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AFSPA a Necessity or Human Rights Violation: Specific Emphasis On Jammu &

Kashmir: An Analysis

SEMINAR PAPER ON
CRIMINOLOGY, PENOLOGY AND VICTIMOLOGY LAW
PRESENTED TO
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
VISAKHAPATNAM

Submitted by
KANDURI KOUSHIK
5th Year, B.A., LL.B. (Hons.)
Roll No: 201119
DSNLU
Visakhapatnam

Guided by
Mr. R. V Vishnu Kumar
ASSOCIATE PROFESSOR
DSNLU

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY


VISAKHAPATNAM-17
2011-2016

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AFSPA A NECESSITY OR HUMAN RIGHTS VIOLATIONS:


SPECIFIC EMPHASIS ON JAMMU & KASHMIR:
AN ANALYSIS

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CERTIFICATE
This is to certify that the project entitled, AFSPA a necessity or Human Rights Violations:
Specific Emphasis on Jammu and Kashmir: An Analysis" submitted by K.Koushik in fulfilment
of the requirements of the 9th Semester in B.A. LL.B (Hons.) at the Damodaram Sanjivayya
National Law University is an authentic work carried out by him under my supervision and
guidance.

Guide
Mr. R V Vishnu Kumar, LL.M.
Teacher Associate

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ACKNOWLEDGMENT

I would like to express my gratitude to Mr. R. V. Vishnu Kumar, Teacher Associate for giving me
the opportunity to work on this topic and guiding towards completing the project in an
appropriate manner. I would like to thank everyone who has supported me and guided me
towards completing this Research paper.
K.Koushik
(201119)

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DECLARATION

I declare that thesis titled AFSPA a Necessity or Human Rights Violation: Specific Emphasis on
Jammu & Kashmir: An Analysis is an authentic record of my own contribution and bonafide
research, carried out under the supervision of Prof RV Vishnu Kumar in accordance with
regulations of the Damodaram Sanjivayya National Law University, for the award of the ,Degree
in Law.
This research work has not been previously submitted to any University or Institution for the
award of any Diploma, Degree or any other similar title.

Visakhapatnam
Date:

Attested:
Research Supervisor:

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Name of the Student

Table of Contents
CHAPTER I INTRODUCING AND CONCEPTUALIZING AFSPA.........................................9
1.1 Synopsis............................................................................................................... 9
1.2 Introduction.......................................................................................................... 9
1.3 Historical Background......................................................................................... 10
1.4 Circumstances and Contributing Factors Leading to Enactment of AFSPA..........11
CHAPTER II NEED FOR THE ACT IN THE STATE OF JAMMU & KASHMIR AND ITS
EFFECTIVE IMPLEMENTATION TO CURB TERRORISM.................................................12
2.1 Introduction........................................................................................................ 12
2.2 Need for the Act in the State of JAMMU & KASHMIR...........................................12
2.3 Role of AFSPA in Curbing Terrorism in Jammu & Kashmir....................................13
2.4 The Ground Situation on Terrorism.....................................................................14
2.5 What If AFSPA Is DILUTED?................................................................................. 14
2.6 Effective Implementation of AFSPA in Jammu and Kashmir Curb Terrorism........15
CHAPTER III AFSPA IN JAMMU AND KASHMIR: AN ANALYSIS......................................17
3.1 Introduction........................................................................................................ 17
3.2 The Legal Analysis on AFSPA..............................................................................18
3.2.1 Protection against arrest and detention..........................................................18
3.2.2 Militarys immunity/lack of remedies...............................................................19
3.2.3 The Army Act................................................................................................... 19
3.3 Analyzation of the Act and its impact in Jammu & Kashmir................................19
3.5 Is It Illegal or Exaggerated as Draconian.........................................................20
3.6 Repeal or Retain AFSPA...................................................................................... 21
3.7 Present Scenario................................................................................................. 23
CHAPTER IV AFSPA VS HUMAN RIGHTS.....................................................................25
4.1 Introduction........................................................................................................ 25
4.2 AFSPA and Human Rights: For and Against Archives..........................................26
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4.3 Allegations of Human Rights Violations..............................................................28


4.4. AFSPA: Politics, Military and Human Rights........................................................29
4.5 Observations:..................................................................................................... 31
CHAPTER-V SUGGESTIONS AND CONCLUSIONS........................................................33
5.1. Conclusion......................................................................................................... 33
5.2.
Suggestions
.34

Bibliography
Web Sources
Books Referred

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LIST OF ABBRIEVATIONS

AFSPA: Armed Forces Special Powers Act


J&K: Jammu & Kashmir
TOI: Times of India
MHA: Ministry of Home Affairs
Lt Gen: Lieutenant General
IDR: Indian Defence Review
DGP: Director General of Police
ICCPR: International Covenant on Civil and Political Rights
UNHRC: United Nations Human Rights Commission
IED: Improvised Explosive Devices
CrPC: Criminal Procedure Code

CRIMINOLOGY, PENOLOGY AND VICTIOMOLOGY


SYNOPSIS
AFSPA A NECESSITY OR HUMAN RIGHTS VIOLATION: SPECIFIC EMPHASIS ON
JAMMU & KASHMIR: AN ANALYSIS
MODE OF RESEARCH:

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The researcher has adopted the doctrinal form of research in completing this project. All
theoretical information was gathered from books and the internet. The assimilated information
was analyzed on the basis of which conclusions were drawn. The sources for the research have
been mentioned in the relevant footnotes when used
RESEARCH QUESTIONS
What are the circumstances that lead to enact the Armed Forces (Special Powers) Act?
Can APSFA really curb Terrorism and Insurgency in Jammu & Kashmir or is it just
frivolous legislation acting against the Indian Constitution?
How Armed Forces Special (Powers) Act is a legislation which effectively CountersTerrorism and Contrarily Abuses the Human Rights in the Valley? Can Alleged Human
Rights Violations be justified?
RESEARCH OBJECTIVES
The main objectives of this research paper is to know:

The validity of the legislation and the successiveness in curbing insurgency & terrorism

in J&K
How the government couldnt repeal this act or legislation even after criticisms from
many human rights activists around the world and can this justified? RESEARCH
PROBLEM:

The predominant reason to execute Armed Forces Special (Powers) Act in the state of Jammu &
Kashmir was to curb terrorism which is rampant but there is extreme pressure on Government to
revocate AFSPA from Human Rights Activists across the world and International
Recommendations as well. The problem associated with it is to ascertain whether AFSPA
revocation may put peace in J&K at stake or restore the peace and benefit the people.
HYPOTHESIS:
The hypothesis of this paper is that the ultimate implementation and effective execution of
AFSPA in the state of Jammu & Kashmir is just the need of hour to curb the terrorism and
prevail peace in the valley but apparently & equivocally it is abusing the Human Rights in the
valley of Jammu & Kashmir

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REVIEW OF LITREATURE:

General (Retd) V.P.Malik , Chief of Army Staff (2013) Raging Debate on Armed Forces
Special Powers Act in J&K, AFSPA, Human Rights and the army: SPs decades of
boundless excellence since 1984: SPs Military, Aerospace and Internal Security: SPs

Publications.
Vivek Chadha (ed.), Armed Forces Special Powers Act: The Debate, IDSA Monograph
Series No. 7, 2012: Ali Ahmed, Reconciling AFSPA with the Legal Spheres, Journal of
Defence Studies, 5 (2), April 2011: K.C. Dixit, Revoking AFSPA Blown Out of
Proportion, Journal of Defence Studies, 4 (4), October 2010: K. C. Dixit, Calling the
Army for Peace Restoration, IDSA Comment, August 23, 2010: Pranathi Reddy asked:
Can the repeal of the AFSPA in J&K revive peace from Institute of Defence Studies and
Analyses.

