A CRITICAL ANALYSIS ON ARMED FORCE SPECIAL POWER ACT

SCHOOL OF LAW
MANIPAL UNIVERSITY JAIPUR

UNDER SUPERVISION OF-

SUBMITTED BY-

Mrs.Shilpa Rao Rastogi

Mamta (III Semester)

Associate Professor

151301047
B.A. LL.B (Hons)

CERTIFICATE

This is to certify that Ms. Mamta student of B.A. LL.B (Hons.) second semester school of Law
Manipal University Jaipur has completed the project work entitled A critical analysis on armed
force special power act under my supervision and guidance.
It is further certifying that the candidate has made sincere efforts for the completion of the
project work.

Supervisor Name
Mrs. Shilpa Rao Rastogi
Associate Professor

ACKNOWLEDGEMENT

I express deep sense of gratitude and ineptness to our teacher Mrs.Shilpa Rao Rastogi under
whose guidance valuable suggestions, constant encouragement and kind supervision the present
project was carried out. I am also grateful to college faculty of law for their feedback and for
keeping us on schedule.
I also wish to express my sincere thanks to my friends who held directly or indirectly by giving
their valuable suggestions.

Mamta

TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................ 5
MEANING OF AFSPA ................................................................................................................................ 6
NEED OF AFSPA FOR THE ARMED FORCES ....................................................................................... 6
WHAT IF AFSPA IS DILUTED? ................................................................................................................ 7
IS AFSPA A BLOT ON THE DEMOCRATIC FABRIC OF INDIA? ........................................................ 8
LEGAL ANALYSIS OF ARMED FORCE SPECIAL POWER ACT ........................................................ 9
IN ACCORDANCE TO INDIAN LAW .................................................................................................... 10
EFFECT AND REPERCUSSIONS OF AFSPA IN THE STATES OF J&K AND MANIPUR ............... 12
PRESENT SCENARIO OF AFSPA ........................................................................................................... 13
PUBLIC CRISIS AND RESPONSE: ......................................................................................................... 14
WOMEN SUFFERINGS AND REACTIONS: .......................................................................................... 15
POLITICS, MILITARY AND AFSPA ...................................................................................................... 17
AFSPA NO END IN SIGHT IN NEAR FUTURE..................................................................................... 19
RECOMMENDATIONS ............................................................................................................................ 20
BIBLIOGRAPHY ....................................................................................................................................... 22
WEBLIOGRAPHY..................................................................................................................................... 22

INTRODUCTION
The Armed Forces (Special Powers) Act, 1958, or AFSPA, as it is commonly known, has
been a subject of intense discussion and debate. AFSPA has been in force in the North-East and
Jammu and Kashmir, and the draconian law has been the reason of wide protests. The Armed
Forces (Special Powers) Act, 1958 (AFSPA) was preceded by the Armed Forces (Assam and
Manipur) Special Powers Ordinance 1958. The Ordinance gave the armed forces certain special
powers in the disturbed areas of Manipur and Assam. It was replaced by AFSPA on September
11, 1958. AFSPA empowers the governor of the state, or the central government to declare any
part of the state as a disturbed area, if in its opinion there exists a dangerous situation in the
said area which makes it necessary to deploy armed forces in the region. In the backdrop of the
growing insurgency in Jammu and Kashmir, the Central government issued a similar enactment
known as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. This rule by the
army has had a drastic effect on the daily life of the average citizen residing in the North East
and Kashmir. There has been a renewed issue over Armed Forces Special Powers Act, in the
recent time. The Act has been at the heart of concerns about human rights violations in the
region, such as arbitrary killings, torture, cruel, inhuman and degrading treatment and enforced
disappearances. Its continued application has led to numerous protests, and the strongest
opposition has come from J&K, where the AFSPA is seen as a major stumbling block in the way
of peace and reconciliation in the region. On the other hand, the army, perceives it is an essential
enabling mechanism, to not only ensure peace and security in the state, but also to defeat the
proxy war aims of Pakistan. Over a period of time, substantial efforts have been made to ensure
greater accountability and responsibility in the conduct of armed forces while operating under
the provisions of AFSPA. There has been a concerted attempt by the government to ensure that
inconvenience to the people is minimized and that human rights are an operative factor at every
level. However, the embedded perceptions, based on past cases of human rights violations and
the alleged incompatibility of the law with human rights, have led to demands for its revocation.
Over the years India has been facing the challenge of insurgency in some states and has
employed the armed forces of the union to contend with it. To combat this very unusual
situation, special powers were given to the forces in the form of the Armed Forces Special
Powers Act (AFSPA) by the parliament.

