V. The Armed Forces (Special Powers) Act
The Armed Forces (Assam and Manipur) Special Powers Ordinance came into force on May 22, 1958. It was adopted by the Indian parliament on September 11, 1958.173 The AFSPA was based on a 1942 British colonial ordinance that was intended to contain the Indian independence movement in the midst of the Second World War.174
In the decade that followed, the northeast was divided into separate states to accommodate the ethnic claims of various tribal and other ethnic groups. In 1972, the AFSPA was amended to extend to all the new states.175 In 1983, an almost identical law was enacted to counter militancy in Punjab state.176 While the law was allowed to lapse in Punjab once violence ended, a similar law has remained in force in Jammu and Kashmir state since 1990.177
The AFSPA has led to widespread human rights violations ever since it was enacted. Though the law was initially intended to be a short-term measure, for five decades many areas of the northeastern states have routinely (now every six months) continued to be declared disturbed so that the law can remain in force.178
A. Provisions of the Armed Forces (Special Powers) Act
Section 3 of the AFSPA provides that the government can decide that the whole or part of a state is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers in necessary.179 Under Indian law, there is no clear definition of what constitutes a dangerous or disturbed condition. Instead, this depends on the decision of federally appointed government officials and is not subject to judicial review.180
The maintenance of law and order is the responsibility of the state government under the Indian Constitution.181 As originally enacted, the power to declare an area to be disturbed was conferred only upon the state government. In 1972 the AFSPA was amended to provide that same power concurrently to the central government. An elected state government thus cannot refuse the deployment of federal armed forces. On the other hand, the state government has no authority to reprimand or prosecute those members of the armed forces that commit human rights violations against citizens of that state as this power is reserved for the central government.182
The AFSPA provides broad powers to military officers to use force, including lethal force. Section 4(a) empowers any commissioned or non-commissioned officer in the armed forces, to:
Human rights activists say that this section of the law effectively provides security forces operating under the AFSPA with a license to kill.184
While the security forces are required to file a report with the police when a combatant is killed in an armed exchange, there have been widespread allegations that people are actually killed after they have been taken into custody and false claims filed with the police constructing a fake encounter.
Officials have previously admitted to Human Rights Watch that the military sometimes extrajudicially executes detained militants to prevent hijackings or abductions to secure their release.185 Independent judicial and police investigations have found that individuals unaffiliated with armed groups have been executed and falsely described as armed combatants.186
Section 4(c) of the AFSPA also empowers members of the armed forces to arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest.
This power has been routinely abused by the armed forces amid allegations of enforced disappearances.187 The power to arrest without warrant also leads to increased risk of torture or extrajudicial execution.
Under the AFSPA the armed forces are not obliged to communicate the grounds for the arrest. The only protection provided under the AFSPA is that any person arrested has to be handed over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.188 To be in accordance with the Constitution of India, however, no person should be detained without being informed, as soon as may be, of the grounds for such arrest.189 However, the AFSPA provides no definition of what constitutes the least possible delay and it is usually interpreted as depending on the specific circumstances of each case. In practice, the armed forces routinely detain people in barracks for interrogation before handing them over to the police.
The AFSPA allows the authorities to detain a person for an unspecified amount of time, and thus without review by a magistrate. Under the Constitution of India, anyone taken into custody has to 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.190 The militarys use of the AFSPA in disregard of this constitutional requirement constitutes arbitrary detention under international law.191
Section 4(d) of the AFSPA allows the armed forces to enter and search without warrant any premises and to use such force as may be necessary. According to Manipuri activists, this power has often been abused by government forces to destroy property, harass residents, and in some case, plant false evidence.192 The powers provided under this section can again lead to unnecessary and excessive use of force in violation of domestic and international laws.
Section 6 of the AFSPA provides government security forces with immunity from prosecution:
This provision, allegedly necessary to protect officials from harassment, displays a lack of faith in the judiciary, which has the authority and capacity to decide whether charges are vexatious, abusive, or frivolous. While the judiciary is deemed capable of making such decisions in cases involving ordinary citizens, soldiers are given special status and provided immunity from prosecution, leaving victims of abuses without any remedy.
