-:Project Report on:-

Armed Forces Special Powers Act

A Critical Appraisal

Submitted to

Dr. Avinash Samal

(Assistant Professor)

Submitted by

Ekta Chandrakar
B. A. LL. B. (Hons.) Student
Semester – VI, Section – C, Roll No. 62

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)
 DECLARATION

I, EKTA CHANDRAKAR hereby declare that the project work entitled “Armed Forces

Special Powers Act : A Critical Appraisal” submitted to “Hidayatullah National Law

University”, is a record of original work done by me under the guidance of Dr. Avinash

Samal.

Ekta Chandrakar

th
Sem 6

ii
 ACKNOWLEDGEMENTS

I feel highly elated to get to work on the topic “ Armed Forces Special Powers Act : A
Critical Appraisal”. The practical realization of this project has obligated the assistance of
many persons. I express my deepest regard and gratitude for Dr. Avinash Samal, faculty of
Political Science. His consistent supervision, constant inspiration and invaluable guidance have
been an immense help in understanding and carrying out the nuances of this project report.

I would also like extend my hand of gratitude towards the friends and family, without whose
support and encouragement this project would not have been a reality.

I take this opportunity to thank the university, and the Honorable Vice Chancellor for providing
extensive database resources in the library and through Internet.

For any sort of errors that might have crept in, it is deeply regretted. I shall be grateful if further
comments and suggestions are put forth regarding improvisation of the provisions.

Ekta Chandrakar

th rd
Semester- 6 , Year- 3

Section- C, Roll No.- 62

 TABLE OF CONTENTS

Declaration……………………………………………………………………………..ii

Acknowledgements…………………………………………………………………….iii

1 . Introduction……………………………………………………………………………1

2 . Scope and Objective of study………………………………………………………….6

3 . Legal Analysis………………………………………………………………………….7

4 . AFSPA in North-East India…..……………………………………………………….13

5 . Importance of AFSPA ………………………………………………………………...19

6 . Present Scenario of AFSPA……………………………….…………………………..20

7 . Conclusion……………………………………………………………………………...24
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1. INTRODUCTION

1.1 HISTORICAL BACKGROUND

At the beginning of the century, the inhabitants of the Naga Hills, which extend across the Indo-
Burmese border, came together under the single banner of Naga National Council(NNC),
aspiring for a common homeland and self-governance. The Naga leaders were adamantly against
Indian rule over their people once the British pulled out of the region. Under the Hydari
Agreement signed between NNC and British administration, Nagaland was granted protected
status for ten years, after which the Nagas would decide whether they should stay in the Union or
not. However, shortly after the British withdrew, independent India proclaimed the Naga
Territory as part and parcel of the new Republic. The NNC 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
1
volatile. In order to suppress the movement, the central govt. introduced AFSPA in 1990.

1.2 MEANING OF AFSPA

The Armed Forces Special Powers Act (AFSPA) is an act empowering armed forces to deal
effectively in disturbed areas. Any area which is declared ‘’disturbed’’ under disturbed areas act
enables armed forces to resort to the provisions of AFSPA. The choice of declaring any area as

1 www.studentsappeal.com
 Page|2

‘disturbed’ vests both with state and central government. After an area comes under the ambit of
AFSPA, any commissioned officer, warrant officer, non-commissioned officer or another person
of equivalent rank can use force for a variety of reasons while still being immune to the
prosecution. The act was passed on 11 September 1958 by the parliament of India to provide
special legal security to the armed forces carrying out operations in the troubled areas of
Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland, Tripura (seven sisters).
However, in 1990 the act was extended to the state of Jammu and Kashmir to confront the rising
insurgency in the area. In Manipur, despite opposition from the Central government, state
government withdrew the Act in some parts in August, 2004.
After the implementation of AFSPA, there was a continuous debate whether it is needed by the
Indian Army or not. Although it was withdrew in Manipur, but some people were in favour of the
act.