SOURCE OF DATA
Primary sources of information have been used from the DSNLU Law Library. Soft copies of
articles by eminent authors have been used as secondary sources of information from online
databases such as JSTOR, WESTLAW etc. No part of this project is plagiarized, and it is the
original work of the researcher
SCHEME OF CHAPTERISATION:
Chapter 1 deals with the AFSPA, its origin, Criminological circumstances and the factors
contributing towards its enactment.
Chapter 2 deals with implementation of Act in the state of Jammu & Kashmir and need of the act
to curb terrorism in the valley.
Chapter 3 deals with AFSPA in state of J&K a legal analysis, Significance, Effects and Present
Scenario
Chapter 4 deals with AFSPA is a legislation that abuses the Human Rights and can it be justified.
Chapter 5 deals with conclusion.
TIME STUDY
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The researcher has been completed this research in two and half months of time

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PART-I

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CHAPTER I INTRODUCING AND CONCEPTUALIZING


AFSPA
Synopsis
This chapter deals with the historical background, its Origin, Criminological Circumstances
contributing factors that lead to enact Armed Forces Special (Powers) Act and . In this chapter
researcher actually dealt with the basics of the Act.
Introduction
AFSPA, as a precursor to Maintenance of Internal Security Act, was used extensively before and
during the Emergency. Armed Forces (Special Powers) Acts (AFSPA), are Acts of the Parliament
of India that grant special powers to the Indian Armed Forces in what each act terms "disturbed
areas". One such act was passed on 11 September 1958 and applied to the Seven States in Indias
northeast. Another such act was passed in 1990 and applied to Jammu and Kashmir1. The Acts
have received criticism from several sections for alleged concerns about human rights violations
in the regions of its enforcement alleged to have happened. All these laws were carefully worded
so that no offence needed to be committed by the "locals" to justify even a noncommissioned
officer of the Indian Army taking drastic or even lethal action2.
The Armed Forces Special Powers Act, was basically brought forward as an immediate measure
to control the insurgency problem. The AFSPA has been much demonized by civil society groups
and the media in recent years. Two aspects need to be noted. Firstly, the AFSPA can be applied
only after an area is declared a disturbed area by the State/Centre. Secondly, it provides a legal
cover for Army personnel in carrying out effective counter militancy operations3.
Under the AFSPA, in a disturbed area, a commissioned officer, warrant officer, noncommissioned officer or any other person of equivalent rank in the armed forces can:
1 Muzamil Jaleel for the Indian Express. March 30, 2015. Explained: AFSPA-Disturbed Areas debate in
J&K
2 http://scroll.in/article/738707/the-emergency-that-continues-25-years-of-afspa-in-jammu-kashmir
3 General (Retd) V.P.Malik , Chief of Army Staff (2013) Raging Debate on Armed Forces Special
Powers Act in J&K, AFSPA, Human Rights and the army: SPs decades of boundless excellence since
1984: SPs Military, Aerospace and Internal Security: SPs Publications.
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Arrest without warrant any person who has committed a cognizable offence and may use
suitable force, if necessary to do so. Enter any premises without a warrant to arrest a
terrorist/suspect, or to recover a wrongfully confined person, stolen property, or
arms/explosives wrongfully kept.

Fire upon/use force, even causing death, against any person contravening law and order
or carrying weapons, ammunition or explosives, if in his opinion it is necessary for
maintenance of law and order and after giving due warning.

Destroy an armed dump or fortified position or a shelter from which armed attacks can be
made or can be used for training by hostiles, if necessary to do so.

The Act lays down that the arrested persons will be handed over to the nearest police station
with the least possible delay, and no prosecution, suit or other legal proceeding can be
instituted against any person in respect of anything done under this Act except with the previous
sanction of the Central Government.4
Historical Background
The Naga National Council proclaimed Nagaland's independence. In retaliation, Indian
authorities arrested the Naga leaders. An armed struggle ensued and there were large casualties
on either side. The Armed Forces Special Powers Act is the product of this tension. Similarly in
the state of Jammu and Kashmir, the flawed elections of 1987, in which the leaders of MUF
(Muslim united front) had to face a fabricated defeat at the hands of mainstream political parties,
resulted in violent means of struggle for secession from India. The massive militant uprising
coupled with large scale infiltration of cross border militants turned the situation volatile. In
order to suppress the movement, the central government Introduced AFSPA in 1990. The Act was
born during Governors Rule in 1990 as Governors Act No. 12. In 1992, it was replaced by the
J&K Disturbed Areas Act. It was not referred to Parliaments Consultative Committee on J&K
Legislation because of the urgency of the matter. AFSPA was enacted by Parliament on
September 11, 1958. It was first implemented in the Northeast, and then in Punjab. In September

4 http://www.mha.nic.in/sites/upload_files/mha/files/pdf/Armedforces%20_J&K_
%20Splpowersact1990.pdf
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1990, Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which
was deemed to have come into force retrospectively from July 5, 1990.

Circumstances and Contributing Factors Leading to


Enactment of AFSPA
The Armed Forces Special Powers Act (AFSPA) was enacted to provide necessary powers and
legal protection to the Armed Forces while carrying out proactive operations against the
insurgents in a highly hostile environment. Since then, the Armed Forces have been able to
effectively contain insurgency and establish stability in the region 5. The controversial and
contributing factors leading to enactment of AFSPA are6:

Insurgency and raise of terrorism in the Valley


The Political unrest and disturbed public Law & Order
The massive militant uprising coupled with large scale infiltration of cross border

militants turned the situation volatile.


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.

5 Lt Gen Mukesh Sabharwal, Operational Importance of AFSPA, Indian Defence Review, 26/07/2015.
6 Supra note 4
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PART-II

CHAPTER II NEED FOR THE ACT IN THE STATE OF JAMMU &


KASHMIR AND ITS EFFECTIVE IMPLEMENTATION TO CURB
TERRORISM
2.1 Introduction
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The choice of declaring any area as disturbed vests both with state and central government.
After an area comes under the ambit of AFSPA, any commissioned officer, warrant officer, noncommissioned officer or another person of equivalent rank can use force for a variety of reasons
while still being immune to the prosecution. The factors such as Political unrest and disturbed
public Law & Order, the massive militant uprising coupled with large scale infiltration of cross
border militants turned the situation volatile. 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 unrest or instability in the state is too large for local forces to handle has
forced the parliament to enact this act to revive peace in the valley lead as a reasons for its origin.
2.2 Need for the Act in the State of JAMMU & KASHMIR
There is no gainsaying the fact that political necessity drives deployment of the security forces
for internal security duties. The forces are aware that they cannot afford to fail when called upon
to safeguard the countrys integrity. Hence, they require the minimum legislation that is essential
to ensure efficient utilization of combat capability. This includes safeguards from legal
harassment and empowerment of its officers to decide on employment of the minimum force that
they consider essential7.
The absence of such a legal statue would adversely affect the organizational flexibility of the
security of state. This would render the security forces incapable of fulfilling their role. In short,
it would imply that a soldier cannot fire upon a terrorist, cant take necessary action to destroy a
hideout and cant arrest anyone he suspects to be nations threat.
Consequentially, the security forces have a right to seek legal provisions to undertake operations
for three fundamental reasons. One, a soldier unlike a policeman is not empowered by the law to
use force. Next, while operating in far flung areas, it is simply not possible to requisition the
support of magistrates every now and then. Lastly, their employment is an instrument of last
resort when all other options have been exhausted8.

