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Manvi Khanna1 & Nehal Jain2


“No doctrine, involving more pernicious consequences, was ever invented by the wit of man than
that any of its provisions can be suspended during any of its grave exigencies of government”

-Justice K. Ramaswamy (Kartar Singh vs. Union of India)

It will be a farce to assess our country as democratic when we have an act like AFSPA creating a
state of crisis and snatching away the human rights of thousands of people for more than five
decades. It becomes bothersome to witness the fact that our country is attempting to make peace
with such an Act which makes us question our postcolonial statutory principles. What troubles the
most is the grave violation of fundamental rights in the conflict zones. It is sad that the government
can arbitrarily using the Act play with the daily lives of citizens residing in conflict zones and be
the tormentor instead of benefactor. Through this paper, we aim to focus on the anomalies of the
current legislation which is in contravention with not only the Constitution of India but also the
International principles and recommend plausible solutions for the same.

Keywords: AFSPA, human rights, miscarriage of justice, international principles.

2nd Year BBA LLB Student, National Law University Odisha
2nd Year BA LLB Student, National Law University Odisha



Over the years India has been confronting the grave issue of insurgency in various states and has
been deploying the armed forces in order to maintain the law and order situation. Special powers
have been conferred upon the forces to combat such situations in the form of The Armed Forces
Special Power Act (AFSPA). It is a Parliamentary legislation applicable in certain states of India
which are termed as disturbed. It was introduced in the States of Assam and Manipur in 1958 to
suppress the radical activities arising from demand of self-determination. The Act was supposed
to be a temporary measure and valid for a year, however it was never lifted and was further
amended in the year 1972 to extend its ambit to all the seven states in the North East. The Act was
promulgated in Jammu and Kashmir in the year 1990 to combat the growing insurgency and
militant activities. A similar version of this Act was introduced in Punjab in the year 1983 but was
later repealed in the year 1997 when the government thought that it has successfully dealt with the
prevalent militancy3. The Act confers extraordinary powers on the police and military personnel
on the pretext of maintaining law and order. Such draconian powers include the right to shoot, to
raid houses, to destroy property, to arrest without a warrant on mere grounds of suspicion4 etc.
Notwithstanding that it also grants them the immunity from being prosecuted by providing the
condition of prior permission from the central government before their trial. Such unrestrained
powers encourage crimes and criminals because there is no fear of punishment and prosecution.
The military personnel are assumed to have committed gross violations of human rights in these
states under the thick veil of legal impunity. This Act is in non-conformity with various
international conventions and protocols which India has either ratified or is a signatory to. We
firmly believe that army must be deployed in disturbed areas for a certain period of time but must
not be prolonged for indefinite period. However, it is unfortunate that the exact opposite of this
has been practiced for decades in various territories. For instance, in spite of Nagaland being free
of hostilities, the State is still designated as disturbed for more than five decades which clearly
serves as an evidence of the poor governance and a strong alibi for government’s failure in
maintaining the law and order in the society and protecting the local population from insurgency.

‘Briefing: The Armed Forces Special Powers Act: A Renewed Debate in India on Human Rights and National
Security’ (Amnesty International India, September 2013) https://www.amnesty.org.in/show/entry/216352 accessed
13 July 2017.
‘Armed Forces Special Powers Act: A study in National Security tyranny’ (South Asian Human Rights
Documentation Centre) <themanipurpage.tripod.com/letters/humanrhts.html> accessed 13 July 2017.


We do not doubt the fact that certain provisions are necessary in militancy affected areas but being
the largest democracy in the world, we must take into account the public opinion and must
accordingly review and repeal certain unnecessary provisions.5


“The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or
arbitrary. A law which curtails or takes away the personal liberty of a citizen under Article 21 has
to still meet a possible challenge under the other provisions of Constitution like Article 14 and