1.3 NEED OF AFSPA FOR THE ARMED FORCES

There is no gain saying 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 country’s 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 essential.

The absence of such a legal statue would adversely effect the organizational flexibility of the
security of state. This would render the security forces incapable of fulfilling there 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 exhausted.
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1.4 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
annulment of act could prove disastrous at the central and the state government levels. There are
three issues on this :
‘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
2
redress of local grievances .
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. This commission was known as JEEVAN
REDDY COMMISSION.

1.5 JEEVAN REDDY COMMISSION AND ITS RECOMMENDATIONS.

In 2004, in the wake of intense agitation that was launched by several civil society groups
following the death of Manoram Devi, while in the custody of the Assam Rifles and the
indefinite fast undertaken by Irom Chanu Sharmila, the central government accordingly set up a
five-member committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of
the Supreme Court. The 147-page report recommends, "The Armed Forces (Special Powers)
Act, 1958, should be repealed." During the course of its work, the committee members met
several individuals, organisations, parties, institutions and NGOs, which resulted in the report
stating that "the Act, for whatever reason, has become a symbol of oppression, an object of hate
and an instrument of discrimination and high handedness." The report clearly stated that "It is

2 pao.net/epSubPageExtractor.asp?src=manipur.History_of_Manipur.AFSPA-A_Historical_Perspective.AFSPA-
A_Historical_Perspective_1
 Page|4

highly desirable and advisable to repeal the Act altogether, without of course, losing sight of the
overwhelming desire of an overwhelming majority of the [North East] region that the Army
should remain (though the Act should go)."But activists say the Reddy panel despite its
recommendation for the 'repeal of the Act' has nothing substantial for the people. The report
recommends the incorporation of AFSPA in the Unlawful Activities (Prevention) Act, 1967,
which will be operable all over India .The panel gave its report in June 2005 but the Manmohan
Singh government has neither officially accepted nor rejected its findings. Reasons for this are
many. With rapid rise in terrorism throughout the country in the past couple of months coupled
with terrorist violence in many places, especially in the Northeast, the government of India
cannot take a hasty decision on the removal of this Act, as it could spell several dangers to the
3
strategic security and territorial integrity of the country .

1.6 IS AFSPA A BLOT ON THE DEMOCRATIC FABRIC OF INDIA?

'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. However even after more than 60 years of its liberation from the clutches of colonial
imperialist powers, India has failed to germinate the basic fundamental human rights such as the
`right to life’ for all its citizens as guaranteed under Article 21 of its Constitution, creating a
serious democratic deficit especially in its governance in the Northeast and other indigenous/
tribal peoples areas and minority nationalities/communities under its dominion. India as a
member of UN Human Rights Council must make its position clear by demonstrating its sincere
commitment to the various international obligations it has been bound with due to its
commitment to uphold human rights principles, as ratified previously to bolster its democratic
image. However, impunity, rape, wanton violence, environmental destruction, cultural genocide,
developmental aggression, forceful resource exploitation, systematic planned transfer of
populations to drown or marginalize indigenous peoples to alienate their land and territories,

3 www.thehistorywriters.net
 Page|5

distortion of history and disempowerment through alien legal system, forced labour, torture,
criminalizing indigenous institutions, militarization, racism, stigmatization, socio-economic
deprivation, etc will be perpetuated again if the relationship between Indian state(s) and the
indigenous peoples or submerged minority nationalities, are shaped by distrust and fear instead
of trust, well being and hope. Shall we allow the future to be dominated by violent paradigm
such as the continuing use of AFSPA? It is time India gives space for Democracy and its
cherished values to reemerge instead of suppressing the genuine democratic voice of “We the
people” which continues to remain excluded under the tyrannous rule. India must today prove
that it seriously subscribe to the democratic ideals and upholds universal human rights principles
and practices. `India shining’ will emerge when India authentically makes its bold move to fully
embrace democracy and dismantle the violent structures on which it has relied to govern the
ungovernable zones and to promote abnormal dispensation as normal credence of democracy.
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 realises the urge to solve
the issues of north eastern states an the much vexed Kashmir problem, these types of violations
will continue and the much controversial Indian army will have to face the criticism.
 Page|6

2. SCOPE AND OBJECTIVES

2.1 Objective of the study:

The basic objective behind this project report “ Armed Forces Special Powers Act : A Critical
Appraisal” is to critically analyze what is the meaning, need, importance, effects and the
consequences of what will happen if AFSPA is diluted.