Although the central government may waive immunity under the act to permit a prosecution, this provision is routinely used to protect those whom independent investigations have found responsible for serious crimes. For example, the Central Bureau of Investigation (CBI) found five soldiers responsible for the murder of villagers in Kashmir in 2000 in what the army claimed was an armed encounter with Pakistan-based militants. The CBI argued that murder charges could be filed in this case because the victims had been deliberately abducted and murdered by the soldiers. Yet the army cited the immunity provisions in the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, which is based on the 1958 law. The case is still pending.194
In 2007, police investigations found that the police and army in Kashmir had plotted to abduct and kill civilians and falsely identify them as foreign militants because they wanted rewards or promotions. While the police officers involved have been charged with murder, the army has refused to produce the soldiers for trial.195
The army claims that members of the armed forces are tried before courts martial. However, such proceedings, if they take place, are not open to the public and the findings are not published. Government officials say that details of the incidents and names of those punished cannot be made public because this could endanger the lives of the soldiers in question and damage troop morale. Neither of these reasons is compelling and appears to be contrived to cover up human rights violations and pervasive impunity.
Immunity provided under the AFSPA violates Indias treaty obligations under the ICCPR. Each state party to the ICCPR undertakes:
In November 1997 the Supreme Court of India ruled that a declaration of disturbed status under section 3 of the AFSPA should be reviewed every six months.199 However, since the court did not provide any criteria for an objective assessment before such a declaration, in practice the review has remained a routine bureaucratic exercise.
B. Campaign for Repeal of the AFSPA
Campaigns to repeal abusive counter-terrorism laws adopted by India, such as the Terrorist and Disruptive Activities (Prevention Act), 1985 and the Prevention of Terrorism Act (POTA), 2002, have met with considerable success. Both laws were allowed to lapse under public pressure because of widespread abuses related to these laws. In 2004, some provisions of these laws were incorporated into the 1967 Unlawful Activities (Prevention) Act.200
However, despite an intense campaign by domestic and international human rights groups to repeal the AFSPA and the recommendation of government committees in favor of repeal, the Indian government has been unwilling to act.
The Supreme Court
The AFSPA has been challenged in the courts. In 1980, a Manipuri group named the Human Rights Forum filed a public interest litigation in the Supreme Court, challenging the constitutional validity of the AFSPA. The Naga Peoples Movement for Human Rights and the Peoples Union for Democratic Rights also moved separate writ petitions on the same issue in 1982. However, the Supreme Court did not proceed in the matter for 15 years. In 1997, a five-member bench headed by Chief Justice J.S. Verma finally ruled on the petitions challenging the act. The various petitions were combined into the case of Naga Peoples Movement of Human Rights, etc. vs. Union of India.201
The Supreme Court upheld the Armed Forces (Special Powers) Act in its final verdict on November 27, 1997. However, while concluding that parliament had the right to enact such a law, the judges ordered measures for the protection of human rights, ruling that the armed forces should use minimal force required for effective action and strictly follow the instructions contained in the list of Dos and Donts issued by the army authorities which are binding.202
Leaving it to the armed forces to respect Dos and Donts issued by the army authorities has proven to be inadequate and ineffective.
The Supreme Court also said that any complaint alleging the misuse or abuse of powers conferred by the act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be granted.203
In practice, local police usually discourage victims from registering a case against the armed forces, or simply refuse to register such complaints. Efforts to investigate such complaints by the police, in any case, are usually futile since the armed forces use the immunity provisions of the AFSPA to refuse to produce the relevant officials for questioning.
The Jeevan Reddy committee
Following the widespread protests after the killing of Manorama in Manipur in 2004, Prime Minister Manmohan Singh agreed to a review of the AFSPA. A five-member Committee to Review the Armed Forces (Special Powers) Act, 1958, headed by Justice Jeevan Reddy, a retired Supreme Court judge, was set up on November 19, 2004.204 It came to be known as the Jeevan Reddy committee and was established to review the act and determine whether it should be amended to bring [its provisions] in consonance with the obligations of the Govt. towards the protection of Human Rights, or whether the government should replace the Act by a more humane Act.205
Various human rights groups, the concerned governments of the affected northeastern states, and representatives of the army and the paramilitaries, including the Assam Rifles, presented their views to the Jeevan Reddy committee. Suggesting that the authority and safeguards provided under the AFSPA should form the framework for any new law or amendment to the existing act, the army said that it requires adequate authority to conduct its operations:
The Ministry of Home Affairs told the committee that the armed forces and other forces provided by the central government would be progressively withdrawn from the north-east, once the capabilities of the State armed police are up to the required standards.207 The Assam Rifles and the Central Reserve Police Force both said that the continuing insurgency in the northeast required measures such as the AFSPA.