7 Lt Gen Harwant Singh, AFSPA is Need of Hour, Indian Defence Review (Dated 08 th Jan, 2013),
available at <http://www.indiandefencereview.com/search/?idr_search=idr&search=afspa+in+j
%26k&searchsubmit=Search> , last accessed on 08 th Oct,2015.
8 Supra Note 7
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As we have already seen the usefulness of AFSPA for the Indian soldiers, we can now easily
relate to the consequences of what is the role of AFSPA in curbing the terrorism in J&K.
2.3 Role of AFSPA in Curbing Terrorism in Jammu & Kashmir
Armed Forces Special Powers Act (AFSPA), Army says, Combating Pak sponsored terrorism in
J&K wont have been possible without AFSPA. The Act came into force in J&K 25 years ago.
However, peaceful Leh and Kargil districts in the Ladakh region were never brought under its
ambit. Had the Army not been tasked to combat terrorism in the state and the police was given
the job, it too would have needed a protection under a similar legislation9.
DGP, Ashok Prasad, currently Secretary (Internal Security) in the Ministry of Home Affairs, had
said, it was a misconception that armed forces were enjoying immunity under the law. He had
also stated that even the police would need some kind of legal cover akin to AFSPA in case they
were entrusted with the independent job of countering insurgency.
Defence Minister Manohar Parrikar had recently described AFSPA as mandatory if the Army has
to be deployed in J&K or any other state for internal security. Home Minister Rajnath Singh
yesterday said AFSPA will go when situation is conducive. March 20 and 21 terror attacks in
Kathua and Samba districts are still fresh in the minds of the people and hence AFSPA is
indispensable to combat terrorism, said an Army source. A call on AFSPA has to be taken
keeping in mind all the aspects and serious ramifications in case it is to be withdrawn, he added.
It may be stated here that Chief Minister Mufti Mohammed Sayeeds PDP wants the AFSPA to
be withdrawn, at least from peaceful areas to begin with, while its partner BJP has strong
reservations over any such move. There is a spike in terror activities this year. Some educated
youth have joined militant outfits and at the same time terror camps are still functional in PoK.
Security-related matter should better be decided on merit and not on political considerations,
added the source. Northern Army Commander Lt Gen DS Hooda had told the Tribune that 42
terror camps remained intact and militants had been kept in good numbers in various launch pads
across the LoC.10
9 Ravi Krishna Khajuria, Tribune News Services, Jammu (Dated 03 rd July, 2015), available at
<http://www.tribuneindia.com/news/jammu-kashmir/community/afspa-has-helped-forces-in-combatingterrorism-army/102035.html>, dated( 03rd July, 2015) Last accessed on 08th Oct,2015)
10 Supra Note 9
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2.4 The Ground Situation on Terrorism


The infiltration of terrorists into J & K has not substantially decreased. More importantly,
selective lifting of the AFSPA and withdrawal of the military from areas where there is minimal
terrorist activity will make the insurgents move into these very areas. After all, insurgents are not
tethered to only specific areas of the state. Once the military moves out from an area and
insurgents move in there, the first step they would take is to eliminate all the suspected sources
of military intelligence. Even those who were cooperating with the military or even sympathetic
to it could be targeted. Insurgents, under normal circumstances, draw sympathy and support from
the local population through coercion and terrorizing people by resorting to selected killings. But
in the case of J&K there exist elements within the state that are perennially in support of the
insurgents11.
Some others work towards perpetuating the uncertainty of the future of the state. The Indian
Army has been engaged in counter-insurgency operations for over six decades. There is no other
army in the world which has this range and depth of experience in this field. So, when the
military opposes the withdrawal of the AFSPA from certain proposed areas in J&K, the stance
rests on this vast experience, gained over a long period of time. On deployment in the insurgency
environment, it takes the military considerable time and effort to establish what is called counterinsurgency grid get to know the people, terrain and build intelligence sources12.
It is this grid and intelligence sources that insurgents invariably target, once the military moves
out and they move in and often, the period of truce or the withdrawal of the security forces is
used to regroup themselves.13
2.5 What If AFSPA Is DILUTED?
There has been a constant demand from all civil organisations that some of the provisions of
AFSPA must be diluted to make it more humane and accountable act. But the army believes the

11 http://www.indiandefencereview.com/afspa-in-jk-selective-withdrawal-may-be-harmful/, last accessed


on 09/10/2015
12 Ibid
13 Supra Note 11
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annulment of act could prove disastrous at the central and the state government levels. Three
issues merit attention:

Firstly, it would dilute the capacity of an important instrument of the state the armed

forces to tackle the security challenges faced by the country.


Secondly, it would motivate the insurgent leadership, field cadres and their over ground
supporters to engage in reckless damage to public life and property. It may well result in
a security situation which slides beyond redemption, necessitating major political

compromise.
Thirdly, the annulment of the law and the resultant lack of security cover would
adversely affect the governance and development capacities in the insurgency affected
states, and the eventual redress of local grievances14.

These three major outcome of if AFSPA is diluted were quite foreseeable so government of India
decided to make a commission to look into the issue.
2.6 Effective Implementation of AFSPA in Jammu and Kashmir Curb Terrorism
The terror infrastructure across the Line of Control has the potential to vitiate the security
environment in Jammu and Kashmir and AFSPA should not be withdrawn as it is a strategic
imperative and From 1,852 terrorists that infiltrated in 2001, the number in 2013 is 90, which is
owing to the efficacy of the dynamic, multi-layered counter-infiltration grid and relentless
operations by Army along with the state police and Central Armed Police Forces. A comparative
fatalities and assessment in Jammu & Kashmir are as follows.

Comparative Fatalities in J&K, 2001-200915


14 Lt Gen Balwant Rai, AFSPA removal may put J&K peace at stake, Indian military Review, available
at <http://www.imrmedia.in/imr/afspa.php>
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Year

SF personnel

Terrorists

Total

2001

590

2850

3440

2002

469

1714

2183

2003

338

1546

1884

2004

325

951

1289

2005

216

996

1212

2006

168

599

767

2007

121

492

613

2008

90

382

472

2009

78

244

322

15 South Asia Terrorism Portal Database available


at<http://www.satp.org/satporgtp/countries/india/states/jandk/> , last accessed on 11/10/2015
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PART-III

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CHAPTER III AFSPA IN JAMMU AND KASHMIR: AN


ANALYSIS
3.1 Introduction
In this topic we will be aiming to provide an analysis on an AFSPA comprehensive analysis of
the Act. First of all, those flowing from the Constitution of India, and international law sources,
with particular emphasis on the International Covenant on Civil and Political Rights (ICCPR) to
which India acceded in 1979, recognises a number of fundamental human rights, including the
right to life, the right not to be tortured or ill-treated, the right to liberty and security, fair-trial
rights, the right to privacy, and the right to freedom of assembly16.
AFSPA goes against both Indian and International Law Standards. This was illustrated only when
India presented its second periodic report to the United Nations Human Rights Committee in
1991. When the Attorney General of India was questioned by the members of UNHRC (United
Nations Human Rights Council) on how AFSPA could not be Deemed Constitutional under the
Indian Law and how it could be justified in light of article 4 of the ICCPR. He said that the
secession in the disturbed areas had to be responded on a war footing relying on the only
argument that the AFSPA is a necessary measure to prevent the secession of the disturbed states
such as Jammu & kashmir and 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 secession17.
Many cases challenging the constituency of the AFSPA are still pending before the Supreme
Court. The only way to repeal this act is if the Supreme Court declares AFSPA unconstitutional
but surprisingly the Delhi high court found the AFSPA conditional hence allowing to take
effect18.