2.2 Scope of the Study:

The scope of the study is very wide as we are dealing to understand the legal provisions of this
act and analyse its legal importance in the society. This project report basically deals with its
position and role of importance in society.

2.3 Research Methodology:

The research conducted has been supplemented by secondary sources. It has been complimented
by the use of books and articles. The methodology adopted has tried to incubate objective results,
however, subjectivity has been respected.

2.4 Organisation of the study:

The study/report has been organized into five sections. The first section deals with the
introduction of the problem followed by objectives and methodology adopted for carrying out
the study. The third section deals with the legal analysis. The fourth and fifth section deals with
importance and its present scenario. The final section deals with the concluding observations.
 Page|7

3. LEGAL ANALYSIS

The human rights obligations analysed in the present report concern, 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 (hereinafter “the Covenant” or “ICCPR”).
The Covenant, 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
4
security, fair-trial rights, the right to privacy, and the right to freedom of assembly .

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 Northeast 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 North-eastern states 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 secession.

This reasoning instituted in the northeast due to the AFSPA gave more reasons to the north-
5
eastern people to want to withdraw from the state of India .

4 Concluding observations of the Human Rights Committee: India, UN Doc. CCPR/C/79/Add. 81, 8 April
1997, at para. 18

5 http://www.gomanipur.com/your-story/item/369-armed-forces-special-powers-act-1958 5 November, 2011.

 Page|8

3.1 In accordance to Indian Law

On 27 November 1997 the Supreme Court of India rendered its judgment in Naga People’s
6
Movement for Human Rights v. Union of India . In this case the validity of the Act was
challenged by means of a writ petition before the Supreme Court of India.
The petitioner alleged that the Act had violated constitutional provisions that govern the
procedure for issuing proclamations of emergency, and upset the balance between the military
and civilian and the union and state authorities. The court rejected those contentions. It found
that the parliament had been competent to enact the Act and ruled that its various sections were
compatible with the pertinent provisions of the Indian constitution. In particular, the court held
that the application of the Act should not be equated with the proclamation of a state of
emergency, which led to it finding that the constitutional provisions governing such
proclamations had not been breached. The court further emphasised that the military forces had
been deployed in the disturbed areas to assist the civilian authorities. As these authorities
continued to function even after the military’s deployment, the court held that the constitutional
balance between the competencies of the military and the civilian authorities had not been upset.
Equally, the court found no violation of the constitutional balance of competencies of the union
and state authorities. What the court did not address was the compatibility of the Act with India’s
obligations under the ICCPR or other international obligations. This is notwithstanding the
general rule of Indian constitutional law, confirmed by the Supreme Court in another case
decided in 1997, that the courts must have regard to international conventions and norms when
7
interpreting domestic statutes .
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 effect.
8
The judiciary should repeal the AFSPA as it is unconditional and end army rule in the northeast .

6 1998 AIR 431

7 Vishaka et al. v. State of Rajasthan et al., 1997 AIR 3011

8 http://ejp.icj.org/IMG/Babloo_Loitongbam.pdf
 Page|9

3.1.1 The Right to life

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or her
9
personal liberty except according to procedure established by law ." Section 4(a) of the AFSPA
which grants armed personnel to shoot and kill. This is clearly violating article 21 of our
Constitution.

3.1.2 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
10
detained in custody beyond the said period without the authority of a magistrate."
These two sections of article 22 of the IC can be used to safeguard the people arrested under the
AFSPA.

