crucial argument in the first Lok Sabha debate on the AFSPA in 1958. He said that
Section 6 of the AFSPA “immediately takes away, abrogates, pinches and frustrates the right
to constitutional remedy which has been given in Article 32(1) of the Constitution.” This
further shows that the AFSPA is more than an emergency provision because it is only in
states of emergency that these rights can be constitutionally suspended.

Article 32(1) of the Constitution states that “the right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this Part is
guaranteed.”

Dr. B R Ambedkar said, “If I was asked to name any particular article of the Constitution as
the most important – an article without which this Constitution would be a nullity. I would
not refer to any other article except this one (Article 32). It is the very soul of the
Constitution and the very heart of it.”

The Army Act

The 1950 Act was a revision of the 1911 Indian Army Act. One of the goals of this revision
was “to bridge the gap between the Army and civil laws as far as possible in the matter of
punishments of offenses.” The High Courts of the country have a limited right to interfere
with the court-martial system. Court-martial proceedings do not have to satisfy Article 21 of
the Constitution.

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In Chapter Five of the Army Act, the members of the services are granted privileges,
including immunity from attachments and arrest for debt. The only civil acts committed by
members of the army which are not triable by court-martial are murder or rape of a civilian
unless this was done while on active service. This means that soldiers operating under the
AFSPA will, if tried at all, be tried by court-martial, leaving no civil law remedy for the
victims. Section 6 of the AFSPA only further reinforces the army’s immunity.

States of Emergency

The declaration that an area is disturbed essentially amounts to declaring a state of emergency
but by-passes the Constitutional safeguards. The point that this bill invokes a state of
emergency was raised immediately by Mr. Mahanty (Dhenkanal) in the 1958 Lok Sabha
debates. He said the Assembly could not proceed if Section 352(1) of the Constitution was
not fulfilled. In response, Mr. K C Pant, then Home Minister, attempted to argue that the
powers granted under the AFSPA do not resemble a state of emergency. He said that in an
emergency fundamental rights can be abrogated and that the AFSPA does not abrogate those
rights. But under Section 4(a) the right to life is clearly violated.

An officer shooting to kill, because he is of the opinion that it is necessary, does not conform,
even prima facie, with the Article 21 Constitutional requirement that the right to life cannot
be abridged except according to procedure established by law.

Dr. Krishnaswanmi (Chingleput) also made the argument that the AFSPA was outside the
powers granted in the Constitution since it was declaring a state of emergency without
following the Constitutional provisions for such a declaration. He argued that this Bill would
take away the State’s power by bringing in the military.

In a state of emergency, fundamental rights may be suspended under Article 359, since the
1978 amendment to this Article, rights under Articles 20 and 21 may not be suspended. As
shown above, the AFSPA results in the suspension of Article 21 right to life, therefore
AFSPA is more draconian than an emergency rule. Emergency rule can only be declared for a
specified period of time, and the President’s proclamation of emergency must be reviewed by
Parliament. The AFSPA is in place for an indefinite period of time and there is no legislative
review.

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The AFSPA grants state of emergency powers without declaring an emergency as prescribed
in the Constitution. The measures taken by the military outweigh the situation in the North
East, notably the power to shoot to kill. The offenses are not clearly defined since all of
the Section 4 offenses are judged subjectively by the military personnel. And the AFSPA is a
“special jurisdiction” provision.

VI) INCIDENTS SHOWCASING VIOLENCE: ENCOUNTERS SO FAR

1. Operation Blue Bird (Oinam, Bishunpur District, and Manipur):

2. Kunan Poshpora (Kupwara District, J&K):

3. Bijbehra firing (Anantnag district, J&K):

4. Malom (Imphal District, Manipur):

5. Pathribal (Anantnag district, J&K) :

6. Manorama Killing (Imphal District, Manipur):

7. Shopian Case (Shopian district, J&K)

8. Mass Graves in J&K:

9. Machil Encounter (Kupwara district, J&K):

VII. PUBLIC PERCEPTION

The inability of the army to communicate its point of view, despite misperceptions about the
law and the positive contribution made by the army over a period of time is found to be
lacking. There is a need for a more viable strategic communication strategy for the army in a
battle where, at times, the reality is replaced by perceptions. The 24/7 media requires a more
proactive and transparent public information environment in the army. It should be reiterated
that since laws such as AFSPA are enacted by Parliament, it is primarily the responsibility of
the government to communicate with the public over the ongoing debate on AFSPA.

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It was evident from the controversy that there are no easy answers to the challenges faced.
While limitations of AFSPA have been commented upon at length and suggestions made,
however, according to Pradip Phanjoubam, no clear alternatives are available. The Defense
Minister, A K Antony, replying to a question in Parliament, indicated that a decision will be
taken after carefully considering the opinions of the central and state governments and
security forces.

Clearly, the need for a consensus on an issue that has far-reaching ramifications is a must, lest
the law which is meant to protect the people and enable the government to take action against
terrorism, leaves the people vulnerable to violence in the wake of serious difference of
opinion amongst decision makers.

