A July Supreme Court Order Illustrates That Solutions To Issues With The AFSPA Can Only Come From The Government

08/09/2020 A July Supreme Court Order Illustrates That Solutions to Issues with the AFSPA Can Only Come
he AFSPA Can Only Come from the Government
REPORTAGE / CONFLICT
A July Supreme Court Order Illustrates That

Solutions to Issues with the AFSPA Can Only Come
from the Government
MANU CHATURVEDI
07 September 2016
As an all-party delegation prepared to visit Kashmir on 4 September, on the eve of the visit, opposition
leaders suggested the government withdraw troops deployed under the Armed Forces Special Powers
Act from civilian areas in Kashmir. YAWAR NAZIR/GETTY IMAGES
On 29 August 2016, the government lifted

(http://www.hindustantimes.com/india-news/after-record-51-days-
curfew-to-be-lifted-from-kashmir-valley-tomorrow/story-
mUWVrB0X9Z6MV8FQaQjt1K.html) a curfew that had been imposed
in Kashmir in the wake of protests that followed the killing of the
Hizbul Mujahideen commander, Burhan Wani, on 8 July. During the
curfew, which lasted 51 days, Kashmir saw its most violent uprising
since 2010. Protests were buoyed by reports of a brutal crackdown by
security forces—hundreds of Kashmiris were injured or blinded
(http://www.aljazeera.com/news/2016/08/kashmir-hundreds-su er-
eye-injuries-pellet-guns-160821054617323.html) by the use of pellet
guns, and incidents such as the killing of a schoolteacher by security
personnel on 18 August received national coverage
(http://www.catchnews.com/national-news/srinagar-army-admits-
killing-a-kashmiri-teacher-during-overnight-raids-says-quot-
unjusti ed-and-unacceptable-quot-1471676753.html). By the time the
curfew was lifted, nearly 70 civilian deaths
(http://www.thehindu.com/news/national/25-injured-in-fresh-clashes-
in-kashmir-death-toll-rises-to-68/article9040670.ece) had been
https://caravanmagazine.in/vantage/supreme-court-order-solutions-issues-afspa-government 1/11
08/09/2020 A July Supreme Court Order Illustrates That Solutions to Issues with the AFSPA Can Only Come from the Government
con rmed, and close to 10,000 people had been injured

(http://www.thehindu.com/news/national/other-states/jammu-and-
kashmir-political-crisis-curfew-lifted-from-kashmir-after-51-
days/article9045150.ece). But the respite was short-lived. By 1
September, curfew had been reinstated in all major towns in the valley
(http://indianexpress.com/article/india/india-news-india/kashmir-
curfew-returns-to-valley-as-all-party-team-visits-sunday-
3010630/http:/indianexpress.com/article/india/india-news-
india/kashmir-curfew-returns-to-valley-as-all-party-team-visits-
sunday-3010630/).
A few days before it was rst lifted, on 25 August, during his second
visit to the state since protests began,the home minister Rajnath Singh
had announced that
(http://economictimes.indiatimes.com/news/politics-and-
nation/alternatives-to-pellet-guns-in-few-days-rajnath-
singh/articleshow/53857508.cms) an all-party delegation would soon
visit Kashmir. A home ministry o cial later said that the delegation
would leave on 4 September. On the eve of the visit, leaders from the
Communist Party of India and the Communist Party of India-Marxist
(http://indianexpress.com/article/india/india-news-india/reach-out-
to-people-in-kashmir-for-long-term-solution-left-3012332/)suggested,
among other things, that (http://www.business-
standard.com/article/news-ians/all-party-visit-government-for-
consensus-opposition-wants-afspa-removed-116090300577_1.html) the
government withdraw troops deployed under the Armed Forces
(Special Powers) Act, or the AFSPA, from “civilian areas” in the state.
The withdrawal did not occur. During the visit, separatist leaders
refused to meet members of the delegation
(http://indianexpress.com/article/india/india-news-india/kashmir-
unrest-hurriyat-refuses-to-meet-leaders-of-all-party-delegation-
lashes-out-at-cm-mehbooba-mufti/). When the visit concluded on 5
September, little headway had been made on the situation
(http://economictimes.indiatimes.com/news/politics-and-nation/all-
party-delegation-ends-jk-visit-without-any-
breakthrough/articleshow/54019115.cms) in the state. Currently,
political resolution in the near future seems unlikely. It is safe to say

that mutual distrust endures on all sides, and that the continued
application of martial laws such as the AFSPA
will further fuel resentment and fear among the people of Kashmir.
In the context of this political dialogue, with the AFSPA as background,