3.1.3 Military’s immunity/lack of remedies

9 Article 21 of the Indian Constitution

10 Article 22 of the Indian Constitution

 P a g e | 10

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
11
Code) . Section 6 of the AFSPA provides then with absolute immunity for all atrocities
12
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 the abuses was not published stating that is would endanger the lives
of the soldiers by the NHRC.

3.1.4 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
13
them to be irresponsible for their actions .

3.2 In accordance to International Law:

The AFSPA is not justified under any relevant International human rights and humanitarian law
standards. The AFSPA also violates the Universal Declaration of Human Rights (the "UDHR"),
the International Covenant on Civil and Political Rights (the "ICCPR"), the Convention Against
Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for
Protection of All Persons Under any form of Detention, and the UN Principles on Effective
14
Prevention and Investigation of Extra- legal and summary executions .

11 Section 45 of the Indian Criminal Procedure Code

12 Section 6 of the AFSPA

13 http://www.vijbooks.com/uploads/images/products/pdf/795532090L1Mil%20Law_Sample%20For
%20Web.pdf,
5 November, 2011

14http://www.mightylaws.in/689/afspa-mockery-human-rights, 5 November, 2011

 P a g e | 11

3.2.1 International covenant on civil and political rights(ICCPR):

India signed the ICCPR in the year 1978. In time of public emergency, the ICCPR foresees that
some rights may have to be suspended.
In an operation Bluebird, the militants also forced the villagers of Oinam to work them and
provided them with no compensation. They were forced to carry the army’s rations and heavy
15
artilleries. Thisviolates article 8 (3) of the ICCPR which prohibits forced labour .

3.2.2 International customary law:

the Un code of conduct for law enforcement officials, the UN Body of principles for protection
of all persons under any form of detention and the UN principles on effective prevention and
Investigation of Extra-legal and summary executions all form part of international customary law
because they were passed by UN General Assembly resolutions. They lend further strength to the
16
conclusion that the AFSPA violates basic human rights standards.

3.2.3 International humanitarian law:

The four Geneva Conventions of 1949 along with the two optional protocols, constitute the body
of international humanitarian law. These provisions are suited to human rights protection in times
of armed conflict. Under these conventions the International Committee of the Red Cross (ICRC)
is given access to all international conflicts. In non-international armed conflicts, the ICRC can
17
only offer its services .

The ICRC's mandate in the context of non-international armed struggle is based on Protocol II to
the Geneva Conventions. However, India has not signed either protocol to the Geneva

15 Article 8 of the International Convent on Civil and Political Rights

16 http://legislationline.org/topics/organisation/2/topic/12, 5 November, 2011

17 http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5,

5 November, 2011.
 P a g e | 12

Conventions. Nevertheless, the ICRC can offer its services in such a conflict based on Article 3,
paragraph 2, common to the four Geneva Conventions of 1949 ("an impartial humanitarian body,
such as the International Committee of the Red Cross, may offer its services to the Parties to the
conflict"). When the ICRC offers its services in such a situation, a state does not have to accept
them, or consider it an interference in its internal affairs. However, "in situations of internal
18
disturbance, the rules of international humanitarian law can only be invoked by analogy ."

18 http://www.icrc.org/eng/assets/files/other/irrc_863_clapham.pdf, 5 November, 2011

 P a g e | 13

4. AFSPA IN NORTH-EAST INDIA

The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the more cruel legislations
that the Indian Parliament has passed in its 45 years of Parliamentary history. Under this Act, all
security forces are given unrestricted and unaccounted power to carry out their operations, once
an area is declared disturbed. Even a non-commissioned officer 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".
The AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of
"aiding civil power." It was first applied to the North Eastern states of Assam and Manipur and
was amended in 1972 to extend to all the seven states in the north- eastern region of India. The
enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture,
rape, and looting by security personnel. This legislation is sought to be justified by the
Government of India, on the plea that it is required to stop the North East states from seceding
from the Indian Union. There is a strong movement for self-determination which precedes the
formation of the Indian Union.