-Maneka Gandhi v Union of India 6

The Armed Forces Special Powers Act (will now be referred as AFSPA or the Act) is a great blow
to the above-mentioned interpretation of fundamental rights as given in the case of Maneka Gandhi
v Union of India7. Fundamental rights form the core of our Constitutional jurisprudence and are
given to us not merely as a gift from the state but we are entitled to it because of our existence as
a human. The above-mentioned Act has given the Central Government and the governor the
unleashed power to declare a state or a territory as disturbed based on their subjective
interpretation. Upon the declaration, the armed forces get the powers which are neither just nor
fair and are unreasonable. Instead of being a tool by the state to bring about peace and stability in
an area, the Act has only left bitterness, hatred and anger amongst the people towards the
authorities. India being the largest democracy in the world where government is formed by the
people for the people and of the people is considered to have a liberal approach in giving its citizens
their rights and liberties it comes as a shock that such a law exists which makes a mockery of the
rights of the people.8 Even after a lot of hue and cry, the Act was granted legitimacy by the Supreme
Court in Naga People’s Movement for Human Rights vs. Union of India .Several commissions
have been set up to look into the misdemeanours for the sake of good governance. Yet, the

G K Pillai, 'Preface' in Vivek Chadha (ed), Armed Forces Special Powers Act: The Debate (S. Kumar 2013).
Maneka Gandhi v. Union of India AIR 1978 SC 597 [40].
Aayush Kumar and Prateeti Goyal, ‘Afspa: A Mockery of Human Rights’ (MightyLaws.in)
http://manupatrafast.com/articles/popopen.aspx accessed 15 July 2017.


fractured Rule of Law in the times of emergency still lays mascaraing the lives of innumerable.9
The law enforcing officials rather than being used as an arm of governance for inculcating a sense
of legality is suppressing our people in the times of crisis. We can, with no harm, thank our
governance for the sanction of impunity of the law enforcement officials. Looking at this, we can
now say that the concept of human dignity and fraternity, promoted by our Preamble, is now
nothing but a farce. There have been innumerable cases of such atrocities like the Machil
Encounter in Kupwara district of Jammu and Kashmir where three civilians were shot by the Indian
army and were later framed as ‘foreign militants’. Post enquiry, it was found that they were
civilians who were asked to serve the army as porters and were then killed in a false encounter. To
further illustrate the crisis in disturbed areas, a writ petition was filed in 2012 in the Supreme Court
of India with regard to approximately 1,528 cases of extra judicial killings. Women are the most
affected in such areas where the protectors become the evil of the society. Cases against sexual
harassment towards women have been at an all-time high. The infamous Manorma killing is one
among the innumerable cases of such type. It happened in Imphal district of Manipur where the
Assam Rifles personnel barged into her house at night and tortured her in front of her family and
then took her away. Later, her dead body was found with wounds in her private parts. The citizens
of these conflict zones have been constantly protesting to repeal AFSPA. Irom Chanu Sharmila,
popularly known as the ‘iron lady’, had put 16 years of her life in protesting against this act by
staying on a hunger strike. There have been massive protests by the ‘naked women’ who fight
against the women harassment in conflict areas. Even after all these efforts, these affected citizens
did not even experience an iota of relief from the oppression by AFSPA. A 17-year-old Javaid
Ahmad Magray, a normal school going teenager, was killed on the mere grounds of suspicion of
him being involved in anti-national activities by a subedar and other patrolling men. No justice
was given to him or his family. Leave aside justice, not even a case was registered against the
concerned personnel. These instances are just a few examples of gross human rights violations

K G Kannabiran, ‘Impunity Impairs Indian Constitution’ in Harsh Dobhal (ed), A Combat Law Anthology (Human
Rights Law Network 2011).


which are being committed in the State of Jammu Kashmir and other north eastern States and
veiled under the pretext of AFSPA.10


AFSPA’s constitutional validity was challenged in 1997 in the Supreme Court case of Naga
People’s Movement of Human Rights v Union of India case 11 where army atrocities were first
brought to light in the wake of Operation Bluebird. There were allegations on the army of torture,
rape, destruction of property in the village of Oinam and other surrounding villages. The petition
was filed in light of violation of Article 14, 19(1), 21,22,23,25 as well as other constitutional and
legal rights. Judgment was given in the favour of AFSPA and its constitutional validity was upheld
however it placed certain checks on the powers conferred on the army. Thus, Supreme Court made
its stand very clear on AFSPA and thereby ignoring India’s commitments towards the International