it is useful to go back to an event of 8 July. The same day that Wani was
killed, far away from Kashmir, the Supreme Court passed a detailed
interim order (http://supremecourto ndia.nic.in/FileServer/2016-07-
08_1467967629.pd )—a preliminary order before the nal judgment—
in the Extra Judicial Execution Victim Families Association (EEVFAM)
case, which arose out of a writ petition lodged by the EEVFAM in 2012.
The case considers 1,528 instances of alleged extra-judicial killings by
security forces, including the army, deployed in Manipur under the
AFSPA. (Disclosure: between 2013 and 2014, I assisted the Amicus
Curiae, an impartial advisor to the court, on this case). In the current
context, the order makes for an instructive read.
In the order, a two-judge bench held that any use of excessive force by
security forces is unlawful, even if they are deployed in disturbed areas
under the AFSPA. It also stated that any alleged use of such force must
be investigated by the state, while chiding it for having done so in a
shoddy manner in the past. Many media reports highlighted the order
for its strong stance on excessive force
(http://scroll.in/article/811521/supreme-court-judgement-on-afspa-
sets-stage-for-huge-improvement-in-indias-human-rights-situation),
and some celebrated the court’s remarks as putting an end to the
impunity a orded to the armed forces under the AFSPA
(http://www.thehindu.com/todays-paper/sc-ends-impunity-for-
armed-forces-in-disturbed-areas/article8825946.ece).
While that perception may stand, the order actually says little that has
not been said before by courts. In fact, it is primarily an act of
consolidation, where the court brought together jurisprudence evolved
over many cases. Through it, the court has retraced its past nding
upholding the constitutionality of AFSPA, and retraced the restrictions
it imposed on the scope of its provisions. These include restrictions on
Section 4, which outlines the scope of the army’s power to use force.
The court also restated its resentment at the way in which the state
investigates allegations of extra judicial killings and again lamented the
feeble interventions of human-rights bodies such as the National
Human Rights Commission.
(/covid-19?ref=article&id=3181)
Advertisement
The order does not delve deeper than it already has for solutions to
many other problems of reconciling laws such as the AFSPA with basic
democratic rights of Indian citizens—namely, to live a life of dignity
and within the equal protection of law. Its focus on anguished rhetoric
and reiteration suggest that the judiciary is constrained to pass further
binding directions without seeming to overstep its mandate. The order
begs a bigger question that confronts not only Manipur, but also
Kashmir and parts of other states such as Chhattisgarh where troops
continue to be deployed: what compels the state to continue to
implement martial laws such as the AFSPA, even when they have
proven contrary to our constitutional commitment to democratic
values?
One can gauge the state’s commitment to using martial law as a policy
tool in disturbed areas by tracing its position on the use of excessive or
retaliatory force in disturbed areas during encounters or protests. The
undeniable emphasis on retaining impunity for the armed forces is
e ectively captured in the EEVFAM order.
A seminal case for the Supreme Court’s ndings on the AFSPA is the
1998 Naga People’s Movement case
(https://indiankanoon.org/doc/1072165/). To this day, the case
represents the most comprehensive challenge to the constitutionality

of AFSPA, and most of the legal principles cited in the EEVFAM order
can be found in this judgment. In it, a ve-judge bench of the Supreme
Court upheld the AFSPA legislation but narrowed down the scope of
Section 4, which empowers armed forces personnel deployed under
the act to use force in a range of circumstances, even to the extent of
causing death. Pointing to a list of do’s and don’t’s that the army had
issued to guide conduct under the AFSPA, the Naga People’s ruling
held that Section 4 did not contemplate arbitrary and unquestionable
use of force, as argued by the state, but only minimal force for e ective
action.
Nearly eighteen years after that ruling, in the ongoing EEVFAM case, it
appears that the state sensed an opportunity to circumvent the
restriction imposed on it through the Naga People’s judgment. By
expanding its argument beyond the AFSPA and averring to powers and
duties of the security establishment under various other laws, the State
sought loosening of these restrictions. Its legal team repeatedly pointed
to provisions under the Army Act, the Code of Criminal Procedure
(CrPC), the Indian Penal Code (IPC) and the Unlawful Activities
Prevention Act (UAPA), citing instances that a ord security personnel
the discretion to use necessary force. The state quoted provisions such
as Sections 99 to 106 of the IPC, which grant personnel the right of
private defence, even to the extent of causing death, in the event that
they perceive the threat of insurgency. It also argued that a warlike
situation exists in Manipur where armed militant cadres operate as
enemies of the state. All in all, the state contended that even beyond
the pale of the powers under the AFSPA, which were considered in the
Naga Peoples’ case, it was well within the powers of the security
apparatus to retaliate with as much force as it saw t. In it’s opinion,
the degree and nature of force employed by security personnel to ful l
this “bounden duty”— a term captured in the interim order—could not
be subject to judicial scrutiny.
True Media Needs True Allies | Rahab Allana | The Caravan M…

