A STUDY OF ARMED FORCES SPECIAL POWER ACT,1958

WITH SPECIAL REFERENCE TO HUMAN RIGHTS IN

INDIA

DISSERTATION

SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT

FOR THE AWARD OF THE DEGREE OF MASTER OF LAWS

SUPERVISED BY: SUBMITTED BY:

DR. SARIKA TYAGI RAJENDRA SINGH

ASSOCIATE PROF. LL.M. 4th SEM
FACULTY OF LAW Enrolment No 1705020001157
SWAMI VIVEKANAND Roll No:
SUBHARTI UNIVERSITY

SWAMI VIVEKANAND SUBHARTI UNIVERSITY,

MEERUT, (UTTAR PRADESH)
(2019)
 CERTIFICATE OF THE SUPERVISOR

This is to certify that the research work titled “A STUDY OF ARMED FORCES
SPECIAL POWER ACT,1958 WITH SPECIAL REFERENCE TO HUMAN
RIGHTS IN INDIA” is the work done by Rajendra Singh bearing the Roll No:
58461 and Enrolment No 1705020001157 . He has completed his Dissertation
in the partial fulfilment of the requirement for the award of degree of Master of
Laws under my guidance and supervision at Sardar Patel Subharti Institute of
Law Swami Vivekanand Subharti University, Meerut. I am glad to notify that
he has put in hard work and sincere efforts with keen interest to cultivate this
research work.

He has collected the relevant material from various sources and assimilated
them intelligently. He also discussed the ratios of decided verdicts of the
Supreme Court and High Courts. He has researched and presented the topic in
concise, systematic and well arranged manner. Throughout the course of the
work he has made sincere efforts and has succeeded to a great extent in writing
this dissertation in a lucid and comprehensive language. The study shall
definitely pave way for future research and development in the field of Legal
Sphere. My good wishes are with him.

I wish him all success in life.

(DR. SARIKA TYAGI)

Associate Professor
 TABLE OF CONTENTS

SUPERVISOR CERTIFICATE
DECLARATION I
ACKNOWLEDGEMENT II
PREFACE III
LIST OF ABBREVIATIONS VI
ACRONYMS VII
OPERATIONAL DEFINITIONS VIII
LIST OF CASES XI

CHAPTER-1

INTRODUCTION

1.1 Genesis 1
1.2 Disempowerment of the Soldier 4
1.3 Need of an Enabling Legislation for Security Forces 6
1.4 The Anguish 7
1.5 Hypothesis 11
1.6 Scope of the Study 11
1.7 Objectives of the Study 11
1.8 Research Methodology 12
1.9 Anatomy of the Work 12

CHAPTER-2

HISTORICAL BACKGROUND AND NECESSITY OF AFSPA

2.1 Historical Background 15

2.11 AFSPA: Pre-Independence 15
2.1.2 AFSPA: Post-Independence 15
2.2 Provisions of AFSPA, 1958 18
2.3 Necessity of AFSPA 19
2.4 Invoking AFSPA: Pre-Requisites 20
2.5 Issue & Challenges for Security Forces in LICO Zones 21
2.5.1 Prevailing Environmental Realities in LICO Zones 22
2.5.2 Peculiarities in LICO Zones 26
2.5.3 LICO Vs Conventional Operations 28
2.5.4 Legal Challenges at Tactical Level 30
CHAPTER-3

ANALYSIS OF ARMED FORCES SPECIAL POWER ACT FROM HUMAN

RIGHTS PERSPECTIVE 31
3.1 Concept of Human Rights 31
3.2 UN Declaration of Human Rights 32
3.3 AFSPA & International Human Rights Organizations 33
3.3.1 Human Rights Watch 34
3.3.2 Asian Center for Human Rights 34
3.3.3 World Organization Against Torture 35
3.3.4 Amnesty International 36
3.3.5 Working Group on Human Rights in India & UN. 37
3.3.6 International Treaty Bodies 37
3.4 Human Rights: An Indian Perspective 38
3.4.1 Constitutional Provisions 39
3.4.2 NHRC 40
3.5 Indian Security Forces & Human Rights 41
3.5.1 Armed Forces 41
3.5.2 Border Security Force 46
3.5.3 Central Reserve Police Force 48
3.6 AFSPA: A Critical Analysis 41
3.5.1 Constitutional Contradictions 50
3.5.2 AFSPA-Constitutional Validity 56
3.5.3 Analysis of Data collected through Field Survey 58
3.5.4 Analysis from Soldier’s Human Rights Perspective 74

CHAPTER -4
Perceived Misuse and Risk of Dilution of AFSPA 77
4.1 Perceived Misuse of AFSPA 77
4.1.1 Excessive Use of Force 77
4.1.2 Use of Pellet Firing Shot Gun 78
4.1.3 Torture 79
4.1.4 Enforced Disappearance 80
4.1.5 Extra-Judicial Executions 80
4.1.6 Rape, Sexual Assault, Molestation & other Crimes against
the Women 81
4.1.7 Voices of Dissent 82
4.2 Risk of Dilution of AFSPA 83
4.2.1 Consequences at Strategic Level 84
4.2.2 Consequences at Tactical Level 85
 4.2.3 Impact on Anti-Insurgency Operations 87
4.2.4 Violence Perpetrated by Armed Groups 87
CHAPTER-5
Initiatives to Measure the Balance between AFSPA & Human Rights 91
5.1 Initiative by the Executive 91
5.1.1 Justice Jeevan Reddy Committee 91
5.1.2 Second Administrative Reform Commission 92
5.1.3 Views of Different States/State Bodies 93
5.1.4 National Human Rights Commission 93
5.1.5 India’s Report to UNHRC Under UPR 94
5.1.6 Planning Commission 95
5.1.7 Commission for Judicial Scrutiny 95
5.1.8 Justice Santosh Hegde Commission 96
5.1.9 Justice Verma Committee Report 96
5.2 Juristic Opinions 97
CHAPTER-6
Conclusion & Suggestions
6.1 Conclusion 102
6.2 Suggestions 104
BIBLIOGRAPHY XII
ANNEXURES