In 2013 two critical reports were released by high level committees which criticized the way
AFSPA was conveniently violating the fundamental rights of the citizens and how justice was a
damned thing in these areas. The two reports were by Justice Verma Committee and Justice Hegde
Commission where they addressed the issues of arbitrary power and impunity granted to the
AFSPA. The Committee on Amendments to Criminal Law, which is popularly known as the Justice
Verma Committee, particularly reviewed the laws pertaining to sexual assault against women in
conflict areas. The committee gave certain recommendations which included that the crimes
against women relating to sexual violence by the uniformed personnel or the armed forces must
be dealt under the ordinary criminal law. J S Verma, in an interview, said that such crimes are
nowhere even closely related to the official duty and hence must not require the prior approval by
the government. Subsequent to the committee’s recommendations, amendments were made to the
Code of Criminal Procedure which discarded the requirement of prior sanction for the prosecution.

‘Briefing: The Armed Forces Special Powers Act: A Renewed Debate in India on Human Rights and National
Security’ (Amnesty International India, September 2013) https://www.amnesty.org.in/show/entry/216352 accessed
13 July 2017.
Naga People’s Movement of Human Rights v. Union of India AIR 1998 SC 431.


The Justice Hegde Commission investigated the alleged cases of extrajudicial executions in the
state of Manipur. The commission said that AFSPA has mocked our Indian Constitution through
the wide abuse of its powers. Its report resonated the words of Jeevan Reddy Committee which
said that this Act has caused enough hatred amongst the people and has caused them way too much
inconvenience. What interests the most is that both, Justice Verma Committee and Hegde
Commission, were not formed to look into the aspects of AFSPA that instigated violence against
womenfolk or extrajudicial killings, respectively. Nevertheless, both of them pointed at AFSPA
as being the major reason behind these human rights violations. The provisions of the Act are
against democratic rights which are explained below:

 Absence of Guidelines
Section 3 of the Act gives the Governor of the State or the Central Government the
discretionary power to declare a territory or a stare as disturbed; no guidelines are laid
down for declaring a state as disturbed. In the case of Inderjit Barua v. State of Assam,12
the governor’s decision to declare a state as disturbed cannot be held void on the grounds
of arbitrariness in the absence of legislative directives; hence they are out of judicial
inquiry. This gives a lot of unchecked powers to the Central Government and the Governor
to declare any region as disturbed on their subjective prudence.

 Use of force
Section 4 of the Act which states ‘any officer of the army can shoot to kill in case of the
commission or suspicion of the commission of offenses such as acting in contravention of
any law or order for the time being in force in the disturbed area prohibiting the assembly
of five or more persons, carrying weapons, or carrying anything which is capable of being
used as a fire-arm or ammunition’13 is a blatant attack on the fundamental right to life of a
citizen which is stated in Article 21 of the Constitution of India. In the case of Kharak
Singh v. State of Uttar Pradesh14 the right to life has been interpreted as not merely a
freedom from physical restraint or the boundaries of prison but a life of dignity. The mere
word suspicion makes the soldier the judge of other people’s life and the people subjects

Inderjit Barua v. State of Assam AIR 1983 Delhi 513.
AFSPA 1958, s 4.
Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.


of an officer’s discretion. Article 21 also requires accused to be given full protection of
law; a just, fair and a reasonable procedure of law includes the right to a speedy trial15. It
is applicable on all stages of starting from enquiry to trial therefore killing on a mere basis
of suspicion deprives the victims (suspects) of all the protections guaranteed to them under
rule of law. This section gives a great responsibility to the officials authorized by law to
use armed forces to have a rational way of performing their job and any misuse of power
would cost a person his or her life.

