By Gaurav Hooda
Editor’s Note: The AFSPA provokes strong reactions both in the Northeast as well as Jammu & Kashmir; even though it’s constitutional validity has been upheld by the Supreme Court. Certain clear cases of human rights violations, where the armed forces have stonewalled all attempts to investigate and punish those who are obviously guilty, have only strengthened the widespread perception that the AFSPA is for the protection of armed forces personnel – and thus encourages human rights violations. It must be noted that the AFSPA comes into effect only after the government declares a State, or parts of it, as disturbed.
In a democracy the army must be employed for a limited period and its deployment cannot be prolonged indefinitely. Unfortunately, such districts and states continue to be ‘disturbed’ for years and even for decades. This, is only an excuse and an alibi for poor governance, and the failure of the Central and State governments to enforce law and order.
But in a democracy, public opinion and perceptions must be taken into account when examining whether a particular act needs to be reviewed or even repealed.AFSPA will always be called as draconian law until and unless it is executed with right intentions and right utilization of given powers.
“What is a lifetime adventure for you is a daily routine for us.”
– Indian Army.
The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the more draconian legislation 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 (NCO) 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 northeastern region of India. They are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram, and Nagaland, also known as the “seven sisters”.
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.
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. The Do’s and Don’ts (See Annexure I), formulated by the army as guidelines for operations, were upheld by the Supreme Court, in its judgment on the Naga People’s Movement Against Human Rights etc. vs Union of India case, thereby ensuring adherence to procedural guidelines by the armed forces.
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. This has resulted in a significant drop in the complaints relating to human rights violations. However, the embedded perceptions, based on past cases of human rights violations and the alleged incompatibility of the law with human rights, has led to demands for its revocation.
Omar Abdullah, the chief minister of J&K, has been very forthright about his government’s desire to revoke the law from the “Srinagar, Budgam, Samba and Kathua districts of the state” because the army has not been conducting operations in these districts for a long time and the districts are “almost militancy free”.
The Chief Minister informed the legislators that no formal recommendation had been sent in this regard to the central government, although, in view of the powers vested in the governor, his government was in a position to get it revoked. While accepting the difference of opinion with the army on the issue of revocation, Abdullah also expressed the desire of his government to revoke all laws from the state that “had lost their relevance”. Finally, he added that the revocation could not be linked with the maintenance of law and order since the AFSPA was meant to combat militancy, which had come down to a mere five percent of 2002 levels.
The army, however, has a different view. The former chief of army staff, Gen V K Singh emphasized that the AFSPA, was a “functional requirement” of the army.
“For those who have fought for it, freedom has a flavor… The protected will never know.”
VIEWS FROM AFFECTED AREAS
Wajahat Habibullah, who has had first-hand experience of dealing with challenging issues in Kashmir, contends that the AFSPA is in violation of Article 21 of the Constitution, which guarantees the right to life. He makes a case for the revocation of AFSPA, in its present form, and further argues that if the law has to be retained, it must be changed “in full conformity with the principles of its functioning, including the principles of CrPC, laid down by the Supreme Court.”
Pradip Phanjoubam, while supportive of the “near consensus” amongst liberal elements of society for the revocation of AFSPA, also recognizes the dilemma of replacing it. In view of the ongoing debate, he stresses the need to “civil (ize) the AFSPA and make it fit to enable future quasi-military policing.”
HUMAN RIGHTS PERSPECTIVE
Devyani in her chapter puts forward arguments to show how AFSPA contravenes fundamental rights. She concludes that: “In failing to protect and uphold human rights, the Act reinforces a militarised approach to security which has proved to be not only inefficient but, in fact, counterproductive in tackling security challenges.
She further recommends revocation of the power to shoot-at-sight; adherence “to guidelines on arrest as laid down in the CrPC and the DK Basu judgment; prohibition of use of force while effecting arrest; production of each arrestee before the court within 24 hours; and removal of the immunity clause so people have access to remedies in case of violation.”