16 A.N.Sen, concluding observations of the Human Rights Committee: India, UN Doc. CCPR/C/79/Add.
81, 8 April 1997, at para. 18, available at < http://www.unhchr.ch/tbs/doc.nsf/
(Symbol)/CCPR.C.79.Add.81.En> last accessed on 11/10/2015
17 Ibid
18 Ibid
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3.2 The Legal Analysis on AFSPA


The Right to life Article 21 of the Indian Constitution states that No person shall be deprived of
his life or her personal liberty except according to procedure established by law 19. Section 4(a)
of the AFSPA which grants armed personnel to shoot and kill. This is clearly violating article 21
of our Constitution.
3.2.1 Protection against arrest and detention
Article 22 of our Constitution states:
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.20
These two sections of article 22 of the IC can be used to safeguard the people arrested under the
AFSPA.
3.2.2 Militarys immunity/lack of remedies
Members of the armed forces in the state of India are protected from arrest for anything done
within the line of official duty by section 45 of the CrPc (The Indian Criminal Procedure Code). 21
Section 6 of the AFSPA provides then with absolute immunity for all atrocities committed under
the AFSPA. The armed forces personnel conduct themselves as being above the Law. When they
are tried in army courts, the people are not informed about the proceedings. The results of many
trials such as in the case where BSF and armed forces in Jammu and Kashmir were punished for

19 Article 21 of the Indian Constitution


20 Article 22 of the Indian Constitution
21 Section 45 of the Indian Criminal Procedure Code
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the abuses was not published stating that is would endanger the lives of the soldiers by the
NHRC.
3.2.3 The Army Act
The 1950 act was a revision of the 1911 Indian army act. The revision of this act was to bridge
the gap between the army and civil Laws as far as possible in the matter of punishments of
offences. Chapter 5 of the army act grants armed personnel privileges including immunity from
attachments and arrest for debt. Which gives the armed personnel even more freedom and makes
them to be irresponsible for their actions.
3.3 Analyzation of the Act and its impact in Jammu & Kashmir
India is popularly considered as a nation which gives due importance to the rights and liberties of
its citizens. It has absorbed the ideals of democracy in its truest sense. The Government is indeed
by the people, to the people and for the people. However, it is difficult to imagine that in a
country like ours, exists a law which makes a mockery of the basic human rights. There have
been nationwide debates on the validity of the Armed Forces (Special Powers) Act, popularly
known as AFSPA. Any commissioned officer, warrant officer, non-commissioned officer or any
other person of equivalent rank in the armed forces is granted the right to shoot to kill based on
mere suspicion that it is necessary to do so in order to maintain the public order in a disturbed
area.22
Now first of all we must understand the meaning of the term Disturbed Area. Disturbed Area
means an area which is in such a disturbed and dangerous condition that the use of armed forces
in aid of the civil power is necessary to prevent:
(a) activities involving terrorist acts directed towards overawing the Government as by law
established or striking terror in the people or any section of the people or alienating any section
of the people or adversely affecting the harmony amongst different sections of the people;
(b) Activities directed towards disclaiming, questioning or disrupting the sovereignty and
territorial integrity of India or bringing about cession of a part of the territory of India or
22 Maj Gen Nilendra Kumar, Terrorism and Security laws in India, P:236-237, available at
http://heinonline.org/HOL/Page?
handle=hein.journals/mllwr48&div=12&start_page=235&collection=journals&set_as_cursor=14&men_t
ab=srchresults> last accessed on 12/10/2015
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secession of a part of the territory of India from the Union or causing insult to the Indian
National Flag, the Indian National Anthem and the Constitution of India.23
Areas declared disturbed under the AFSPA over the past 60 years vary significantly according
to their conflict history, ethnic constituency and levels of militancy. However, all these areas
share a common experience of widespread human rights abuses during the imposition of the
AFSPA. The AFSPA has also had the opposite effect to that intended by the Indian Government
in each state where the AFSPA has been implemented and soldiers have been deployed, the
armed forces have become a symbol of oppression and an object of hate.24
3.5 Is It Illegal or Exaggerated as Draconian
The term draconian, which implies exceedingly harsh or very severe, normally refers to a legal
code or a set of government laws. Public sentiment and those swaying with it, be they NGOs,
human rights activists and the like often term the AFSPA as illegal and unconstitutional. Nothing
could be further from the truth.
The vires of the said Act in general and of Sections 3, 4 & 6 thereof in particular, came up for
scrutiny before a Constitutional Bench of the apex Court in a case titled Naga Peoples
Movement of Human Rights Vs the Union of India 25. The five-judge constitutional bench
elaborately dealt with the challenge to the legality of deployment of the Armed Forces in aid to
civil power. The Court unambiguously ruled that the AFSPA cannot be regarded as a colorable
legislation or a fraud on the Constitution. The Court opined that the conferring of powers vide
Section 4 of the AFSPA could not be held arbitrary or violative of Article 14, 19 or 21 of the
Constitution. In fact, having considered the role and circumstances under which the Armed
Forces have to operate, the honorable Court extended the scope of powers vested vide sections 4
and 6 of AFSPA so as to include, by implication, power to interrogate persons arrested. It also
allowed the Armed Forces to retain the weapons seize during operations instead of handing over
to the police authorities26.

23 Ibid
24 Supra Note 22
25 (1998) 2 SCC 109
26 | P a g e

The mere fact that the provisions of the AFSPA have to be invoked with regard to a particular
area ex-facie establishes that the law and order situation in the said area had degenerated to such
an extent that the State Government with the aid of the police at its disposal was unable to
maintain peace and tranquility. A natural corollary to the above would be that if the Armed
Forces, who are called upon to assist the State administration in restoring normalcy, have to
succeed in their task, they enjoy at least the similar powers, if not wider ones as the police does.
A perusal of the various powers available to the police authorities under the provisions of the
Criminal Penal Code vis-a-vis those available to the Armed Forces under the AFSPA would
reveal that the police authorities still enjoy more encompassing and wider powers relating to
arrest, search, seizure, summoning of witnesses and preventive detention than the powers
enjoyed by the Armed Forces.
The AFSPA is an enabling provision and Act passed by the Parliament. It assists the Armed
Forces in dealing with special situations. The Act provides protection to the soldiers who are
operating under difficult and sensitive circumstances. One of the most important tasks before the
Government is to maintain proper balance between the interest of the individual and those of the
democratic society. Individual freedom has to be balanced with the freedom of other individuals
and with reasonable demands of the community and the general public. It is the duty of the state
to harmonize the rights of the individual with the requirements of the community27.
The Central Government through Article 355 of the Constitution of India is duty bound to protect
every state not only against external aggression but also internal disturbances and to ensure that
every-state is governed in accordance with the provisions of the Indian Constitution28.
3.6 Repeal or Retain AFSPA
Should the Act be repealed based on the supposed normalcy in 2011? There is no doubt that
2011 has been a year sans massive protests; it has seen an increased influx of tourists and yatris
and by and large, the violence levels have been at an all-time low. But so was 2009 relatively
peaceful after the Amarnath Shrine Board Agitation in 2008. Similarly, just when normalcy
26 Supra Note 5
27 A.K.Sen, Law of Indian Constitution and Human Rights, Neha Publishers.
28 Ibid
27 | P a g e

