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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The maintenance of law and order is the responsibility of the state government under the Indian Constitution.¹⁸¹ As originally enacted, the power to declare an area to be “disturbed” was conferred only upon the state government.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:

[I]f he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is 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 of fire-arms, ammunition or explosive substances.”¹⁸³

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 military’s 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: 

No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act.¹⁹³

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 India’s treaty obligations under the ICCPR. Each state party to the ICCPR undertakes:

To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

To ensure that the competent authorities shall enforce such remedies.¹⁹⁶

In July 1997, the UN Human Rights Committee, the expert international body that monitors compliance with the ICCPR, considered India’s Third Periodic Report. In its Concluding Observations, the Human Rights Committee noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant.”¹⁹⁷ It went on to say that:

The Committee regrets that some parts of India remain subject to declaration as disturbed areas over many years. For example, the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer, and that in these areas, the State party is in effect using emergency powers without resorting to Article 4, paragraph 3, of the Covenant…. The Committee recommends that the application of these emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant.¹⁹⁸

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 People’s Movement for Human Rights and the People’s 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 People’s 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 “Do’s and Don’ts” issued by the army authorities which are binding.”²⁰² 

Leaving it to the armed forces to respect “Do’s and Don’ts” 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:

Such authority should cover actions involving entry and search without warrant, seizure of weapons and explosives, use of force including opening fire when needed, and destruction of armed camps and military stocks held by insurgent groups. The Army also requires adequate safeguards against spurious and motivated accusations of excesses leveled and legal proceedings commenced against its personnel. Such authority and legal safeguards are provided by the AFSPA.²⁰⁶

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 Act is too sketchy, too bald and inadequate in several particulars…. We must also mention the impression gathered by [the Committee] during the court of its work viz, the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness. It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go).²¹⁰

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:

incorporates the directions of the Supreme Court of India on the matter with regard to deployment of armed forces of the Union and the conduct of such armed forces during deployment. It also provides for a grievance redressal mechanism. Most importantly it does not in any way dilute or compromise the paramount importance of ensuring national security in these disturbed insurgency affected areas.²¹⁴

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