 Powers of arrest and detention

Section 5 of the Act states that after the arrest of a suspect he or she must be taken to a
nearby police station with the ‘least possible delay’. The words ‘least possible delay’
creates a lot of ambiguity and make the section uncertain. Article 22 of the Constitution of
India guarantees certain safeguards against arrest and detention in certain cases to an
individual which includes the right to be informed of the grounds on which the order has
been made; right to consult; right to be defended by a lawyer of his choice; the right to be
presented before a magistrate within twenty-four hours etc. The main purpose for giving a
time of twenty-four hours within which the arrestee has to be presented is to prevent the
torture of arrestee in police custody; CrPC also provides a check and a balance system to
reduce the chances of illogical arrests including the compulsory medical tests16 and an
enquiry by the magistrate of every death in case of a death in police detention17. To address
the issue of extra judicial encounters or false encounters 11 guidelines were laid down in
the case of D.K. Basu v State of West Bengal.18 None of such measures are provided to an
arrestee under the Act. Thus, in practice it is clearly a violation of right against torture; and
cruel and dehumanizing way of being treated. In Jammu & Kashmir, various factors like
denial of arrests, refusal to show records of arrests or absence of records of arrests, claims
of escape from police custody etc. have added misery to the lives of people and abuse of
their human rights. In the case of Nungshitombi Devi v. Rishang Keishang,19 the

Hussainara Khatoon & Others v. Home Secretary, State of Bihar AIR 1979 SC 1360.
Code of Criminal Procedure (Amendment) Act 2009 (CrPC 2009) s 54.
Code of Criminal Procedure (Amendment) Act 2009 (CrPC 2009) s 176.
D K Basu v. State of West Bengal (1997) 1 SCC 216.
Nungshitombi Devi v. Rishang Keishang (1982) 1 GLR 137.


petitioner’s husband was arrested under Section 4(c) on January 10, 1981 and was still
found to be missing on February 22, 1981. The court held the delay to be too long and

 Impunity
Section 6 clearly states that ‘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 Act20 which inarguably grants a blanket immunity to the armed forces for the reason
of their protection from false allegations. Other grounds for its defence have been given
such as self-sufficiency of army’s internal enquiry proceedings, optimum safeguards to
prevent misuse etc. However, in reality the immunity has been given to such an extent that
there exists no remedy for the victim. In various instances police have denied to register a
case against a military person, claiming to follow the directions of higher authorities. In
the case of Abdul Rauf Shah21, army claimed that Jammu & Kashmir High Court had no
Jurisdiction in entertaining the petition as per Section 6 and 7 of the Armed Forces Special
Powers Act 1990.22 The condition of executive sanction to be required clearly violates the
Article 32 and Article 226 of the Indian Constitution as it denies the prevention against
arbitrary arrests on the grounds of habeas corpus and the access to the justice; thus, limiting
the role of Judiciary. The blatant immunity given under this Section violates of the principle
of rule of law, in our democratic country there can be no place for such section.


The Armed Forces Special Power Act (AFSPA), 1958 is the most controversial Act that has been
implemented in India’s democratic history. While there have been innumerous deliberations on
whether we really need such an arbitrary and repressive law, what bothers the most is that this law

AFSPA 1958, s 6.
Ashok Agrwaal, ‘In Search of Vanished Blood: The Writ of Habeas Corpus in Jammu and Kashmir: 1990-2004’
(South Asia Forum for Human Rights 2008) 65.
Devyani Srivastava, 'Rights-Based Critique of AFSPA' in Vivek Chadha (ed), Armed Forces Special Powers Act:
The Debate (S. Kumar 2013).


has been contravening not only the Constitutional framework but also the international
conventions that India has an obligation to comply with The provisions and application of the
APSPA violates the International Covenant on Civil and Political Rights (the “ICCPR”), the
Universal Declaration of Human Rights (the “UDHR”), the UN Code of Conduct for Law
Enforcement Officials, the Convention Against Torture (CAT), the UN Principles on Effective
Prevention and Investigation of Extra- legal and summary executions, and the UN Body of
Principles for Protection of All Persons Under any form of Detention.23

 International Covenant on Civil and Political Rights (ICCPR) International

Covenant on Civil and Political Rights (ICCPR):

India, in 1978, signed the ICCPR and thus took over the responsibility of protecting the
rights of the citizens of our country as per the provisions of this covenant. Under Article 2
of ICCPR,24 all citizens enjoy the rights provided to them by this covenant, which also
includes the right to remedy for those who face violation of their rights.