appeared to be returning in 1999, Pakistan hit us with Kargil. Goes to show that one swallow
definitely does not make a summer29.
We ought to look at the other parameters that continue to indicate that conditions which led to the
imposition of the AFSPA and Disturbed Areas Act have still not diminished to a degree that we
lower our guard completely. Over 40 terrorist camps exist in Pakistan and PoK, with 600 to 700
terrorists in camps and launch pads that could be utilized for infiltration into J&K. People still
fear terrorist strikes both in urban and rural areas. The J&K police continue to be attacked
periodically and sentiments of secession and azaadi are relevant. The Kashmiri Pandits remain
refugees in their own state. Insult to the National Flag and National Anthem are witnessed
regularly. So, have the conditions and sentiments changed. This is not to suggest that the
situation is grave. Yes, there is a definite improvement on most counts over the years. But the
moot point remains. From the Indian Armys perspective, there is a strong case for retention of
the AFSPA. In Pakistans perception, the status of the state of J&K continues to remain disputed.
To ward off external as well as externally inspired internal threats, a large presence of troops is
required to defend the territory of the nation by securing the LoC. This defence can be organized
only by ensuring domination along the LOC by physical and justifiable use of force. Areas in
depth frequented by militants similarly need to be dominated, searched and neutralized. The
arteries feeding the far-flung areas also need to be kept sanitized for utilization by the security
forces and Government agencies. All this and more is only possible provided the AFSPA, which
provides the legal framework for the troops to perform their duties, remains operative and not
revoked. Repealing will result in severe limitations to the Army and its impact will be felt in a
variety of ways30.

Proactive operations will be severely affected under extant laws for aid to Civil Authority
since it has major limitations in this kind of an environment and will result in the
initiative being passed on to the militants.

29 Supra Note 14
30 Lt.Gen.Mukesh Sabarwal, Operational Importance of AFSPA, Indian Defense Review, available at <
http://www.indiandefencereview.com/the-armed-forces-special-powers-act-a-perspective/2/> Last
accessed on 13/10/2015
28 | P a g e

The Army will not have the powers to arrest or search any individual or premise

suspected to be indulging in or being used for anti-national activities.


The Armed Forces will not be able to use any force to diffuse a situation other than in self

defence.
Powers to destroy ammunition dumps and Improvised Explosive Devices (IEDs) will be

curbed.
Units will not be able to perform their duties in the prevailing environment without

proper legal cover. This would be detrimental to morale of the soldiers on the ground.
It would bolster the will of anti-nationals and provide an opportunity to tanzeems to fuel
militancy.

3.7 Present Scenario


AFSPA which is in force since a long time now, is on its peak in present scenario in regards to
controversies. As it cannot be ignored that this act brought peace in many areas and was very
helpful for a long time in all these disturbed areas of Jammu and Kashmir and maybe it will be of
same help in future but right now the conditions are a lot in bad condition and as the public
living there and suffering can only tell how their life has gone miserable by this act we cannot
ignore those facts as well. Public is totally against this act as it is interfering in their lives and not
only that there are many comments of AFSPA being in action because of political reasons and
some are saying that politic parties want threat and fear in minds of people so that they can rule
for longer period and for that military is the biggest help to them. In Jammu and Kashmir where
AFSPA are mainly in action and regulations there are a number of deaths, encounters, suicides
and other harms to the public against which the public is revolting and that we can study in the
following research31.
The AFSPA debate has been a long sparring bout conducted in the latter half of 2011. The J&K
Government and State Administration against the Army within the state and the Chief Minister of
J&K discussed the issue with the Army Chief, the National Security Advisor, the Home Minister,
the Raksha Mantri and the Prime Minister. The media, both print and electronic, had a field day
bringing defence analysts, political luminaries, experts on Kashmir, separatist leaders face to face
for debates with no possible conclusion. One issue on which there was consensus was that the
time was not ripe to repeal the AFSPA while the distrust quotient with Pakistan was still high
31 Raghavan, Srinath. AFSPA is not worth it. The Asian Age. Last Accessed on 12/10/2015
29 | P a g e

with no forward movement on talks with the separatists. Mainstream political parties have not
had any meaningful debate on the AFSPA and national security is too sensitive to pass judgment
to repeal, amend or partially revoke the Act on the basis of a public and media debate. The
solution probably lies in the Unified Command deliberations, wherein the Chief Minister as the
Chairman should iron out the system of implementation of the AFSPA with the Army
Commander and Security Advisors and appreciate the Armys perspective of national security32.
On the other part the public in the areas where AFSPA is in action are criticizing it and are totally
against the regulation. The main reason for such a criticism is their sufferings. If seen from inside
the area one can easily see how badly the civilians are being treated and not only this but the
worse thing is that they are in such a miserable condition not because of some terrorist activities
or foreign invasion but by the army of their own country. And another thing is that their
complaints and cries are not being heard over and no one is really caring about that and the
reasons for such a dealing are political as well as authoritical as government itself do not want to
end the powers given to the military in these areas as the military is saying that ending this power
will halt their try to keep piece in the area.33

32 Jain, Divya S.. THE ARMED FORCES SPECIAL FORCES ACT IS A NECESSITY IN THE
CURRENT SCENARIO: against the motion. Last Accessed on 12/10/2015
33 Ashiq, Peerzada. AFSPAs removal to impact operations, peace in Kashmir because of it: Army. Hindustan
Times Last Accessed on October 13, 2015.