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 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, 2004.1

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. Now we will consider with the necessity of AFSPA for the armed forces.

NEED OF AFSPA FOR THE ARMED FORCES

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 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.

www.studentsappeal.com

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.
As we have already seen the usefulness of AFSPA for the Indian soldiers, we can now easily
relate to the consequences of what will happen if AFSPA is diluted.

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. 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 grievances2

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.

pao.net/epSubPageExtractor.asp?src=manipur.History_of_Manipur.AFSPA-A_Historical_Perspective.AFSPAA_Historical_Perspective_1

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,
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.[ii]

Now as we have discussed the literal meaning of AFSPA, we are hence in full condition to
understand the legal provisions of this act and analyse its legal importance in the society.

LEGAL ANALYSIS OF ARMED FORCE SPECIAL POWER ACT

In this topic we will be aiming to provide local, National and International Human Rights
defenders and decision makers with a comprehensive analysis of the Acts compatibility with
Indias domestic and International human rights obligations.
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
security, fair-trial rights, the right to privacy, and the right to freedom of assembly3
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

www.thehistorywriters.net

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-eastern people to want to withdraw from the state of India4

IN ACCORDANCE TO INDIAN LAW

On 27 November 1997 the Supreme Court of India rendered its judgment in Naga Peoples Movement for
Human Rights v. Union of India5. 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 militarys 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 Indias 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 interpreting domestic statutes6
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 taking effect. The judiciary
should repeal the AFSPA as it is unconditional and end army rule in the northeast7

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

1998 AIR 431
6
Vishaka et al. V. State of Rajasthan et al., 1997 AIR 3011.
7
http://ejp.icj.org/IMG/Babloo_Loitongbam.pdf
5

2.1. 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[9]." Section 4(a) of the AFSPA
which grants armed personnel to shoot and kill. This is clearly violating article 21 of our
Constitution.
2.1.2 Protection against arrest n 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."8
These two sections of article 22 of the IC can be used to safeguard the people arrested under the
AFSPA.
2.1.3 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)9
Section 6 of the AFSPA provides then with absolute immunity for all atrocities committed under
the AFSPA10. 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
8

Article 22 of the Indian Constitution

Section 45 of the Indian Criminal Procedure Code.
10
Section 6 of the AFSPA.
9

2.1.4 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
them to be irresponsible for their actions11

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
policing role, has fallen from grace 12
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, 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

11

http://www.vijbooks.com/uploads/images/products/pdf/795532090L1Mil%20Law_Sample%20For%20Web.
pdf, 5 November, 2011.
12
Langer ,Avalok. To repeal or amend. What should we do with this Act?Tehelka. 8(2001):39

suspicion that it is necessary to do so in order to maintain the public order in a disturbed

area 13
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
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 .14
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.

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
13

Kumar Aayush, and Goyal Preeti. AFSPA: A Mockery of Human Rights .Web. http:// www.mightylaws.in :
Retrieved on:- 26 Oct 2011
14
National Legislative Bodies. Armed Forces(Jammu and Kashmir) Special Powers Act
1990.Web.http://www.unhcr.org/refworld/docid/3ae6b52a14.html. Retrieved on:- 27 Oct 2011

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 NorthEast 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 and that we can study in the following research.