4.1 AFSPA in Manipur:

In Manipur, the Act has been a heart concern about human right violation in the region. Its
continued application has lead to numerous protests, notably the longstanding hunger strike by
Ms. Irom Chanu Sharmila. The “AFSP Act” focuses on Manipur since this is one of the states of
north- eastern India with the longest history of military abusing its power under the Act and with
a vibrant civil society indefatigably denouncing those violations.
The judgement against the controversial Armed Forces Special Act, the Guwahati High Court on
st
Aug 31 this year has authorised the state of Manipur to act on the report of the one man
commission in the alleged rape and killing of Manorama Devi by the Armed Force in 2004.
Sixed years after Manipur erupted with the defining image of anger against killing and resistance
to the armed force Act this judgement should be crucial in understanding this act is meant to aid
civil power and not to substitute it.
 P a g e | 14

The AFSP Act grants extra ordinary powers to the military, including the power to detain
19
persons, used of lethal force and enter and search premises without warrant. The Act grants the
20
following power to military officers, including any commissioned office and other of
equivalent in the military forces.
The provision of the Act have been reportedly continued to be routinely applied in practice. The
overall practical effect of the Act has been the Defacto militarisation of Manipur. Even the
proponents of the Act have acknowledged the general administration in Manipur is wholly
21
dependent on the security forces .
Action taken pursuant to the Act reportedly led to 260 killings in 2009 alone. The military also
widely used its power to detain persons. As held in the number of judgement, those arrested
pursuant to the Act remained in the military custody without being brought before judge for a
prolonged period of time. Several cases court found that person who has been arrested by
military under the Act disappeared subsequently, which suggest that they have become victims
of enforced disappearances.

4.2 AFSPA in Nagaland

The inhabitants of the Naga Hills, which extended across the Indo-Burmese border, came
together under the single banner of Naga National Council (NNC), aspiring for common
homeland and self-governance. In 1929, the NNC petition the Simon Commission, the Nagas
Leaders were against the Indian rule over the people since India got independence. Mahatma
Gandhi publicly announced that the Nagas have right to be independent as he believe in non-
violence.
Under the Hydari Agreement signed between NNC and British Administration, Nagaland was
granted protection status for ten years, after which Nagas would decide whether they should stay
Union or not. However shortly after the British withdrew, independent India proclaimed the
Naga territory as part of India Republic.

19 Section 4 of the AFSPA Act

20 Section 4 (a) of the AFSPA Act

21 A Kamboj Manipuri and Armed Forces (Special Power) Act 1958, in 28 strategic analysis (2004),at
618
 P a g e | 15

The NNC proclaimed Nagaland’s independence. In relation, Indian authorities arrested the Nagas
Leaders. An armed struggled ensued and there were large causalities on the other side. The
Armed Force Special Power Act is the product of this tension.
In 1975, some Nagas leaders held talk with the Goverment of India which result in what is
known as the Shillong Accord. The Nagas Leaders who did not agree with the Shillong Accord
formed the National Socialist Council of Nagaland (NSCN) and continued to fight for what they
call “naga sovereignty.”