It should be noted that many limitations of the law were removed by the legal sanctity according to the ‘Dos’ and ‘Don’ts’ by the Supreme Court in the Naga People’s Movement case mentioned above. These include adherence to procedures for arrest; handing over the accused to the police within 24 hours; as well as the upholding of the immunity clause. Ali Ahmed, in his paper, emphasizes that the “provisions of Common Article 3, as incorporated to domestic law” should be implemented in the Indian context, “including suppression of grave breaches.”
THE SECURITY FORCES PERCEPTION
The army’s views, as one of the important stakeholders in the entire debate, are based on its perception of the ground realities, particularly in the state of J&K. A number of arguments have been given for the retention of AFSPA.
First, India is fighting a proxy war in the state and, therefore, AFSPA enables the security forces to fight both external and externally-abetted forces that threaten not only the security of the state but also of the country. The encounter on March 28, 2012, in Kupwara, in which five Lashkar-e-Taiba (LeT) terrorists were killed, testifies to this fact.
Second, the army has its military establishments, intelligence set-up and even convoys that pass through areas where AFSPA is not operative. Therefore, the security of both men and material require the legal safeguards and operational powers of AFSPA.
Third, cases of hot pursuit could well take troops from areas where the law is in force to where it may have been revoked, thus leading to legal complications, as well as allowing terrorists to create safe havens for themselves.
Fourth, the army, in its security assessment, sees a rise in terrorist violence in the coming years, given the availability of trained and willing terrorist cadres in Pakistan, who are moreover likely to increasingly turn their attention towards India after the de-induction of US-led forces in Afghanistan. Under these circumstances, the army feels that once AFSPA is revoked, political compulsions will not allow its re-introduction even if the situation in the state worsens.
The example of Imphal, which has seen a spurt in militant activities since the lifting of the disturbed area status, is cited as proof. Maj Gen Umong Sethi,’s arguments are based on these premises. Lt Gen Satish Nambiar, while highlighting the need for review in view of the domestic perceptions, feels that “It is possible to state with some conviction that in 99 percent, possibly 99.9 percent, or maybe even 99.99 percent cases, our forces take every precaution to ensure that there is no loss of life to innocent civilians or collateral damage to property.”
Maj Gen Nilendra Kumar highlights the need for humanizing AFSPA. He recommends a number of measures, within the constitutional and legal framework of existing laws to build in the necessary checks and balances. A number of these measures stem from the experience of the author and his handling of the AFSPA debate within the army.
The CRPF is deployed in the hinterland in J&K, also comes within the purview of AFSPA. While its position vis-à-vis the law has not been debated as much as that of the army, K Vijay Kumar, DG CRPF, however, said that the: “CRPF does not have a stand on the issue, as it will go with the stand of the home ministry…Our only reservation is about the protection the law confers upon us. As long as there is some law, we have no problem.”
The Inspector General of Police, Kashmir, in an interview to FORCE, preferred to leave the decision to the government: “It is the government’s prerogative to take the decision. I think AFSPA is a complicated issue. One has to appreciate that there is also a question of perception when it comes to the Act.”
The inability of the army to communicate its point of view, despite misperceptions about the law and the positive contribution made by the army over a period of time is found to be lacking. There is a need for a more viable strategic communication strategy for the army in a battle where, at times, the reality is replaced by perceptions. The 24/7 media requires a more proactive and transparent public information environment in the army. It should be reiterated that since laws such as AFSPA are enacted by Parliament, it is primarily the responsibility of the government to communicate with the public over the ongoing debate on AFSPA.
It was evident from the controversy that there are no easy answers to the challenges faced. While limitations of AFSPA have been commented upon at length and suggestions made, however, according to Pradip Phanjoubam, no clear alternatives are available. The Defense Minister, A K Antony, replying to a question in Parliament, indicated that a decision will be taken after carefully considering the opinions of the central and state governments and security forces.