Also, there is a real danger of AFSPA becoming a symbol of oppression and hostage to
previous violations if the voices emanating from regions affected by terrorism and
insurgency, along with international opinion, are not heard and their grievances redressed.

VIII. RECOMMENDATIONS: THE WAY FORWARD

The aspect of human rights has shaped the AFSPA controversy to a large extent. It needs to
be emphasized that human rights compliance and operational effectiveness are not contrarian
requirements. In fact, adherence to human rights norms and principles strengthens the
counterinsurgency capability of a force. The Indian army has been recognized as an
apolitical, secular and professional force by the country.

Therefore, compliance with humanitarian principles will go a long way in strengthening this
faith. The suggestions that follow are in the form of policy options. These can either be
incorporated in the form of amendments to the existing law or in a new one, given the
psychological imperatives and perceptions associated with it.

1. Armed Forces Imperative

• Any force that operates in a counter-terrorism environment, and in the case of J&K,
superimposed by a proxy war, needs protection. The Criminal Procedure Code (CrPC)
provides protection under Sec 45 and 197 as does the Unlawful Activities (Prevention) Act
1967, amended in 2008 under Section 49. Therefore, any future amendment needs to cater to
the protection of the armed forces operating in a disturbed area.

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2. Accountability and Responsibility

• Protection for the armed forces must be accompanied by provisions that ensure
responsibility and accountability, within the parameters of the law. It is for this reason that
robust safeguards need to be incorporated in the existing or any new law.

Specific suggestions could include:

• Incorporation of existing Dos and Don’ts in AFSPA. These have since been formalized by
the Supreme Court. (List of certain Dos and Don’ts approved by the Supreme Court are
attached at Annexure I).

• Include a provision for the government to amend rules of engagement based on the evolving
situation.

• Create committees at the district level with representatives of army, police, civil
administration and the public to report, assess and track complaints in the area.

• All investigations should be time bound. Reasons for the delay should be communicated to
the aggrieved.

• There is a need to keep detailed records of operations, to ensure suitable proof of conduct of
forces and operational imperatives. The provision of technological capability for facilitating
the same should be considered.

• All old cases of human rights violations should be fast-tracked and judgments
communicated to the aggrieved.

3. Amendment to the Law

• The changing nature of Counter Insurgency (CI) operations must take into account the
nature of the threat and calibrate the use of force accordingly. A lower threshold cannot
justify excessive force. The army’s principle of minimum force must, therefore, remain a
fundamental guideline for conduct of operations and should be included in AFSPA.

• The lacunae in the Act, as a result of definitional voids with respect to terms like
“disturbed”, “dangerous” and “land forces” need to be amplified to ensure greater clarity The

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language and context of law become questionable, because of flawed elucidation of certain
terms. Amongst the foremost is, “fire upon or otherwise use force, even to the causing of
death.” Suitable amendments need to be incorporated to correct similar objectionable textual
and contextual anomalies in the law.

• AFSPA should be made compliant with international and national norms of human rights
and humanitarian law.

4. Armed Forces Public Interface

• Greater transparency in communicating the status of existing cases to include its display on
the army and government’s websites.

• Proactive feedback to petitioners on action taken by the government in past human rights
cases.

IX. CONCLUSION

ASFPA could not achieve its desired goals even after 60 years of its implementation. So the
state government of the disturbed area along with the central government should find out an
alternative to of this law and come out with flying colours. Critics of the AFSPA law argue
that there is no need to run the country on the basis of bullet while the matter should be
resolved on the basis of the ballet.

Be it the ending Irom Sharmila's hunger strike in Manipur or the protesters out on candle
marches against AFSPA in capital or anywhere else, AFSPA has been under severe
criticism from all quarters of the society for being a draconian law widely misused  by the
armed forces. Lately, in a landmark decision, the Supreme Court said that all the
encounters carried out by armed forces including police under AFSPA act too should be
subjected to inquiry. The decision came after hundreds of Manipur families filled a plea
that over the years more 1500 cases of fake encounters have taken place where armed
forces have murdered innocent people under the garb of AFSPA. Many human right
activists and organisations too have been demanding its removal from north-east as well
as Kashmir.

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Over the years, there have been several voices of protest. There is the 11-year-long fast of
Irom Sharmila, a Manipur activist demanding a repeal of the law, which has recently received
much media attention. In 2004, various civil society groups in Manipur launched an intense
agitation after the death of Manorama Devi, a civilian, while in the custody of the Assam
Rifles. In 2005, following her death, the then Union Home Minister visited Manipur and
instituted a commission under Justice Jeevan Reddy, which also asked for the modification or
repeal of the AFSPA. In 2011, the chief minister of Jammu and Kashmir (J&K), Omar
Abdullah, too asked for the AFSPA to be lifted from the state. In March this year, the UN and
other organisations, both nationally and internationally, have also jumped into the fray,
asking for the repeal of AFSPA in the North East and Jammu and Kashmir.