The Jeevan Reddy committee submitted its report to the Home Ministry on June 6, 2005.208 While the report has still not been made public, it was leaked and is widely available on the internet.209 It recommended that the act be repealed, concluding that:
The Jeevan Reddy committee recommended that while the AFSPA should be repealed, some provisions should be incorporated into the Unlawful Activities (Prevention) Act, 1967.211 The proposed amendments include a provision for an independent Grievances Cell to inquire into complaints of human rights violations, and a requirement that the commander or local headquarters of the unit or appropriate police authorities furnish relevant information to the Grievances Cell within 24 hours of receiving a request.212
Though the final report was submitted in June 2005, at this writing the government had not acted on its findings and recommendations.
Others that have recommended repeal of AFSPA
In June 2007, the Second Administrative Reforms Commission appointed by the president of India and headed by Veerappa Moily recommended that the AFSPA be repealed.213 Upholding the findings of the Jeevan Reddy committee, the Moily Commission said that the suggested revision of the Unlawful Activities (Prevention) Act:
Mohammad Hamid Ansari, chairman of the National Minorities Commission, was asked by Prime Minister Manmohan Singh to head the Working Group on Confidence-Building Measures in Jammu and Kashmir. In April 2007, the Working Group submitted its report, making several recommendations for the protection of human rights.215 The Working Group said that certain laws made operational during the period of militancy (for example the Armed Forces Special Powers Act or the Disturbed Areas Act) impinge on [the] fundamental rights of citizens and adversely affect the public and recommended that these laws be revoked.216 The recommendations of the working group were adopted in principle.217
173 Ministry of Home Affairs, Armed Forces (Special Powers) Act, 1958, http://www.mha.nic.in/acts-rules/armed_forces_special_powers_act1958.pdf (accessed April 20, 2008).
174 The Armed Forces (Special Powers) Act- Repressive Law, Combat Law: The Human Rights Magazine, vol. 2(1), April/May, 2003. Also Amnesty International, Document - India: Briefing on The Armed Forces (Special Powers) Act, 1958, ASA20/025/2005, May 9, 2005, http://www.amnesty.org/en/library/info/ASA20/025/2005 (accessed April 20, 2008).
175 Following the 1972 amendment, the AFSPA was extended to cover the states of Assam, Manipur, Meghalaya, Nagaland and Tripura and the Union Territories of Arunachal Pradesh.
176 Ministry of Home Affairs, Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983, http://punjabrevenue.nic.in/armsact.htm (accessed August 24, 2008).
177 Ministry of Home Affairs, Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, http://www.mha.nic.in/acts-rules/Armed%20forces%20_J&K_%20Spl.%20powers%20act,%201990.pdf (accessed April 20, 2008).
178 The Armed Forces (Special Powers) Act, sec. 3, provides if the governor of a state or the administrator of Union territory or the central government are of the opinion that the whole or any part of such State or Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers in necessary, the Governor of that State or the Administrator of that Union territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.
179 Armed Forces (Special Powers) Act, 1958, sec. 3 (Power to Declare Areas to be Disturbed Areas).
180 Asian Center for Human Rights, Review of AFPSA: Too Little, Too Late, November 3, 2004, http://www.achrweb.org/Review/2004/45-04.htm (accessed April 20, 2008).
181 Constitution of India, Article 246, to be read with the 7th Schedule of the Constitution of India.
182 Armed Forces (Special Powers) Act, 1958, sec. 6 (Protections to Persons Acting Under Act).
183 Armed Forces (Special Powers) Act, 1958, sec. 4 (Special Powers of the Armed Forces).
184 Asian Center for Human Rights, Review of AFPSA: Too Little, Too Late, November 3, 2004.
185 Human Rights Watch, India - Everyone Lives in Fear: Patterns of Impunity in Jammu and Kashmir, vol. 18, no. 11(C) , September 2006, http://www.hrw.org/reports/2006/india0906/index.htm, chapter V.
186 India: Investigate All Disappearances in Kashmir, Human Rights Watch news release, February 15, 2007, http://hrw.org/english/docs/2007/02/15/india15336.htm. See also Human Rights Watch, Everyone Lives in Fear,chapter IV, part E (Chattisinghpora massacre and ensuing killings).
187 Enforced disappearances are defined by the Convention against Enforced Disappearances as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the U.N. General Assembly on December 20, 2006, opened for signature on February 6, 2007, art. 2. Although the newly adopted convention has yet to enter into force, India has signed the convention and its definition of enforced disappearance is consistent with definitions contained in earlier international instruments.