4.3 AFSPA in Mizoram

In the Lushai hills in early sixties a famine broke out. A relief team cried out for help from the
Government of India. The relief team organised themselves into Mizo National Front (MNF) and
called for armed struggled “to liberate Mizoram from Colonialism.” In Feb. 1996 armed militant
group captured the town of Aizawl and took possession on all Government Offices. It took about
one week to recapture the town. The Army responded viciously with air raids. This is the only
place where the Indian Security Force bombed its owned civilians.
The Armed Forces compelled people to leave their homes and dumped them on the road sides to
set up new villages, so that the armed forces could be able to control them better. In 1986, the
Mizo Accord was signed between the MNF and the Government of India. The MNF agreed to
work with the Indian Constitution and to renounce violence.
The Government of India primary interested in the North-East was strategic and so was it
response to problems. A series of repressive laws were passed by the Government of India in
order to deal with the uprising.
However, the AFSP Act is essentially an emergency legislation and therefore, by definition, its,
temporal scope of application should be limited and clearly defined. The prolonged application
of emergency legislation sustains, reinforces or even creates the exceptional state that may justify
emergencies, and has therefore become the cause rather than the effect of the prevailing situation.
Unsurprisingly, the Act, that is the most visible legal manifestation of this undeclared state of
emergency, has been repeatedly condemned by various UN treaty bodies.
On 27 November 1997 the Supreme Court of India rendered its judgment in Naga People’s
Movement for Human Rights v. Union of India. In this case the validity of the Act was
challenged by means of a writ petition before the Supreme Court of India. The petitioner alleged
that the Act had violated constitutional provisions that govern the procedure for issuing
proclamations of emergency, and upset the balance between the military and civilian and the
Union and State authorities. The Court rejected those contentions. It found that the Parliament
 P a g e | 16

had been competent to enact the Act and ruled that its various sections were compatible with the
pertinent provisions of the Indian Constitution. In particular, the Court held that the application
of the Act should not be equated with the proclamation of a state of emergency, which led to it
finding that the constitutional provisions governing such proclamations had not been breached.
The Court further emphasized that the military forces had been deployed in the disturbed areas to
assist the civilian authorities. As these authorities continued to function even after the military
deployment, the Court held that the constitutional balance between the competencies of the
military and the civilian authorities had not been upset. Equally, the Court found no violation of
the constitutional balance of competencies of the Union and State authorities. What the Court did
not address was the compatibility of the Act with India’s obligations under the ICCPR or other
international obligations. This is notwithstanding the general rule of Indian constitutional law,
22
confirmed by the Supreme Court in another case decided in 1997 , that the courts must have
regard to international conventions and norms when interpreting domestic statutes.

The position of the Supreme Court of India carries immense persuasive weight while
interpreting the constitutional vires of the Act. One could argue that the main points of discussion
concerning the constitutionality of the Act in Naga People's Movement for Human Rights
revolved around the procedures followed during the enactment and the implication of the Act in
the centre-state relations.

The AFSP Act's central provisions, including the blanket authorizations to use lethal force, arrest
and enter and search without any additional warrant or pre-condition, coupled with the all
embracing immunity provision that indiscriminately covers all military officers effectively
providing them with carte blanche to act as they see fit, are incompatible with India's
international obligations under the ICCPR, namely its articles 2 (3), 6, 7, 9, 17, and 21. This
finding is borne out by concerns over the Act's application in Manipur and other States of north-
eastern India, which has been characterized by a number of credible allegations of extrajudicial
killings, torture, ill-treatment, enforced disappearances and arbitrary detention in a climate of
complete impunity. There are no reported cases of any military officers involved having been
held accountable.

22 Vishaka et al. v. State of Rajasthan., 1997 AIR 3011, Naga People's Movement case was decided by the same
court in November, both in 1997
 P a g e | 17

India has not availed itself of the right to derogate from the ICCPR pursuant to article4 with the
effect that the ICCPR is fully applicable in Manipur. However, the AFSP Act is essentially an
emergency legislation and therefore, by definition, its temporal scope of application should be
limited and clearly defined. The prolonged application of emergency legislation sustains,
reinforces or even creates the exceptional state that may justify emergencies, and has therefore
become the cause rather than the effect of the prevailing situation. Unsurprisingly, the Act, that is
the most visible legal manifestation of this undeclared state of emergency, has been repeatedly
23
condemned by various UN treaty bodies.

The extraordinary legislative measures which were originally conceived of as being of an

exceptional and temporary nature but were subsequently left to apply for an unlimited period of
time not only undermine internationally recognised human rights But also erode the mutual
confidence between the authorities and society and may contribute to the delegitimation of the
state as a whole.