Article 4 of the ICCPR25 administers the abeyance of the certain rights given by the
covenant. However, article 6, 7, 8, 9, 11, 15, 16, and 18 are the non- derogable rights under
ICCPR and AFSPA clearly violates most of them. It violates Article 6 which assures the
right to life, Article 7 which forbids torture, and Article 8 which forbids forced labour. The
AFSPA Act under Section 4 (a) gives an officer the liberty to shoot when there is any doubt
of having a weapon or any kind of unlawful assembly. The interpretation of weapon can
be done in a very broad sense as it can be defined as anything which has the ability and
competence of being used as a weapon. The infamous Operation Bluebird is one such
example which showcased the atrocities caused by the Army where the villagers were
forced to work, tortured, beaten and were left to die. It happened as a retaliation of an attack
on the outpost of Assam Rifles in a village named Oinam in Manipur.

Kumar and Goyal (n 6).
ICCPR 1966, art 2.
ICCPR 1966, art 4.


 International Customary Law:

The UN Principles on Effective Prevention and Investigation of Extra-legal and summary

executions, the UN Code of Conduct for Law Enforcement Officials, and the UN Body of
Principles for Protection of All Persons Under any form of Detention were all passed by
UN General Assembly Resolutions and form a part of the International Customary Law.
They further strengthen the arguments on the violation of rights by AFSPA.
1. Principle 3 of the UN Principles on Effective Prevention and Investigation of Extra-
legal and summary executions states that “Governments shall prohibit orders from
superior officers or public authorities authorizing or inciting other person to carry
out any such extra-legal, arbitrary or summary executions. All persons shall have
the right and the duty to defy such orders. Training of law enforcement officials
shall emphasize the above provisions.”26 Therefore, it must be made sure that the
armed forces of North East do not exercise the power to shoot which is granted by
2. UN Code of Conduct for Law Enforcement Officials is applied to the security
forces of North East. The first Article of this code requires that, “Law enforcement
officials shall at all times fulfil the duty imposed upon them by law, by serving the
community and by protecting all persons against illegal act, consistent with the high
degree of responsibility required by their profession.” This, however, is lacking
among the troops and they have epitomized the atrocities in the conflict zone. The
second article states that, “In the performance of their duty, law enforcement
officials shall respect and protect human dignity and maintain and uphold the
human rights of all persons.” It is sad to point out that the exact opposite of this
Article is happening in the crisis zones. The law enforcement officials take unfair
advantage of the impunity. They do not comply with this Article nor do they
undergo any sort of training.
3. The UN Body of Principles for Protection of All Persons Under any form of
Detention is applied to anyone who is under detention of some type. It also requires
that the person arrested must be informed of the charges and that the information

Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions 1989.


must be given in a language that can be understood by that person. The forces
stationed in the North East do not come from the same region and hence are unable
to abide by this principle.27

 Convention on the Elimination of all forms of Discrimination against Women


Gender based violence is defined under CEDAW as violence directed towards a woman
for the sole reason of her being a part of the womenfolk. Such violence includes any sort
of emotive, psychological, physical, or sexual distress which deprives her of her liberty.
“CEDAW defines what constitutes discrimination against women and sets a broad
framework for the action to end such discrimination”.28 . However various instances of
cruelty and brutality against women have been reported in the States of North East and
Jammu and Kashmir where the Act is in function. In the name of Operation Rhino various
houses were raided and women were raped, abducted and tortured in the name of official
duty. Various crimes which are committed against women go unreported under the garb of
blanket immunity to men in uniform.29

 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT):

India is a signatory to the Convention against Torture but hasn’t ratified the Convention
yet. Countries which do not ratify the document but sign it are still required to abstain from
taking decisions which directly go against the principles laid down. Article 1030 of CAT
directs the state to instruct the law enforcement officials to forbid brutalizing and
mistreating the detained people, however Section 431 and 532 of the Act leave various grey
areas and give enormous autonomy to the military personnel to use force against people on

‘Legal Analysis of AFSPA’ (3 March 2012) <https://exposingafspa.wordpress.com/tag/legal-analysis-of-afspa/>
accessed 15 July 2017.
Convention on the Elimination of all forms of Discrimination against Women (CEDAW), art 1.
Manjula Sen, ‘Right to Rape?’ The Telegraph (19 June 2013) <https://www.telegraphindia.com/> accessed 18 July
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), art 10.
AFSPA 1958, s 4.
AFSPA 1958, s 5.