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 army once again made it clear on Thursday November 3, 2011 that removal of the Armed
Forces Special Powers Act (AFSPA) will make it difficult for security forces to operate and
expressed fear that the Acts absence may allow inimical elements to exploit the situation
Kashmir. The fact is that partial revocation (of the AFSPA) from the areas may be seen as a
genuine thing because there seems to be peace here. But peace is very fragile, said General
Officer Commanding in Chief for Northern Command Lt Gen K T Parnaik on the sidelines of a
function held at Teetwal, Kupwara, 200 kms from Srinagar.15
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
employed.16
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.
15

Ashiq, Peerzada. AFSPAs removal to impact operations, peace in Kashmir because of it: Army. Hindustan
Times November 03, 2011
16
Raghavan, Srinath. AFSPA is not worth it. The Asian Age. Sep 23, 2010

There are good reasons to believe that in the prevailing situation the act does provide the
requisite latitude for such transgressions to occur.17
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 dispensation18
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 on Wednesday night, clarified that it was not a decision but intent which was
announced. The Act is not something that cannot be reimposed in an area. The way AFSPA is
being rolled back can be again introduced if the experiment fails, said Omar.
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.

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
17

Jain, Divya S.. THE ARMED FORCES SPECIAL FORCES ACT IS A NECESSITY IN THE CURRENT
SCENARIO:against the motion. Versus. SUNDAY, DECEMBER
12, http://versusbyrenaissance.blogspot.com/2010/12/armed-forces-special-forces-act-is.html . 24 October,2011.
18
Saadut. AFSPA : Between political rhetoric and reality. Speaking Mind. 30th October
2011. http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html. 30th October 2011.

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 militancyterrorism. However, its 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 mebut, 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
was a nude protest by Manipuri women. They held placards reading Indian army raped us.19
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
human chain at Ambari here to express solidarity with Sharmila. "Our message is very clear and
resolute. We want AFPSA to be repealed. Today, Sharmila has completed 11 years of her fast in
protest against AFPSA. We back Sharmila's struggle," said Sumitra Hazarika, the secretary of
Sadou Asom Pragati Nari Sanstha secretary, one of the three women organisations which formed
a human chain here. The other social bodies were Nirjatan Birudhi Ekya Manch and Nari Mukti
Sangram Samiti.20

Similar protests have been taking place since a long time now. The

government had reacted to these protests and Irom Sharmilas heroic struggle by ignoring these
pleas and by suppressing the Iron Lady. The Government had been forcefully feeding Irom
Sharmila through nasogastric incubation to keep her alive. She was also re-arrested and released
every year. The Government argued that AFSPA is a necessary evil in the disturbed areas.
People wondered what is disturbing the state more militancy or the army rule. The Manipur
militancy revolves largely around development. The aam insaan doesnt want a different state, a

19
20

Mittal, Devika. Irom Sharmila- the Iron Lady of Manipur. The Viewspaper.
Civil society groups in state back Irom's cause. The Times of India. November 3, 2011.

different administrative unit. They do not understand these thingsthey only want bread, land
and peace21
The HRW report mentions how tribal women in Tripura are molested and raped by military
personnel. Tripura, which is rarely in the news, has witnessed gross violations of human rights
due to the AFSPA. Anthony Debbarma, human rights activist from Tripura says, On February
16, 1997, 37 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.22 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.

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 2010 at
least 120 civilians were killed in Kashmir unrest (majority of them kids and youngsters) when
security forces fired on them, often blaming them for stone pelting: however the refrain shown
by the same security forces in Jammu in 2008 during the Amarnath unrest was different, where
angry protestors resorted to blockade of Kashmir valley and large scale violence. Even after the
21

Mittal, Devika. The Iron Lady of Manipur. Indian Examiner. October 11,
2011.http://www.indianexaminer.com/the-iron-lady-of-manipur.html. 25 October,2011.
22
Rehman, Teresa. Armed Forces (Special Powers) Act. Tehelka, Vol 5, Issue 35, Dated Sept 06, 2008.