30 | P a g e

31 | P a g e

PART-IV

CHAPTER IV AFSPA VS HUMAN RIGHTS


4.1 Introduction
32 | P a g e

India today stands at very crucial point to decide whether it will embrace fully the spirit of
accountability and transparency to progress towards a functional democracy or slide towards a
rigid militaristic state with impunity as a banner, negating its pious stance of upholding the
Gandhian philosophy of non-violence and Ahimsa. Human rights are universal and the Indian
Constitution enshrined the fundamental rights and directive principles to nurture the core values
of humane aspiration on which the Indian independence was fought for against the external
colonizers.
Indian state needs to be more accommodative and understanding in this new century where its
prestige as a major international player does not succumb to its own dubious play of trampling
over the rights of its citizens. The political problems must be dealt politically without bringing
army in direct confrontation with the civilian population. Unless India realizes the urge to solve
the issues of the much vexed Kashmir problem, these types of violations will continue and the
much controversial Indian army will have to face the criticism34.
Keeping in view the incidents of human rights (HR) violations by some personnel when AFSPA
is applicable, the Army, over the years, has taken several preventive measures. These include
setting up of human rights cells at Army, Command and Corps headquarters to monitor, seek
factual details and take follow up action on all HR related cases (received from any source) and
to maintain records. These Cells, after investigations, prepare a Detailed Investigation Reports
(investigation is conducted jointly with civil authorities sometimes) for submission to higher
headquarters and preparation of affidavits to the National Human Rights Commission35.
4.2 AFSPA and Human Rights: For and Against Archives
The legal immunity provided to these security personnel has had an opposite effect on the
common population of the state. The present Kashmir crisis is not between militants and the
forces, but has escalated to the present stage because of unarmed civilians being hit by statecontrolled bullets. The state police have also been engaged in these moves, which has led the
raise of death toll in the Valley. One has no objection to AFSPA, granted that it is adhered to

34 Supra Note 30
35 Ibid
33 | P a g e

strictly, is not abused and is not used by those not linked with army to target civilians
needlessly36.
Here, it may be pointed out that the army and police fall under two different departments. So it
needs to be scrutinized carefully, whether some communication error has also led the J&K police
assume that they also have the authority under AFSPA to shoot as and when they sense a risk.
Besides, one may draw attention to it be clearly laid out that the army officers are granted legal
immunity if and when they take action in keeping with the AFSPA dictates. In other words, they
are not above legal immunity if they abuse and/or violate AFSPA by taking action not permitted
by it.37
The atrocities towards the common people, particularly against women by the army personnel
started soon after the AFSPA Act of 1990.
An instance of the early 90s.
a remote village called Kunan Pashpora in Kashmir witnessed an all night terror raid on
women, where some 30 women of the village were raped. Kunan Pashpora has come to
symbolize sexual violence against Kashmiri women and therefore caught the attention of
National and International media. A two member womens team including Amiya Rao, a
senior and well respected civil rights activist, visited Kashmir and demanded an enquiry into
the rapes at Kunan Pashpora. The Press Council of India sent an enquiry team, headed by a
respected male journalist B.G Verghese who had a good record of supporting civil rights. Alas,
when the report was made public he exonerated the army, arguing that the allegations were
fabricated and motivated in order to defame the army. The nation and the army became
synonymous the version of the army was the version of the press and the sexual violence
against women counted for little.38
36 M.P.Tandon & Dr. V.K.Anand, International Law & Human Rights, Allahabad Law Agency, Pg-95
37 Suhrawardy, Nilofar. AFSPA and Kashmir Crisis. The Milli Gazette. 14 Oct, 2015. Also available at
<http://www.indiandefencereview.com/the-armed-forces-special-powers-act-a-perspective/2/> Last
accessed on 14/10/2015
38 Singh, Kumar Ujjwal., Human rights and peace: ideas, laws, institutions and movements, p66, Sage
Publications India Pvt. Ltd.
34 | P a g e

According to statistics made available as of July 2011, 1,485 cases of human rights violations
were reported in Kashmir Valley from 1990 to July 2011. Out of these, 1,439 cases (96.9 per
cent) were proved false. In 43 cases proved true, 96 personnel were punished. As punishment,
four officers were cashiered/awarded rigorous imprisonment (RI), 33 personnel dismissed from
service, 17 personnel reduced in ranks/awarded imprisonment in military custody, one person
forfeited seniority for promotion, and 14 personnel were awarded Severe Reprimand. It is
doubtful if any civil court would have acted faster or stricter on this issue39.
But the Armed Forces have taken due and there has also been a strong drive on continuous
training and briefing of troops employed in such operations to respect human rights and avoid
collateral damage. A Code of Conduct (appreciated by the Supreme Court) is issued to every
individual. The Rules of Engagement have been modified. Wherever possible, operations are
conducted jointly with the civil police and made accessible to the media. Preventing infiltration
and conducting only intelligence based joint operations, the Army in Kashmir Valley under Lt
Gen Ata Hasnain, has taken some extraordinary people-friendly initiatives. These include
reducing visibility of personnel and convoys on roads during the day, Jee Janab (cultural
sensitivity) and Awam aur Jawan, Aman Hai Mukam (the soldiers and populace want peace as
their objective) and the Kashmir Premier League matches to engage the youth40.
These initiatives have made substantial contribution in improving civil military relations and
ensuring peaceful summer. Notwithstanding the above mentioned civilized measures, there is
still a need for the Army to become more transparent on human rights violation cases and where
necessary, expedite sanction from the central government to prosecute personnel guilty of
deliberate human rights violations. That would be in the interest of Army discipline as well as for
creating confidence in public41.

39 General (Retd) V.P. Malik, Former Chief of Army Staff, Raging Debate on Armed Forces Special
Powers Act in J&K, SPs Guide Publications.
40 Ibid
41 Ibid
35 | P a g e

4.3 Allegations of Human Rights Violations


Section 7 of the AFSPA states, No prosecution, suit or other legal proceeding shall be instituted,
except with the previous sanction of the Central Government, against any person in respect of
anything done or purported to be done in exercise of the powers conferred by this Act.42
The general perception is that the Army has been shielding its soldiers even when they have
carried out excesses in violation of human rights. It is baselessly stated that The Army has
routinely been invoking the immunity clause to shield its men from being prosecuted in civil
courts.43
It would be worthwhile to look at the record of human rights violations raised against the Indian
Army and the action taken by the Army in this regard. The Indian Army attaches the highest
importance to upholding human rights in its counter terrorism operations which are conducted
using minimum force, avoiding collateral damage, acting in good faith and maintaining high
moral standards. After detailed investigation into the alleged human rights violation cases
involving Army personnel, only 54 cases out of 1,517 received since 1994 have been found to be
true, amounting to less than four per cent. Of the 129 persons who have been punished, there
were 38 officers, 12 JCOs and 79 soldiers. Punishments awarded are severe and exemplary
including dismissal from service with rigorous and even life imprisonment. Consistent efforts to
reduce human rights violations have been very successful. In J&K, there were 150 allegations
reported in 2002. These have progressively declined to 18 in 2010 and a couple in 2011. Where
violations are proved, action against the perpetrators is quick and transparent44.
Concurrent to speedy dispensation of justice, prompt action is initiated to provide succor and
solace to the aggrieved. However, there are many cases projected as human rights violations that
are pre-meditated and stem from vested interests to malign the security forces. Doubts have been
42 Armed Forces Special(Powers) Act, 1990, available at
<http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/Armedforces_J&K_Spl.powersact199
0.pdf> Last accessed on 15/10/2015
43 Muzamil Jaleel, Special Powers to Act and Evade, Indian Express of November 07, 2011, also
available at < http://indianexpress.com/article/news-archive/web/special-powers-to-act-and-evade/> Last
Accessed on 15/10/2015
44 Supra Note 15
36 | P a g e

raised that while punishments may have been awarded to over a hundred Army personnel, most
of these are minor in nature and that soldiers are generally let off lightly45.
It is for the information of such doubting that in over 50 of those cases, officers and men have
been dismissed from service with most having been given rigorous imprisonment for offences
such as rape, murder.
4.4. AFSPA: Politics, Military and Human Rights
On their part, government has often defended the act in that AFSPA is needed to counter
terrorism and maintain law and order but in reality the law has not been itself sufficiently
provided with checks and balances or any mechanism to ensure justice is delivered for human
rights violations by the armed forces. In such a scenario the civil populations in AFSPA areas are
often the ones at the receiving end with no hopes of justice. Even the implementation of the said
act under same circumstances in different areas has not been viewed as justly uniform.46
As the present condition of AFSPA is in a very bad condition full of controversies and the
movements being run against this act and the demand of a huge number of people to repeal the
act because it has made their lives miserable and in other sense alienated them as they cannot
feel it their own country as no countrys own army brutally kill the innocent or rape the women
of the country it is very difficult to say about the future of this act but right now the end to this
evil is nowhere to be seen mainly because of political complications and other safety
requirements the government need to fulfill before repealing this act all of a sudden. The debates
taking place in the whole country regarding the demands for AFSPA considerations are showing
no fruit yet and people living in these areas of Jammu and Kashmir are still in dark and in no
hope of getting their future in light as the government by them does not seems to be their own
now.47