mere grounds of suspicion. In the year 2008-09 graves of approximately three thousand
civilians in the regions of Baramulla, Kupwara and Bandipora in the State of Jammu and
Kashmir were found who have been reported as disappeared in the police stations. It was
confirmed by the State Human Rights Commission that those bodies are of people who
have been supposedly killed by the armed forces. This incident was reported however no
action was taken against the victimizers who go protected under the Act.33


Countries worldwide face the issue of promoting their internal security without compromising with
the rights of the citizens. It is the responsibility of the Government to protect the people from abuse
of their human rights, including those which have been committed by the military personnel.
However, the Act has been ineffective in accomplishing goals it was set up for and has rather
created an environment of lawlessness and impunity.34 We recommend certain measures and
changes which can be beneficial in restoring normalcy and giving a humane face to it.

 The ambiguity in the terms like ‘dangerous’, ‘disturbed’ and ‘land forces’ and other
definition voids need proper clarification and a sound reasoning behind them.
 Suitable amendments are required in the language of certain sections which grant
unrestrained powers to the authorities. For instance, words like ‘reasonable suspicion’ and
‘fire upon or otherwise use force’ become questionable due to flaw in the elucidation of
the terms.35
 It should be ensured that the provisions of the Act comply with the Constitutional
framework, International laws and the guidelines laid down in the Code of Criminal
Procedure36 and law enforcement personnel are trained to do the same.

Ravi Nitesh, ‘Ten Cases Under AFSPA You Should Know About’ <http://www.countercurrents.org/> accessed 17
July 2017.
‘Briefing: The Armed Forces Special Powers Act: A Renewed Debate in India on Human Rights and National
Security’ (Amnesty International India, September 2013) https://www.amnesty.org.in/show/entry/216352 accessed
13 July 2017.
AFSPA 1958, s 4.
Code of Criminal Procedure 1973.


 Initiate investigation into the cases of human rights violations and fast track such cases for
speedy delivery of justice. It should also be ensured that victims are provided adequate
relief and compensation.
 The condition for prior requirement of permission for prosecution of police officials should
be done away with and the jurisdiction of military courts should be limited to offences
which are military in nature not to the cases of human rights violations.
 Required police officers against whom there is evidence of committing extrajudicial
encounters, torture or any other crimes should be temporarily removed from service and
an independent investigation should be carried to look into the charges.37


“Justice will not be served until those who are unaffected are as outraged as those who are

-Benjamin Franklin

The deployment of armed forces can in no way possible hinder the fundamental rights of citizens
in our country. These set of rights ought to be protected and their sanctity is to be maintained under
all circumstances.38 The armed forces must be deployed with great deal of care and caution. In
addition to that the forces must not be stationed too frequently and for prolonged period of time.
While keeping this view in our mind we believe that the Act is too imprecise, too insensitive and
to a great extent derisive. Whatever the reason may be the harsh reality as of now is that AFSPA
is nothing but a mere symbol of subjugation for the residents of the conflict areas. It adds to the
hatred and oppression and in turn acts as an instrument of furtherance of separatist tendencies thus
lowering the level of faith of people in the government. In June 2005, the Central Government
appointed Justice Reddy Committee to bring about a report which stated that it is extremely
desirable and sensible, for the betterment of the country, to revoke this Act wholly. The Committee
specifically made a note here that army must be retained and the Act must be set off. Adding to it,

‘Denied: Failures in accountability in Jammu Kashmir’ (Amnesty International Ltd, July 2015)
https://www.amnesty.org.in/images/uploads/articles/Kashmir_Report_Web_version_ (1).pdf accessed 15 July 2017.
Colin Gonsalves, ‘This is Fake… The Repeal of AFSPA’ in Harsh Dobhal (ed), A Combat Law Anthology (Human
Rights Law Network 2011).


the Committee proposed that there must be an appropriate legal apparatus to set the rules in the
disturbed areas. Even if it is not feasible to repeal the whole Act certain provisions of it must be
repealed or amended. Since India recognizes its army as a secular and apolitical force therefore
adherence with the humanitarian principles is the only plausible way for not letting this faith fade