Clearly, the need for a consensus on an issue that has far-reaching ramifications is a must, lest the law which is meant to protect the people and enable the government to take action against terrorism, leaves the people vulnerable to violence in the wake of serious difference of opinion amongst decision makers.
Also, there is a real danger of AFSPA becoming a symbol of oppression and hostage to previous violations if the voices emanating from regions affected by terrorism and insurgency, along with international opinion, are not heard and their grievances redressed.
“I will come back either after hoisting the flag or being wrapped in the flag.”
ANALYSIS OF THE ACT
The Armed Forces Special Powers Act contravenes both Indian and International law standards. This was exemplified when India presented its second periodic report to the United Nations Human Rights Committee in 1991. Members of the UNHRC asked numerous questions about the validity of the AFSPA, questioning how the AFSPA could be deemed constitutional under Indian law and how it could be justified in light of Article 4 of the ICCPR.
The Attorney General of India relied on the sole argument that the AFSPA is a necessary measure to prevent the secession of the North Eastern states. He said that a response to this agitation for secession in the North East had to be done on a “war footing.”
He 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 exemplifies the vicious cycle which has been instituted in the North East due to the AFSPA. The use of the AFSPA pushes the demand for more autonomy, giving the peoples of the North East more reason to want to secede from a state which enacts such powers and the agitation which ensues continues to justify the use of the AFSPA from the point of view of the Indian Government.
Violation of Fundamental Right:
It is extremely surprising that the Delhi High Court found the AFSPA constitutional given the wording and application of the AFSPA. The AFSPA is unconstitutional and should be repealed by the judiciary or the legislature to end army rule in the North East.
Violation of Article 21 – Right to life
Article 21 of the Indian Constitution guarantees the right to life for all people. It reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”*
The judicial interpretation that “procedure established by law means a “fair, just and reasonable law” has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi. This decision overrules the 1950 Gopalan case which had found that any law enacted by Parliament met the requirement of “procedure established by law”.
Under Section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of force.
The offenses under Section 4(a) are: “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 or the carrying of weapons or of things capable of being used as weapons or fire-arms, ammunition or explosive substances”.
None of these offenses necessarily involve the use of force. The armed forces are thus allowed to retaliate with powers which are grossly out of proportion with the offense.
Justice requires that the use of force be justified by a need for self-defense and a minimum level of proportionality. As pointed out by the UN Human Rights Commission, since “assembly” is not defined, it could well be a lawful assembly, such as a family gathering, and since “weapon” is not defined it could include a stone. This shows how wide the interpretation of the offenses may be, illustrating that the use of force is disproportionate and irrational.
In the Indrajit Barua vs The State Of Assam And Anrxix case, the Delhi High Court found that the state has the duty to assure the protection of rights under Article 21 to the largest number of people. Couched in the rhetoric of the need to protect the “greater good”, it is clear that the Court did not feel that Article 21 is a fundamental right for the people of Assam. The Court stated, “If to save a hundred lives one life is put in peril or if a law ensures and protects the greater social interest then such law will be a wholesome and beneficial law although it may infringe the liberty of some individuals.”
This directly contradicts Article 14 of the Indian Constitution which guarantees equality before the law. This article guarantees that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The AFSPA is in place in limited parts of India. Since the people residing in areas declared “disturbed” are denied the protection of the right to life, denied the protections of the Criminal Procedure Code and prohibited from seeking judicial redress, they are also denied equality before the law. Residents of non-disturbed areas enjoy the protections guaranteed under the Constitution, whereas the residents of the Northeast live under virtual army rule. Residents of the rest of the Union of India are not obliged to sacrifice their Constitutional rights in the name of the “greater good”.
Protection against arrest and detention – Article 22
Article 22 of the Indian Constitution states that:
(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.