45 Dr.U.Chandra, Human Rights, Allahabad Law Agency Publications, Pg: 23


46 Saadut, AFSPA: Between political rhetoric and reality, Speaking Mind. 30th October 2011. Available
at <http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html> last accessed on 17th
October 2015.
47 Ibid.
37 | P a g e

Seeing all this outcry by the public and in response to this in June 2010 the SHRC (State Human
Rights Commission) asked the State Government to take up the matter with the Central
Government, stating that some officers and troopers with vested interests were misusing AFSPA
(the Armed Forces Special Powers Act) for rewards and promotions. Chairperson of SHRC,
Justice (Retd) Bashir-ud-Din remarked in the garb of AFSPA, instances of killing civilians in
fake encounters and dubbing them as militants have come to fore in the past also.
This is a dangerous pattern which can have serious consequences besides intensifying alienation
among the common people against the political dispensation. Now some activists are trying to
work and make the conditions better although trying it to experiment first by removing the act
but not confirming its total removal. Chief Minister Omar Abdullah on October 21, 2011
announced lifting of AFSPA on experimental basis from areas where peace has returned in the
state. However, Abdullah, in an interview to a New Delhi based news channel, clarified that it
was not a decision but intent which was announced. The Act is not something that cannot be
imposed in an area. The way AFSPA is being rolled back can be again introduced if the
experiment fails.48
The HRW report mentions how tribal women in J&K are molested and raped by military
personnel. Which is rarely in the news, has witnessed gross violations of human rights due to the
AFSPA. Anthony Debbarma, human rights activist says, on police station jurisdiction areas
inhabited by the indigenous tribal population were declared disturbed. The army personnel
occupied schools and children were denied a proper ambience for education. The tribal women
feel threatened by the army camps in the heart of the villages.49
All these sufferings because of the military who is given extra power and to the people of their
own country to which they took the oath to serve. The question arises why not repeal the act
when such disasters are taking place? Why is the government doing nothing for betterment of life
of the people in these areas? Why such a delay in reacting?
48 Syed, Firdous. Why Army Officers want Kashmir Posting, available at
<http://www.indianmilitarynews.wordpress.com> Last accessed on 18 Oct 2015.
49 Rehman & Teresa, Armed Forces (Special Powers) Act, Tehelka, Vol 5, Issue 35, Available at <
http://archive.tehelka.com/story_main40.asp?filename=cr060908ArmedForces.asp> Last accessed on
17/10/2015
38 | P a g e

The first answer that comes to the mind of a critical citizen is that politics is interfering in all
these things. Political parties do not want to repeal this act or to react in any way because of
many political reasons and more over somehow to protect and save their power even at the cost
of life of the people. There is a lot of political motive in keeping this act in force which can be
seen as further.50
4.5 Observations:
Even a partial withdrawal of AFSPA, or the Armed Forces (Special Powers) Act, at this juncture
was likely to prove detrimental to the counter- terrorist campaign being conducted under the
aegis of the Unified Command headquarters in the state. Intelligence reports allude to the
presence of over 400 terrorists in the state, who are yet to be neutralized. The terror infrastructure
across the LoC is intact and has the potential to vitiate the security environment in the state. Any
let up at this stage, therefore, is likely to be exploited by terrorists and other inimical elements to
their advantage, it is to be noted that AFSPA was an enabling act which provided the requisite
legal safeguards for the carrying out of effective counter-terrorist operations. US troops are
pulling out of the Af-Pak region in 2014 and India fears that the development would lead to the
terrorists engaged there spreading to other parts of the region. On the terror situation in the strifetorn state, Singh said the scenario was under control and infiltration levels had been brought
down51.
The AFSPA may have been described as a special power. But those of us who have
commanded troops in such situations have always looked upon it as a legal protection to conduct
effective operations. On the flip side, whenever law and order situation improves in a disturbed
area and we have elected representatives governing the state, they find it difficult to continue
with this Act. The reasons are:

Democratic societies all over the world abhor large scale and extended deployment of
troops in their midst.

50 Langer & Avalok. To repeal or amend. What should we do with this Act? Tehelka. Available at
< http://www.tehelka.com/2011/10/to-repeal-or-amend-what-should-we-do-with-this-act/> Last accessed
on 18/10/2015
51 Manohar Pragyan, AFSPA is must in J&K if army has to operate, Indian Express Articles, Also
available at < http://indianexpress.com/article/india/india-others/afspa-is-a-must-if-army-has-to-operatein-jk-manohar-parrikar/> Last Accessed on 17-10-2015
39 | P a g e

Human rightists and the media over the years have dubbed the AFSPA as a draconian
power given to the military against the civilians. It has become a convenient tool for the
secessionist elements, and those in opposition, to embarrass the government and demand
withdrawal of troops.

Despite strict discipline and training, there are aberrations of human rights violations by
troops. These aberrations can be reduced but seldom eliminated in the kind of operational
duties which have to be performed.

We must realize that the army and paramilitary forces today are already overstretched and
overworked as a result of being constantly engaged in anti-militancy operations. For months and
years, they live away from the comfort of home in bunkers or makeshift tenements under
constant fear of being sniped at or blown up by landmines or grenades. Upon this, the
Government has given a long rope to the so called human rights leaders who find army a
convenient tool to forward their perverted activism as a consequence of which many a brilliant
army officer are subjected to senseless interrogations. The mushrooming of private TV channels
has further worsened the situation with media turning insensitive to an army persons hurt pride
and instead preferring to sensationalize the grief or loss of a slain militant.52
Every Act which the parliament or any other legislative body enacts has its pros and cons and
same goes for AFSPA also. For most of the population this Act is and will always remain a
draconian one while for few particularly those not under the ambit of this Act it has helped in
removing terrorism and insurgency from the war- torn states. I think that instead of triggering
debates and deliberations over whether AFSPA should be withdrawn from Jammu and Kashmir
we must look deep and see whether this Act has been strictly adhered to by the army personnel
and their officers or not. Strict action must be taken by the state agencies regarding any violation
or abuse of AFSPA Enquiries should be conducted against any of the personnel who indulges in
unjustified excesses or violates the Act.53