protests in Jammu had turned extremely violent resulting in the killing of two policemen,
security forces did not resort to any firing on civilians. In Kashmir the actions of security forces
is seen as a mindset of us controlling them by any and all means.23
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
Mainland India!24
There were only four insurgent groups in Manipur, today there are 25 on the governments own
watch-list. This Act has practically given the military unprecedented powers to do their will as it
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
innocent persons can be easily labeled as terrorists and suspects and taken into custody.[58]
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
agencies, central government sanction for prosecution has not been granted.25
An example of how AFSPA shields rights violators is the 25th March 2000 Pathribal (in South
Kashmir) incident where officials of 7 Rashtriya Rifles killed 5 civilians in a fake encounter
whom they had earlier labeled as five "foreign militants". Protests by civilians against the fake
encounter resulted in many more civilian deaths during police firing on these protestors and
subsequently the state government was forced to hand over the case to CBI. The CBI
conclusively proved by DNA matching that the five killed had been innocent civilians who had
been picked up from various places and killed in a fake encounter for passing them as "foreign
militants". Till date the prosecution of such cases has been withheld by the Government of India,
hence justice remains elusive for the victims.26 This is how the military is acting and doing what
so ever they want to do and the government is protecting them as the armymen give statements
23

Saadut. AFSPA : Between political rhetoric and reality. Speaking Mind. 30th October
2011. http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html. 30th October 2011.
24
Basu, Amrita. Irom Chanus Satyagraha On A Political Fast For The Past 11 Years. April 12,
2011. http://www.youthkiawaaz.com/2011/04/irom-sharmila-chanu-fast/ . 31 October,2011
25
Ibid
26
Saadut. AFSPA : Between political rhetoric and reality. Speaking Mind. 30th October
2011. http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html. 29th October 2011.

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.

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 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 no where to be seen mainly because of poltical 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.

RECOMMENDATIONS
States worldwide face the challenge of promoting security without sacrificing human rights. It is
the duty of the Indian government to protect people from rights abuses and crimes, including
those committed by armed groups. However the AFSPA has been ineffective in meeting these
goals, and has instead contributed to the creation of a culture of impunity in areas where it is
operational.
As the Justice Hegde Commission noted, the continuous use of the AFSPA for decades in
Manipur has evidently had little or no effect on the situation, while it has led to gross abuse.
The application of the AFSPA in J&K has created a similar situation, where impunity for rights
violations by security forces has actually contributed to further abuses. As the Justice Verma
committee noted, the use of the AFSPA has also legitimized sexual violence against women.
The Government of India must respect peoples rights to life, liberty, assembly and remedy, and
send a clear message that no rights violation by its forces will be tolerated.
We urge the Government of India:

Repeal the Armed Forces Special Powers Acts, 1958 and 1990.

As an interim measure, pending repeal of the AFSPA, grant sanction to pending cases for
prosecution of members of security forces suspected of human rights violations, and
remove the requirement for sanction to prosecute in all cases of alleged human rights
violations.

Ensure that security legislations comply fully with Indias international legal obligations
and are in line with international standards including the UN Principles for the Prevention
of Extra-legal, Arbitrary and Summary Executions.

We urge state governments in states where the AFSPA is in force to:

Initiate full and independent investigations into all human rights violations, including
sexual violence and extrajudicial executions, allegedly committed by security forces in
areas where the AFSPA is in force; where sufficient admissible evidence is found,
prosecute suspects including those with command responsibility - in fair and speedy
trials in civilian courts, without recourse to the death penalty.

Ensure that victims of human rights violations are provided effective reparation,
including adequate compensation and rehabilitation. Ensure that police officials are held
accountable for any lapses in registering or investigating cases of human rights violations
allegedly committed by security forces.

Ensure that law enforcement personnel, including security forces that carry out law
enforcement, are trained in upholding international standards, including the UN Code of
Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials.

Protect the civilian population from rights abuses and violent crimes.

BIBLIOGRAPHY

M P Jain, Indian Constitutional Law, 7th edition, Lexis Nexis Publication.

WEBLIOGRAPHY

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http://www.youthkiawaaz.com/2011/04/irom-sharmila-chanu-fast/ accessed
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http://saadut.blogspot.com/2011/10/afspa-between-political-rhetoric-and.html
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