The remaining sections of the Article deal with limits on these first two sections in the case of preventive detention laws. On its face, the AFSPA is not a preventive detention law, therefore, the safeguards of sections (1) and (2) must be guaranteed to people arrested under the AFSPA.
Section (2) of Article 22 was the subject of much debate during the framing of the Indian Constitution. There was an argument over whether the time limit should be specified or whether the words “with the least possible delay” should be used. Dr. Ambedkar, one of the principal framers of the Indian Constitution argued that “with the least possible delay” would actually result in the person being held for a shorter period of time, whereas “twenty- four hours” would result in the person being held for the maximum time of twenty-four hours.
The application of these terms has since shown that a specified time period constitutes a greater safeguard. Under the AFSPA, the use of “least possible delay” language has allowed the security forces to hold people for days and months at a time.
In its application, the AFSPA does lead to arbitrary detention. If the AFSPA were defended on the grounds that it is a preventive detention law, it would still violate Article 22 of the Constitution. Preventive detention laws can allow the detention of the arrested person for up to three months. Under 22(4) any detention longer than three months must be reviewed by an Advisory Board. Moreover, under 22(5) the person must be told about the grounds of their arrest.
Under Section 4(c) of the AFSPA a person can be arrested by the armed forces without a warrant and on the mere suspicion that they are going to commit an offense. The armed forces are not obliged to communicate the grounds for the arrest. There is also no advisory board in place to review arrests made under the AFSPA. Since the arrest is without a warrant it violates the preventive detention sections of Article 22.
The case of Luithukla v. Rishang Keishing, (1988) 2 GLR 159, a habeas corpus case, the Court said that the army may not act independently of the district administration. Repeatedly, the Guwahati High Court has told the army to comply with the Code of Criminal Procedure (CrPC), but there are is no enforcement of these rulings.
Army officers have accused High Court judges of weakening military powers in the North East, exemplifying that the armed forces are not interested in complying with civil law standards. Any attempt by the courts to oblige compliance with police procedure is ignored.
In the habeas corpus case of Bacha Bora v.State of Assam, (1991) 2 GLR 119, the petition was denied because a later arrest by the civil police was found to be legal. However, in a discussion of the AFSPA, the Court analyzed Section 5 (turn the arrested person over to the nearest magistrate “with least possible delay”). The court did not use Article 22 of the Constitution to find that this should be less than twenty-four hours but rather said that “least possible delay” is defined by the particular circumstances of each case.
In this case, the army had provided no justification for the two-week delay, when a police station was nearby, so section 5 was violated. Nevertheless, this leaves open the interpretation that circumstances could justify a delay of 5 days or more.
Military’s Immunity / Lack of Remedies
The members of the Armed Forces in the whole of the Indian Territory are protected from arrest for anything done within the line of official duty by Section 45 of the CrPC. Section 6 of the AFSPA provides them with absolute immunity for all atrocities committed under the AFSPA. A person wishing to file suit against a member of the armed forces for abuses under the AFSPA must first seek the permission of the Central Government.
This section of the AFSPA was also reviewed in Indrajit Barua. The High Court justified this provision on the grounds that it prevents the filing of “frivolous claims”. The court even said that this provision provides more safeguards, obviously confusing safeguards for the military with safeguards for the victims of the military’s abuses.
Instances of human rights abuses by the army have shown that unless there is public accountability there is no incentive for the army to change its conduct. This was exemplified in Burundi when security forces killed 1,000 people in October 1991.
Amnesty International reported, “the failure to identify those responsible for human rights violations and bring them to justice has meant that members of the security forces continue to believe that they are above the law and can violate human rights with impunity.” Without the transparency of public accounting, it is impossible to be sure that perpetrators are actually punished.
Habeas corpus cases have been the only remedy available for those arrested under the AFSPA. A habeas corpus case forces the military or police to hand the person over to the court. This gives the arrested person some protection and it is in these cases that legal counsel has been able to make arguments challenging the AFSPA. However, a habeas corpus case will not lead to the repeal of the act nor will it punish particular officers who committed the abuses. Also, only people who have access to lawyers will be able to file such a case.