4.1 Effect and Repercussions of AFSPA in the states of J&K and Manipur

In the Rann of Kutch, the sighting of a military jonga brings kids on the road, waving, laughing,
and chasing the vehicle. Others salute the jeep as it passes. The same is likely to happen in
Jammu. But in Kashmir and most parts of the Northeast, young boys and girls take aim with
imaginary guns, shooting as a convoy passes it is the same army, the same soldiers, but the stark
difference in their role creates the duality. Along the western border, the Indian Army stands
guard against an external enemy. But in Kashmir and the Northeast, the army, performing a
24
policing role, has fallen from grace .
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, 1958,

23 http://www.article2.org/mainfile.php/1003/406/

24 Langer ,Avalok. “To repeal or amend. What should we do with this Act?”Tehelka
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popularly known as AFSPA. First introduced in the states of Arunachal Pradesh, Assam,
Manipur, Meghalaya, Mizoram, Nagaland and Tripura, the act was later extended to Jammu and
Kashmir in July 1990. It is a draconian law which gives unbridled powers to the armed forces.
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
25
that it is necessary to do so in order to “maintain the public order” in a “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
secession of a part of the territory of India from the Union or causing insult to the Indian
26
National Flag, the Indian National Anthem and the Constitution of India .

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
27
armed forces have become a symbol of oppression and an object of hate .

25 http:// www.mightylaws.in

26 http://www.unhcr.org/refworld/docid/3ae6b52a14.html

27 Human Rights Watch. “ getting away with murder”

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5. Importance of AFSPA
AFSPA, however draconian it may sound has been of great help in certain aspects. We should not
forget that it is because of the efforts of army and armed forces that terrorism and insurgency
related activities in Jammu and Kashmir and North Eastern states has been reduced considerably.
It has helped the army to eliminate those dreaded terrorists who used to operate within the
masses through the help of their trusted ‘informers’.
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 T V channels
has further worsened the situation with media turning insensitive to an army person’s hurt pride
28
and instead preferring to sensationalize the “grief” or “loss” of a slain militant .
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
and other North Eastern States, 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. I also suggest that
some of the harsh provisions enshrined in this Act must be amended.

28 Singh, Jitender. “ Please spare the Army”. Daily Excelsior

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6. Present Scenario of AFSPA

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 North-East as well as 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 North-
East India as well as 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.

6.1 Public Crisis and Response:

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.
The crisis in Kashmir has yet again turned the spotlight on the Armed Forces Special Powers Act
(AFSPA). The act has elicited much public criticism in the states where it has been invoked and
29
employed.
The public outcry against the AFSPA is fuelled by instances where the armed forces have
misused the powers granted to them: custodial deaths and fake encounter killings, for instance.

29 Raghavan, Srinath. “AFSPA is not worth it”. The Asian Age. Sep 23, 2010
 P a g e | 21

There are good reasons to believe that in the prevailing situation the act does provide the
30
requisite latitude for such transgressions to occur.
Public has suffered a lot more than they benefitted of this act till now although the future might
be some changed as protests and movements are being run. But in public also the major section
that suffered the most was women and children, mainly female children. The sufferings of
women as well as their protests and the movements by them are discussed as follows.

6.2 Women Sufferings and Reactions:

AFSPA an act implemented for the welfare of public, for the safety of citizens of our country and
for the protection of our women and young generation turned itself got twisted and changed itself
completely with time, interference, political reasons, privileges, evil of human mind and most
importantly because of the tremendous power given to military of which wrong use was taken
up. Here also not forgetting the real protection of women this act provided in troubled times we
cannot also go blind to the negative face of this power given to military. Women have faced
troubles and not only this many lost their lives by encounters and many committed suicides after
being brutally tortured and raped by these military men.
In response to all these tortures the women of these areas when interviewed by the media
revealed this publically. ‘The act was supposed to deal with the “disturbed areas”. It was
supposed to combat ‘militancy’ and ’terrorism’. However, it’s AFSPA which is, in reality, the
sole cause of terrorism. The AFSPA has led to extra-judicial killings, illegal detentions, fake
encounters, rapes and torture of the civilian population. According to official records, since 1980,
more than 25,000 civilians have been killed. The condition of women, as always, has been
worse. “I was half conscious most of the time but whenever I regained consciousness, the
commandoes were molesting me…but, I am grateful to them for giving me the chance to narrate
my agony by sparing my life at least”, revealed one amongst thousands of victims. In 2004, there
31
was a nude protest by Manipuri women. They held placards reading “Indian army raped us”’.
In response to all these sufferings women made some organizations and protested against it.
Their protests brought some fruit as About 100 women from different organizations formed a