188 Armed Forces (Special Powers) Act, 1958, sec. 5 (Arrested Persons to be made over to the Police).
189 Constitution of India, art. 22, states: 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.
190 Constitution of India, art. 22 (2), provides that: 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. However, AFSPA only recommends that a person be produced before a magistrate with the least possible delay, allowing security forces to hold people for days, even months, which courts have found be excessive. For example see Nungshitombi Devi v. Rishang Keishang, CM Manipur, 1982. In several habeas corpus cases, the Gauhati High Court has told the army to comply with the Code of Criminal Procedure, but there is no enforcement of these rulings.
191 See, e.g. ICCPR, art. 9, which guarantees liberty and the security of the person, states: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
192 Human Rights Watch interview with Babloo Loitongbam, Human Rights Alert, Imphal, February 24, 2008.
193 Armed Forces (Special Powers) Act, 1958, sec. 6 (Protection to Persons Acting Under Act).
194 Human Rights Watch, Everyone Lives in Fear, chapter IV, part E (Chattisinghpora massacre and ensuing killings).
195 Riyaz Wani, NBW Against 5 Army Personnel in Valley Encounter case, The Indian Express, April 3, 2008, http://www.indianexpress.com/story/291641.html (accessed April 22, 2008).
196 ICCPR, art. 2(3).
197 United Nations, Human Rights Committee, Concluding observations of the Human Rights Committee: India, Report of the Human Rights Committee, (United Nations, August 4, 1997) CCPR/C/79/Add.81, http://daccessdds.un.org/doc/UNDOC/GEN/G97/177/39/PDF/G9717739.pdf?OpenElement (accessed April 20, 2008).
199 Naga Peoples Movement of Human Rights, etc. vs. Union of India, Supreme Court of India, Final orders, Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84, November 27, 1997.
200 Unlawful Activities (Prevention) Amendment Act, 2004, http://www.commonlii.org/in/legis/num_act/uaaa2004438/ (accessed August 22, 2008).
201 Naga Peoples Movement of Human Rights, etc. vs. Union of India, Supreme Court of India, Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84.
202 Naga Peoples Movement of Human Rights, etc. vs. Union of India, Supreme Court of India, Final orders, November 27, 1997. The court said that the army should not be deployed for long periods since the primary task of the armed forces is to defend the country in the event of war or when it is faced with external aggression, and that an internal conflict puts the armed forces in a situation that brings them in confrontation with their countrymen. The judges concluded that prolonged or too frequent deployment of armed forces for handling such situation is likely to generate a feeling of alienation among the people against the armed forces.
204 Ministry of Home Affairs, Order issued on November 19, 2004. Copy on file with Human Rights Watch.
205 Terms of Reference of the Committee to Review the Armed Forces (Special Powers) Act, 1958.
206 Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, Government of India, 2005, chapter VIII (Views of Army, Assam Rifles, BSF, CRPF and State Governments).
208 Armed Forces (Special Powers) Act Review Committee Submits Report, Press Information Bureau, Government of India, June 6, 2005, http://pib.nic.in/release/rel_print_page.asp?relid=9607 (accessed April 21, 2008).
209 Report of the Committee to Review the Armed Forces (Special Powers) Act 1958, The Hindu , http://www.hinduonnet.com/nic/afa/ (accessed April 21, 2008).
210 Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, Government of India, 2005, part IV (Recommendations).
213 R. Suryamurthy, Moily Panel for Repeal of AFSPA, The Tribune, June 26, 2007, http://www.tribuneindia.com/2007/20070626/nation.htm#1 (accessed April 21, 2008).
214 Constitutional Issues and Special Laws, The Armed Forces (Special Powers) Act, 1958, Fifth Report, Second Administrative Reforms Commission, June 2007, p. 235-242. The Administrative Reforms Commission is appointed by the President under Resolution No. K-11022/9/2004-RC.
215 PMs Opening remarks at Third Roundtable Conference on Jammu & Kashmir, The Prime Ministers Office, April 24, 2007, http://pmindia.nic.in/speech/content.asp?id=529 (accessed April 21, 2008).
216 Praveen Swami, Bit of Consensus, Frontline, vol. 24, Issue 9, May 5-18, 2007, http://flonnet.com/fl2409/stories/20070518002902500.htm (accessed April 21, 2008).
217 Statement adopted at the Third Round Table Conference on Jammu and Kashmir, The Press Information Bureau, April 24, 2007, http://pib.nic.in/release/release.asp?relid=27105 (accessed April 21, 2008).