52 Ashiq, Peerzada. AFSPAs removal to impact operations, peace in Kashmir because of it:
Army. Hindustan Times November 03, 2011. Available at < http://www.hindustantimes.com/india/afspa-sremoval-to-impact-operations-peace-in-kashmir-because-of-it-army/story4ZKVa7KfrzVRKZEvOZMdPO.html> Last accessed on 16/10/2015
40 | P a g e

53 Raghavan, Srinath. AFSPA is not worth it. The Asian Age. Sep 23, 2010. Available at <
http://archive.asianage.com/columnists/afspa-not-worth-it-188> Last accessed on 17/10/2015
41 | P a g e

PART-V

CHAPTER-V SUGGESTIONS AND CONCLUSIONS


42 | P a g e

5.1. Conclusion
Thus I would like conclude by opining that there is no doubt that every Indian would like to see
the end of terrorism and militants violence in J&K. More so the security forces, who have lost
6,013 personnel since 1988 due to such violence in the State. This is possible only through a
synergetic effort of the political leadership, state administration and the security forces including
the army, on the ground. The synergetic effort has to be focused on public to restore its
confidence in the polity and administration to ensure that it denies support to militants and
enables their isolation. The militants will then either fall in line or get eliminated.
While it is desirable to give more and more political space to the State leadership, the AFSPA is
necessary till we are fully confident of checking infiltration from across the border and the overt
and covert support to the militancy in the State is reduced considerably. The need for legal cover
to soldiers conducting counter militancy operations is unquestionable. Due to changed
circumstances, it is essential to review the conduct of operations in the areas suggested for
revocation of the AFSPA.
My suggestions would as follows:
(a) Further reduce army footprints in all civil areas. Let the civil police take over operations in
the areas recommended by the State Chief Minister and call for military only when the operation
is beyond its capability
(b) Military convoys passing through these areas should continue to be protected
(c) The Army should be more transparent in its dealing with human rights aberrations, and
(d) The Central Government should explain reasons whenever permission to prosecute a person
accused in human rights violations is not given.
(e) I also suggest that some of the harsh provisions enshrined in this Act must be amended. These
suggestions if implemented and recognized can be of great help for both the army and the masses
in the longer run.

I believe that it is incorrect and unfair on the part of political authorities to put pressure on the
Army through social and regular media. This is not in the interest of objective decision making
43 | P a g e

or cordial civil military relations. Political leaders in disturbed areas need to assess the security
situation and resolve such issues through a consensus in Unified Command instead of making
sensitive security issues a public agenda.

BIBLIOGRAPHY
Books Referred

Muzamil Jaleel for the Indian Express. March 30, 2015. Explained: AFSPA-Disturbed

Areas debate in J&K.


A.K.Sen, Law of Indian Constitution and Human Rights, Neha Publishers.
Articles by Raghavan, Srinath. AFSPA is not worth it. The Asian Age.

44 | P a g e

Article by Jain, Divya S.. THE ARMED FORCES SPECIAL FORCES ACT IS A

NECESSITY IN THE CURRENT SCENARIO: against the motion.


Article by Ashiq, Peerzada. AFSPAs removal to impact operations, peace in Kashmir

because of it: Army. Hindustan Times.


M.P.Tandon & Dr. V.K.Anand, International Law & Human Rights, Allahabad Law

Agency.
Singh, Kumar Ujjwal., Human rights and peace: ideas, laws, institutions and movements,

Sage Publications India Pvt. Ltd.


Dr.U.Chandra, Human Rights, Allahabad Law Agency Publications.
Lt Gen Mukesh Sabharwal, Operational Importance of AFSPA, Indian Defence Review.

Web Sources Referred


http://scroll.in/article/738707/the-emergency-that-continues-25-years-of-afspa-in-jammu

kashmir.
General (Retd) V.P.Malik , Chief of Army Staff (2013) Raging Debate on Armed Forces
Special Powers Act in J&K, AFSPA, Human Rights and the army: SPs decades of
boundless excellence since 1984: SPs Military, Aerospace and Internal Security: SPs

Publications.
http://www.mha.nic.in/sites/upload_files/mha/files/pdf/Armedforces%20_J&K_

%20Splpowersact1990.pdf.
Lt Gen Harwant Singh, AFSPA is Need of Hour, Indian Defence Review.
http://www.indiandefencereview.com/search/?idr_search=idr&search=afspa+in+j

%26k&searchsubmit=Search
Ravi Krishna Khajuria, Tribune News Services, Jammu & Kashmir
http://www.tribuneindia.com/news/jammu-kashmir/community/afspa-has-helped-forces-

in-combating-terrorism-army/102035.html.
http://www.indiandefencereview.com/afspa-in-jk-selective-withdrawal-may-be-harmful/.
Lt Gen Balwant Rai, AFSPA removal may put J&K peace at stake, Indian military

Review, http://www.imrmedia.in/imr/afspa.php
South Asia Terrorism Portal Database,

http://www.satp.org/satporgtp/countries/india/states/jandk/
A.N.Sen, concluding observations of the Human Rights Committee: India, UN Doc.
CCPR/C/79/Add. 81. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En

45 | P a g e

Maj Gen Nilendra Kumar, Terrorism and Security laws in India, P:236-237,

http://heinonline.org/HOL/Page?handle=hein.journals/.
Lt.Gen.Mukesh Sabarwal, Operational Importance of AFSPA, Indian Defense Review,
http://www.indiandefencereview.com/the-armed-forces-special-powers-act-a-

perspective/2/.
Suhrawardy, Nilofar. AFSPA and Kashmir Crisis. The Milli Gazette. 14 Oct, 2015.
http://www.indiandefencereview.com/the-armed-forces-special-powers-act-a-

perspective/2/.
General (Retd) V.P. Malik, Former Chief of Army Staff, Raging Debate on Armed Forces

Special Powers Act in J&K, SPs Guide Publications.


Armed Forces Special(Powers) Act, 1990,
http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/Armedforces_J&K_Spl

.powersact1990.pdf.
Muzamil Jaleel, Special Powers to Act and Evade, Indian Express of November 07, 2011,

http://indianexpress.com/article/news-archive/web/special-powers-to-act-and-evade/.
Saadut, AFSPA: Between political rhetoric and reality, Speaking Mind. 30th October

2011. http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html.
Syed, Firdous. Why Army Officers want Kashmir Posting

http://www.indianmilitarynews.wordpress.com.
Rehman & Teresa, Armed Forces (Special Powers) Act, Tehelka, Vol 5, Issue 35

http://archive.tehelka.com/story_main40.asp?filename=cr060908ArmedForces.asp
Langer & Avalok. To repeal or amend. What should we do with this Act? Tehelka.

http://www.tehelka.com/2011/10/to-repeal-or-amend-what-should-we-do-with-this-act.
Manohar Pragyan, AFSPA is must in J&K if army has to operate, Indian Express Articles,
http://indianexpress.com/article/india/india-others/afspa-is-a-must-if-army-has-to-

operate-in-jk-manohar-parrikar/.
Ashiq, Peerzada. AFSPAs removal to impact operations, peace in Kashmir because of it:
Army. Hindustan Times . http://www.hindustantimes.com/india/afspa-s-removal-toimpact-operations-peace-in-kashmir-because-of-it

army/story4ZKVa7KfrzVRKZEvOZMdPO.html
Raghavan, Srinath. AFSPA is not worth it. The Asian Age..
http://archive.asianage.com/columnists/afspa-not-worth-it-188.

46 | P a g e

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