During exceptional situations of internal disturbance in India, the Indian Army is called in to
quell the potential and actual violence. In such a context, the army is given extraordinary
powers under the Armed Forces Special Powers Act. According to the Indian Constitution,
the armed forces cannot be deployed against Indian citizens unless a local government or the
central government asks the army to intervene in a situation that the government is unable to
handle. In short, the army is called in only after local police action has failed and insurgents
have gained an upper hand. The danger in such a situation is that it is possible for insurgents
to take over and make a state secede from the Union. This is obviously unacceptable in any
democracy.

The AFSPA was first enforced in the North East in 1958; due to the extreme law and order
situation, the central government classified the North East as a “disturbed area.” After 1958,
the AFSPA has been incrementally applied to cover the seven states in the North East. The
law has also been in force in large parts of Jammu and Kashmir from the 1990s.

The AFSPA grants the army “special powers” which have to be used with extreme care. The
law gives the army powers to shoot to kill, destroy property and temporarily detain suspects.
Army personnel acting under the AFSPA are immune from all actions taken under other laws
of the Indian Penal Code, the Criminal Procedure Code and civil suits, unless otherwise
sanctioned by the central government.

By any reckoning the AFSPA enables harsh powers, but tough situations require tough
measures. Critics of the AFSPA may not recognise that insurgents are now often well-trained.
Insurgent or rebel groups may be funded and armed by foreign powers with the intention of

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creating a secessionist movement within India. The trained rebels carry modern arms and
munitions which are often better than what the local police carry, and they use this fire power
to inflict huge casualties on the security forces. A case in point is the massacre, in a single
ambush, of more than 70 men of the Central Reserve Police Force by Maoist rebels in
Dantewada in the state of Chattisgarh in April 2010.

The army is called in only when secessionist violence crosses the threshold of being a law-
and-order problem that the police cannot handle. The armed forces are trained to be
aggressive, to fire for effect, to be lethal; it is this training that makes the army more
successful than the police in counter-insurgency operations.

The army’s efficiency translates into pressure on rebels, and the insurgents may force the
local population to agitate against the “draconian” AFSPA. Unlike many in the general
population, the insurgents know that revoking the AFSPA would mean withdrawing the army
– which is exactly what they want.

On its part, the army has a poor and archaic public information system. The inadequacy of the
information system comes from the army’s ostensible need for “secrecy” which requires
hierarchical sanction at various levels. The army’s explanation for what occurred after an
incident is usually defensive and too little, too late.

The human rights aspects of this law also need to be clearly understood. Civilian casualties in
areas of insurgency tend to be cited as “atrocities” committed by the army. It is important to
remember that in most counter-insurgency situations the rebel fires first, he also almost
always takes cover behind innocent bystanders, he is not in uniform and the weapon is the
only thing that differentiates him from a civilian. In such crossfire, civilians will be injured or
killed as in any war zone. The army cannot be faulted for this.

This does not mean that atrocities or human rights violations should be condoned. The
differentiator should be casualties caused in the heat of battle versus those caused in cold
blood to gain awards or recognition.  Killing to gain recognition does occur on occasion, but
when seen as a percentage of the quantum of troops deployed, the duration of their
deployment and the number of times they have been in violent situations, such casualties are
too small a number to justify revoking the AFSPA in the name of “gross misuse.”

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The army is more than fair about investigating abuses and if they err, it is usually against
their own men. In an analysis done in 2011 of human rights violations involving army
personnel, the army demonstrated that only 54 out of 1511 reported cases since 1994 were
found to be true; 129 persons have been punished by the army in these cases. The
punishments awarded by the army are severe and exemplary, including dismissal from
service and life imprisonment.

The army has become a target of criticism by default, when the real responsibility rests with
the government. Deploying troops under the AFSPA is aimed at preventing secession of
strife-torn states from the Indian Union. Keeping potentially separatist states in the Union by
deploying the army is always a political decision.

Without the army’s counter-terrorism measures under the AFSPA, India could have lost
Jammu and Kashmir in the 1990s. The government at the time had almost given up, but the
army stood firm in its constitutional duty to safeguard and retain every inch of Indian
Territory. This remains the standing order for the army to this day.

The army could work on building an informed and broad-based consensus on the dangers of
secession through a more effective public information system. In many instances, once the
insurgents get across their version first—and this has happened in Sri Lanka, J&K, the North
East, and Punjab in 1984—it becomes very difficult for the army to correct the picture
already painted and to rectify the information imbalance.

The debate then should focus not on whether to invoke, modify or dismantle the AFSPA, but
on how best to use the army in situations of internal conflict. When the army is used, the
nation needs to see the use of military power as a failure of governance. Secessionist
movements in the country signify the failure of politics, and it is up to the government to
resolve the root causes. Until then, the AFSPA keeps the army empowered, and the law
remains a necessary weapon of last resort.

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