Section 6 of the AFSPA thus suspends the Constitutional right to file suit. Mr. Mahanty raised this crucial argument in the first Lok Sabha debate on the AFSPA in 1958. He said that Section 6 of the AFSPA “immediately takes away, abrogates, pinches and frustrates the right to constitutional remedy which has been given in Article 32(1) of the Constitution.” This further shows that the AFSPA is more than an emergency provision because it is only in states of emergency that these rights can be constitutionally suspended.
Article 32(1) of the Constitution states that “the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
Dr. B R Ambedkar said, “If I was asked to name any particular article of the Constitution as the most important – an article without which this Constitution would be a nullity. I would not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.”
The Army Act
The 1950 Act was a revision of the 1911 Indian Army Act. One of the goals of this revision was “to bridge the gap between the Army and civil laws as far as possible in the matter of punishments of offenses.” The High Courts of the country have a limited right to interfere with the court-martial system. Court-martial proceedings do not have to satisfy Article 21 of the Constitution.
In Chapter Five of the Army Act, the members of the services are granted privileges, including immunity from attachments and arrest for debt. The only civil acts committed by members of the army which are not triable by court-martial are murder or rape of a civilian unless this was done while on active service. This means that soldiers operating under the AFSPA will, if tried at all, be tried by court-martial, leaving no civil law remedy for the victims. Section 6 of the AFSPA only further reinforces the army’s immunity.
States of Emergency
The declaration that an area is disturbed essentially amounts to declaring a state of emergency but by-passes the Constitutional safeguards. The point that this bill invokes a state of emergency was raised immediately by Mr. Mahanty (Dhenkanal) in the 1958 Lok Sabha debates. He said the Assembly could not proceed if Section 352(1) of the Constitution was not fulfilled. In response, Mr. K C Pant, then Home Minister, attempted to argue that the powers granted under the AFSPA do not resemble a state of emergency. He said that in an emergency fundamental rights can be abrogated and that the AFSPA does not abrogate those rights. But under Section 4(a) the right to life is clearly violated.
An officer shooting to kill, because he is of the opinion that it is necessary, does not conform, even prima facie, with the Article 21 Constitutional requirement that the right to life cannot be abridged except according to procedure established by law.
Dr. Krishnaswanmi (Chingleput) also made the argument that the AFSPA was outside the powers granted in the Constitution since it was declaring a state of emergency without following the Constitutional provisions for such a declaration. He argued that this Bill would take away the State’s power by bringing in the military.
In a state of emergency, fundamental rights may be suspended under Article 359, since the 1978 amendment to this Article, rights under Articles 20 and 21 may not be suspended. As shown above, the AFSPA results in the suspension of Article 21 right to life, therefore AFSPA is more draconian than an emergency rule. Emergency rule can only be declared for a specified period of time, and the President’s proclamation of emergency must be reviewed by Parliament. The AFSPA is in place for an indefinite period of time and there is no legislative review.
The AFSPA grants state of emergency powers without declaring an emergency as prescribed in the Constitution. The measures taken by the military outweigh the situation in the North East, notably the power to shoot to kill. The offenses are not clearly defined since all of the Section 4 offenses are judged subjectively by the military personnel. And the AFSPA is a “special jurisdiction” provision.
INCIDENTS SHOWCASING VIOLENCE: ENCOUNTERS SO FAR
1. Operation Blue Bird (Oinam, Bishunpur District, and Manipur):
Operation Blue Bird was launched on 11th July 1987 at Oinam of Manipur, where more than 30 naga villages covered and human rights violations including torture and even extrajudicial killings were done in addition to sexual harassment, theft, and loot by security personals. In a petition filed by NPMHR, it was reported that many houses were burnt and dismantled, many women were tortured and people got killed in fake encounters.