M…
SUBSCRIBE(HTTPS://CARAVANMAGAZINE.IN/SUBSCRIBE)
Advertisement
The strategy back red, and the state ended up with a broader
illustration on why the use of excessive force by any security personnel
is squarely prohibited.
In a few vaulting passages in the order, the court dismantled the state’s
argument. Firstly, it found that there is neither a warlike situation in
Manipur, nor is every suspect in a disturbed area an enemy of the state.
Then, like it had in the Naga People’s case, it pointed to documents
that require security personnel to refrain from using excessive force
even against the enemy: the army’s guidelines, international treaties
such the Geneva Conventions (a set of international protocols that
prescribe humane rules to follow during war) and other international
legal precedents. It also wondered about the grave consequences of
killing Indian citizens and lamented that the armed forces were being
used against our “countrymen and women.” The court found the
state’s argument to be “far too sweeping,” and held that every
allegation of use of excessive force would have to be met seriously. “In
the enquiry, it might turn out that the victim was in fact an enemy and
an unprovoked aggressor and was killed in an exchange of re,” the
court wrote in the order. “But the question for enquiry would still
remain whether excessive or retaliatory force was used to kill that
enemy.”
The state’s failed attempt to convince the court betrays a lack of moral
and strategic sensitivity, which underpins its preference for muscular
policies over democratic engagement with the population. Some
concerns of the establishment that were contained in the order—such
that an armed force operating in a disturbed area needs some “legal
and logistic” protection—may not be unfounded. However, it is still
perturbing to see how much more needs to be done in bringing
cogency and accountability to laws such as the AFSPA. Inconsistencies
and dead-ends continue to endure. In fact, some are re ected in the
EEVFAM order.
For instance, while the court reprimands the state for shielding errant
security personnel even in cases where investigation into encounters
points to foul play, it is content with legal provisions in the AFSPA and
the CrPC that give the government the nal say in granting sanction
for prosecution. The court also underscores the absurdity of re-
notifying the AFSPA in Manipur inde nitely (a power that is implicit in
Section 3, which allows it to declare areas as “disturbed areas”), but it
does not tell us exactly how it proposes to exercise veto over this
decision. Further, it lists the appalling ndings of the Hegde
Commission, which the court set up in 2013 to investigate six of the
1,528 cases of alleged extra judicial killings in Manipur, and which
found that none of these cases seemed to be true encounters. But it
does not elaborate on the problems that any investigative body will
face: some of these cases are decades old, and those that are fresh are
usually poorly investigated, leaving little in the way of good evidence
that can withstand the judicial scrutiny of a criminal trial.
Such impediments, which come in the way of ensuring accountability,

are bound to emerge in a complex judicial system where special laws
such as the AFSPA interact with general laws such as the CrPC and the
Evidence Act. With its limited mandate and inability to e ect
legislative changes or direct policy reform, the court cannot resolve
them. It is hardly any wonder then, that its conclusions were mere
reiterations of the Naga People’s judgment.
(/magazine/2020/09)CURRENT ISSUE / SEPTEMBER 2020

(/magazine/2020/09)
Advertisement
The fact remains that, so long as the need to impose the AFSPA
sustains in the eyes of the administration, these issues will continue to
reverberate and might even nullify the limited progress made by
courts. Therefore, a comprehensive resolution must wind down to
questioning the political wisdom of deploying the armed forces under
the AFSPA and asking: does its incessant implementation, even in civic
areas, serve the underlying objective of lasting security and
reintegration in disturbed areas?
The debilitating impact of the AFSPA on a ected communities and its