30 http://versusbyrenaissance.blogspot.com/2010/12/armed-forces-special-forces-act-is.html

31 Mittal, Devika. “Irom Sharmila- the ‘Iron Lady’ of Manipur”. The Viewspaper.
 P a g e | 22

human chain at Ambari here to express solidarity with Sharmila. "Our message is very clear and
resolute. We want AFPSA to be repealed.

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? 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.

6.3 Politics, Military and AFSPA

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.

In response to the recommendations by the Jeevan Reddy Commission which was set up in 2004
after the Manorama protests, Pranab Mukherjee, then defence minister said that it is impossible
to repeal the Act as the military cannot function without these powers. And thus we all choose to
shut our eyes to the atrocities continuing in the North-East, in a part which does not belong to the
32
Mainland India!

There were only four insurgent groups in Manipur, today there are 25 on the government’s own
watch-list. This Act has practically given the military unprecedented powers to do their will as it

32 http://www.youthkiawaaz.com/2011/04/irom-sharmila-chanu-fast/
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prohibits any legal or judicial proceeding against any army personnel without the previous
sanction of the Central Government. It has snatched away from the people the right to protest,
the right to legal redress against atrocities or right of any lawful democratic activity. Ordinary
33
innocent persons can be easily labeled as ‘terrorists’ and ‘suspects’ and taken into custody.
It has effectively ensured that most of the excesses committed under the influence of AFSPA go
unpunished and in most of the cases even after the crime may have been proven by investigating
34
agencies, central government sanction for prosecution has not been granted.
This is how the military is acting and doing what so ever they want to do and the government is
protecting them as the army men give statements as they will not be able to act properly if the act
is repealed and this fears the government as any terrorist activities by foreigners and there will be
chaos in the whole country. It has now gone into a circle of complications from which to get out
is not that easy.

33 Ibid

34 http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html
 P a g e | 24

CONCLUSION: AFSPA no end in sight in near future

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 country’s 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 north-eastern areas as well as 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. Although there is pressure being put on by UNO also for the repeal of the
act and central government is also concerned about this matter but still the implications and
complications of removing such an important act, based on the historical help for the country, for
the security of areas most prone to terrorist activities and moreover nearer to the boarders and
also the same act that helped us a lot in earlier times to protect our country it does not seems to
be quite possible for atleast another some long years which may worsen the conditions of the
people over there and may alienate more of them which is not healthy for a country, growing
tremendously and gaining reputation in world on a large scale, like India. All we need now is to
see the welfare of the people of our country right now and no political reasons and demand the
repeal of this act. But in the end the future is not in our hands and we can only hope for the best
in future and there is only hope right now as no surety or guarantee is being provided by the
government for the future of this act and the people.
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References:

www.stanfordencyclopedia.com

www.scribd.com

http://theviewspaper.net

www.askjeeves.com

www.thehistorywriters.net


Saadut. “AFSPA : Between political rhetoric and reality”. Speaking Mind. 30th October
2011

Basu, Amrita. “Irom Chanu’s Satyagraha – On A Political Fast For The Past 11 Years”.
April 12, 2011.

Raghavan, Srinath. “AFSPA is not worth it”. The Asian Age. Sep 23, 2010

Kumar Aayush, and Goyal Preeti. “ AFSPA: A Mockery of Human Rights”