This operation was done for many days, the whole area was kept isolated and in a jailed condition where even civil administrative authorities were not permitted to move in. Cases were filed in courts, even registrar of a high court was denied to move in to record the statements, but so far nothing happened.
2. Kunan Poshpora (Kupwara District, J&K):
On 23rd February 1991, a search operation was conducted by Indian army in Kunan Poshpora village of Kupwara district. During this search operation, around 100 women including pregnant women were allegedly raped by army persons in front of villagers. No clear inquiry was made by the government. Later in the year 2014, the police officer who first visited the village to record testimony told that he was threatened many times to not to make the report public.
The government tried its best to make this case as ‘baseless’ and on the other hand, Chief Justice of J&K high court in his findings told that he never saw such a case where even normal investigative procedures were ignored. A case is still running in Supreme Court of India on this issue.
3. Bijbehra firing (Anantnag district, J&K):
On 22 October 1993, approximate 35 civilians got killed when BSF fired upon crowd during a protest. It was alleged that firing was unprovoked and done while the protest was peaceful. Magistrate inquiry and NHRC findings marked that the firing was unprovoked. J&K High Court also accepted the reports and findings and ordered compensation to victims and their families. It is not clear if the case against BSF personals was sent to grant sanction for prosecution, but till now no such prosecution was done.
4. Malom (Imphal District, Manipur):
It was 2nd November 2000, when at Malom, a place near Imphal, Assam Rifles fired upon 10 persons at a bus stand and they got killed. In these persons, even a 60-year-old lady and 18-year-old bravery award winner also got killed. This case sparked the anger in Manipur. A protest was organized. Irom Sharmila started her fast with the demand to repeal the act AFSPA. However, still, nothing happened.
5. Pathribal (Anantnag district, J&K) :
On 25th March 2000, at Pathribal in J&K, 5 civilians were picked up by Rashtriya Rifles and allegedly made as ‘foreign militants’ and as the main accused persons who were responsible for Chhatisinghpura case. Local people protest against this and claimed that these were civilians and were not involved in any such activity.
Initially, no case was lodged as defined with the impunity granted under AFSPA but later when protest erupts, CBI was asked to investigate the case. CBI in its investigation submitted the report and found guilty a Brigadier, a Lt Col, two majors and a Subedar of 7 Rashtriya Rifles for a staged encounter where civilians were picked up from Anantnag district. These encounters were told as ‘cold-blooded murders’.
The Supreme Court of India, with findings of CBI, told Indian army in the year 2011 for court-martial, (as a sanction for prosecution under civilian law could not be provided under AFSPA), however after two years army closed the case with no actions on accused personals.
6. Manorama Killing (Imphal District, Manipur):
It was the night of 10th July 2004, when Assam Rifles went to the house of Manorama at Imphal, Manipur at night, tortured her at her house before her brother and mother, then picked her up. In the morning, the dead body was found at Ngariyan Yairipok road with bullets injuries in her private parts.
A massive protest was organized by people, even the infamous naked protest also happened but the case under criminal charges could not be lodged. A local judicial inquiry was done but the report was not made public. A PIL in Supreme Court of India is still going on but no verdict has been awarded yet.
7. Shopian Case (Shopian district, J&K):
On 29th May 2009 in Shopian (J&K), two women named Aasia (age approx. 17) and Neelofar (age approx. 22) went missing from their orchard on their way back to home. Their dead bodies found on next day morning. People alleged it as murder and rape by security forces who were camped nearby. Initially, no FIR was lodged and police told that post-mortem report cleared injuries over private parts.
However people believed that police report about post-mortem is fake, protests were continued by people and later J&K govt formed a judicial panel. Under judicial inquiry, Forensic lab report established the gang rape of both the women. Besides a few suspension and transfers from the police department, nothing has happened in this case.