various socio-legal implications, including, as the Manipur-based
journalist Pradip Panjhoubam writes
(http://www.news18.com/blogs/india/pradip-phanjoubam/hunter-
gatherer-afspa-re ects-the-poverty-of-liberal-imagination-10876-
747009.html), the “culture of impunity” it has helped create, arewell-
documented (http://www.idsa.in/system/ les/Monograph7.pd ).
Relentless application of such laws has helped create a perverse
ecosystem of various human rights’ abuses, private arms dealing and
drug tra cking (http://morungexpress.com/afspa-bene ts-only-the-
corrupt-ahrc/). The cycle of militant violence and state reprisal has
in icted unimaginable horror on the civilian population. In Kashmir,
an entire generation of politically and economically alienated youth
(http://timeso ndia.indiatimes.com/india/Unemployment-a-reason-
for-surge-in-JK-violence/articleshow/51849148.cms)—spurred on by
excesses by security forces and mutinous opportunists—is responding
with hapless violence aimed at thwarting the armed occupation and its
poster child, the AFSPA. Meanwhile in Manipur, the notorious
confession of a police commando named Herojit
(https://www.theguardian.com/world/2016/jul/21/confessions-of-a-
killer-policeman-india-manipur) that he alone extra-judicially
executed over 100 people, bears witness to the impunity martial law
creates.
Taken together, these examples demonstrate that the use of laws such
as AFSPA is more than simply a misguided policy tool which undercuts
the need of politically sensitive solutions emphasising democratic
values and tact; it is a corrosive model of governance. In that sense, it is
more resilient, dangerous and counter-productive.
In the end, the strategic view that martial laws such as AFSPA have
further alienated citizenry, created parallel political economies and
distanced us from the twin objectives of lasting security and re-
integration, must be the starting point of new policy formulations.
The case against the AFSPA, or legislation similar to it, is not a case
against troop deployment in disturbed areas. It is a case against the
nature and scope of such deployment, as well as the reasoning behind
it. It is recognising that the implementation of such laws is based on a
tardy assumption that deploying troops as means of controlling a
cynical civilian population—in Kashmir or in Manipur—and granting
these troops wide powers and extensive immunity, is our best bet to
restore normalcy. It is really an attempt to create space for an
alternative view, which could favour a nuanced mix of deploying the
armed forces primarily along our borders, gradual retrenchment of
troops from civic areas, and political engagement of disenchanted
populations. Frankly, this is highly improbable in the current
environment, which is dominated by a binary that either demonises
the security forces in broad strokes or alienates the brutalised
population that inhabits these regions.
In the meantime, as we wait for the nal order in the EEVFAM case, it
is important to remember that the Supreme Court is looking into 1,528
potential cases of extra-judicial killings. Here, the court is only seeking
to establish a measure of accountability within the realm of the AFSPA.
Having upheld the view that we must make space for laws such as the
AFSPA in our democracy in the interest of national security, it can no
longer reach beyond this realm. Whether we like it or not, it appears
that solutions to the AFSPA conundrum will have to come from the
political establishment.
MANU CHATURVEDI (/AUTHOR/916) is a Delhi-based lawyer.

KEYWORDS: Manipur(/tag/manipur) Kashmir(/tag/kashmir)
Indian Supreme Court(/tag/indian-supreme-court) AFSPA(/tag/afspa)
security(/tag/security)
Armed Forces Special Powers Act(/tag/armed-forces-special-powers-act)
armed forces(/tag/armed-forces) IPC(/tag/ipc)
democratic rights(/tag/democratic-rights) Extra judicial killings(/tag/extra-judicial-killings)
interim order(/tag/interim-order)
COMMENT
Type your comment
SUBMIT
MORE FROM THE CARAVAN
CONFLICT HEALTH GOVERNMENT
ESSAY COMMENTARY COMMENTARY

The heavy cost of Kashmiri separatist Internet restoration

revoking Article 370 leader Altaf Ahmad in Jammu and
in Kashmir Shah’s daughter says Kashmir is an
PRAVEEN DONTHI RUWA SHAH NAMRATA MAHESHWARI
POLITICS CRIME CONFLICT
NEWS ESSAY PHOTO ESSAY
Two Kashmiri Revisiting the Winters of disquiet in

families say tear-gas hanging of Afzal Kashmir
smoke killed their Guru
QURATULAIN REHBAR ARUNDHATI ROY SOHRAB HURA
About Us Contact Us Subscribe Privacy Policy

Masthead Submit to Us Advertising Terms and Conditions
Careers Syndication

A July Supreme Court Order Illustrates That Solutions To Issues With The AFSPA Can Only Come From The Government

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

A July Supreme Court Order Illustrates That Solutions To Issues With The AFSPA Can Only Come From The Government

Uploaded by

Copyright:

Available Formats

08/09/2020 A July Supreme Court Order Illustrates That Solutions to Issues with the AFSPA Can Only Come

he AFSPA Can Only Come from the Government

A July Supreme Court Order Illustrates That

On 29 August 2016, the government lifted

con rmed, and close to 10,000 people had been injured

political resolution in the near future seems unlikely. It is safe to say

In the context of this political dialogue, with the AFSPA as background,

represents the most comprehensive challenge to the constitutionality

True Media Needs True Allies | Rahab Allana | The Caravan M…

Such impediments, which come in the way of ensuring accountability,

(/magazine/2020/09)CURRENT ISSUE / SEPTEMBER 2020

The debilitating impact of the AFSPA on a ected communities and its

MANU CHATURVEDI (/AUTHOR/916) is a Delhi-based lawyer.

Type your comment

MORE FROM THE CARAVAN

CONFLICT HEALTH GOVERNMENT

ESSAY COMMENTARY COMMENTARY

The heavy cost of Kashmiri separatist Internet restoration

POLITICS CRIME CONFLICT

NEWS ESSAY PHOTO ESSAY

Two Kashmiri Revisiting the Winters of disquiet in

About Us Contact Us Subscribe Privacy Policy

You might also like