8. Mass Graves in J&K:
In the year 2008-09, mass graves of approximate 3000 unmarked persons were found in Bandipora, Baramulla, Kupwara and other districts. It was believed that most of these graves may belong to people who have been killed and buried by security personals without any accountability under AFSPA. It was also believed that there may be persons who are reported as ‘disappeared’, as thousands of cases of disappearances are recorded.
The State Human Rights Commission confirmed that thousands of bullet-ridden bodies buried in unmarked graves. Some 500 bodies are identified as ‘locals’ and not the ‘foreign militants’ as it was told by security agencies. In spite of all cry and hue by human rights organizations and local people, no concrete action has been taken yet from the side of government.
9. Machil Encounter (Kupwara district, J&K):
On 30th April 2010, three civilians of Baramulla (J&K) were shot by the Indian army at Machil sector in Kupwara district of J&K and were framed as ‘foreign militants’. However, later with the protest and inquiry, it was established that these persons were civilians and were called by the army to provide them jobs of porters and later were killed in a staged encounter. With the protest that erupted all over J&K as the anger of people and force used to suppress the protests, as many as 110 lives of civilians lost in the whole summer unrest of the year 2010.
Indian army in its inquiry found them guilty and in November 2014 sentenced life imprisonment to two officers and five soldiers in the court-martial for being guilty. It was told that these army personals murdered these civilians, painted their face black, had put the guns and told them ‘foreign militants’ to get rewards and remunerations under ‘anti-militancy operations.’
RECOMMENDATIONS: THE WAY FORWARD
The aspect of human rights has shaped the AFSPA controversy to a large extent. It needs to be emphasized that human rights compliance and operational effectiveness are not contrarian requirements. In fact, adherence to human rights norms and principles strengthens the counterinsurgency capability of a force. The Indian army has been recognized as an apolitical, secular and professional force by the country.
Therefore, compliance with humanitarian principles will go a long way in strengthening this faith. The suggestions that follow are in the form of policy options. These can either be incorporated in the form of amendments to the existing law or in a new one, given the psychological imperatives and perceptions associated with it.
1. Armed Forces Imperative
• Any force that operates in a counter-terrorism environment, and in the case of J&K, superimposed by a proxy war, needs protection. The Criminal Procedure Code (CrPC) provides protection under Sec 45 and 197 as does the Unlawful Activities (Prevention) Act 1967, amended in 2008 under Section 49. Therefore, any future amendment needs to cater to the protection of the armed forces operating in a disturbed area.
2. Accountability and Responsibility
• Protection for the armed forces must be accompanied by provisions that ensure responsibility and accountability, within the parameters of the law. It is for this reason that robust safeguards need to be incorporated in the existing or any new law.
Specific suggestions could include:
• Incorporation of existing Dos and Don’ts in AFSPA. These have since been formalized by the Supreme Court. (List of certain Dos and Don’ts approved by the Supreme Court are attached at Annexure I).
• Include a provision for the government to amend rules of engagement based on the evolving situation.
• Create committees at the district level with representatives of army, police, civil administration and the public to report, assess and track complaints in the area.
• All investigations should be time bound. Reasons for the delay should be communicated to the aggrieved.
• There is a need to keep detailed records of operations, to ensure suitable proof of conduct of forces and operational imperatives. The provision of technological capability for facilitating the same should be considered.
• All old cases of human rights violations should be fast-tracked and judgments communicated to the aggrieved.
3. Amendment to the Law
• The changing nature of Counter Insurgency (CI) operations must take into account the nature of the threat and calibrate the use of force accordingly. A lower threshold cannot justify excessive force. The army’s principle of minimum force must, therefore, remain a fundamental guideline for conduct of operations and should be included in AFSPA.
• The lacunae in the Act, as a result of definitional voids with respect to terms like “disturbed”, “dangerous” and “land forces” need to be amplified to ensure greater clarity The language and context of law become questionable, because of flawed elucidation of certain terms. Amongst the foremost is, “fire upon or otherwise use force, even to the causing of death.” Suitable amendments need to be incorporated to correct similar objectionable textual and contextual anomalies in the law.
• AFSPA should be made compliant with international and national norms of human rights and humanitarian law.
4. Armed Forces Public Interface
• Greater transparency in communicating the status of existing cases to include its display on the army and government’s websites.
• Proactive feedback to petitioners on action taken by the government in past human rights cases.
LIST OF DOS AND DON’TS DIRECTED BY SUPREME COURT
1. Action before Operation
(a) Act only in the area declared ‘Disturbed Area’ under Section 3 of the Act.
(b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO.
(c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities.
(d) As far as possible coop representative of local civil administration during the raid.
2. Action during Operation
(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention of law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.
(b) Arrest only those who have committed cognizable offense or who are about to Commit cognizable offense or against whom a reasonable ground exists to prove that they have committed or are about to commit a cognizable offense.
(c) Ensure that troops under command do not harass innocent people, destroy the property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities.
(d) Ensure that women are not searched/arrested without the presence of female police. In fact, women should be searched by female police only.
3. Action after Operation
(a) After arrest prepare a list of the persons so arrested.
(b) Hand over the arrested persons to the nearest police station with the least possible delay.
(c) While handing over to the police a report should accompany detailed circumstances occasioning the arrest.
(d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. The least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case.
(e) After raid makes out a list of all arms, ammunition or any other incriminating material/document taken into possession.
(f) All such arms, ammunition, stores etc. should be handed over to the police station along with the seizure memo.
(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police.
(h) Make a record of the area where the operation is launched having the date and time and the persons participating in such raid.
(i) Make a record of the commander and other officers/JCOs/ NCOs forming part of such force.
(k) [sic] Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death.
4. Dealing with Civil Court
(a) Directions of the High Court/Supreme Court should be promptly attended to.
(b) Whenever summoned by the courts, the decorum of the court must be maintained and proper respect paid.
(c) Answer questions of the court politely and with dignity.
(d) Maintain a detailed record of the entire operation correctly and explicitly.
1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station.
2. Do not use any force after having arrested a person except when he is trying to escape.
3. Do not use third-degree methods to extract information or to an extract confession or other involvement in unlawful activities.
4. After the arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force.
5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.
6. Do not tamper with official records.
7. The armed forces shall not take back a person after he is handed over to civil police.
List of Dos and Don’ts while Providing Aid to Civil Authority
1. Act in closest possible communication with civil authorities throughout.
2. Maintain inter-communication if possible by telephone/radio.
3. Get the permission/requisition from the Magistrate when present.
4. Use little force and do as little injury to person and property as may be consistent with attainment of an objective in view.
5. In case you decide to open fire:
(a) Give a warning in the local language that fire will be effective;
(b) Attract attention before firing by bugle or other means;
(c) Distribute your men in fire units with specified Commanders;
(d) Control fire by issuing personal orders;
(e) Note number of rounds fired;
(f) Aim at the front of the crowd actually rioting or inciting to riot or at conspicuous ringleaders, i.e., do not fire into the thick of the crowd at the back;
(g) Aim low and shoot for effect;
(h) Keep Light Machine Gun and Medium Gun in reserve;
(i) Cease firing immediately once the object has been attained;
(j) Take immediate steps to secure wounded.
6. Maintain cordial relations with civilian authorities and paramilitary forces.
7. Ensure a high standard of discipline.
1. Do not use excessive force.
2. Do not get involved in a hand-to-hand struggle with the mob.
3. Do not ill-treat anyone, in particular, women and children.
4. No harassment of civilians.
5. No torture.
6. No communal bias while dealing with civilians.
7. No meddling in civilian administration affairs.
8. No Military disgrace by loss/surrender of weapons.
9. Do not accept presents, donations, and rewards.
Formatted on February 15th, 2019.