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Terrorism and Human Rights Laws: A Comment

There are many myths about the Armed Forces (Special Powers) Act. This note responds to two recent articles in EPW on this issue.


Terrorism and Human Rights Laws: A Comment

U C Jha

myths and realities related to the AFSPA are as follows.

Myth 1: AFSPA covers the entire north-east and the Jammu and Kashmir (J&K).

Reality: The AFSPA is applicable only in

There are many myths about the Armed Forces (Special Powers) Act. This note responds to two recent articles in EPW on this issue.

U C Jha ( has been a visiting fellow at the Centre for the Study of Law and Governance, JNU, New Delhi.

he two articles, “Terrorism and Human Rights: Indian Experience with Repressive Laws” by G Haragopal and B Jagannatham (11 July 2009) and “Armed Forces (Special Powers) Act: Urgency of Review” by A G Noorani (22 August 2009) are misleading.

This comment is restricted to the discussion on the Armed Forces (Special Powers) Act (AFSPA), referred as one of the repressive laws in India.

The authors have commented that “the AFSPA guarantees impunity…confers exemplary power…and the armed forces hardly realise while posted in sensitive a reas they (should) win over the people”. This article and many others in the last two decades have distorted the image of the Indian armed forces world over and created a feeling that they are accused of extra-judicial execution of innocent civilians, illegal imposition of curfew, rape, molestation and sexual harassment and torture under the powers vested in them by the AFSPA. Certain

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certain parts of the north-east and the J&K. For example, in Meghalaya, the A FSPA is applicable only in a 20 km range along the Assam border. In Arunachal Pradesh, the AFSPA is applicable in the two eastern districts of Tirap and Changlang, which have been declared as “disturbed area”. Same is the case with the J&K.

Myth 2: The armed forces get arbitrary power while functioning under the AFSPA.

Reality: The provisions of the AFSPA and the safeguards that accompany its imposition are intended to prevent the possibility of any arbitrariness in the exercise of power under the act. The provisions of the A FSPA can be applied only when (1) the central government is satisfied that the normal law and order situation has deteriorated to the extent that it can be considered a disturbed area; and (2) the state police force is not in a position to stop infiltration or undesirable forces. In the case of Naga People’s Movement of Human Rights vs Union AIR 1998 SC 431, the S upreme Court held that the powers

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Economic & Political Weekly


conferred on the o fficers and non-commissioned officers (NCOs) under AFSPA are not arbitrary and unreasonable, and are not violative of the provisions of Articles 14, 19 and 21 of the Constitution. Thus, there are ample safeguards to prevent the wanton abuse of power conferred by the AFSPA.

Myth 3: While operating under the AFSPA, the armed forces do not cooperate with the civil authorities.

Reality: The AFSPA also contemplates that in the event of the deployment of the armed forces, the said forces will operate in the state concerned in cooperation with the civil administration, so that the situation which has necessitated the deployment is dealt with more effectively and normalcy is restored faster. Even in a disturbed area, the civil law has to be followed. An order under Section 144 of the CrPC must be in force before the powers under Section 4 of the AFSPA can be exercised. Before exercising the powers under the act, a warning is required to be given to those who are violating the law. The military person exercising the powers is answerable for any breach in the policy d irectives issued by the army.

Myth 4: Drastic powers have been conferred on low-ranking officials like NCOs.

Reality: In the armed forces, a non- commissioned officer holds a responsible position. When troops are deployed, the sections/patrols, which go for search and patrolling operations, are commanded by a trained NCO. In isolated places/remote areas, while encountering insurgents, NCO is expected to take a decision as regards the suitable use of force in the particular situation, for which he is trained. We never question his capability in war or during the natural calamity.

Myth 5: The armed forces working under the AFSPA are biggest human rights violators and not accountable to the National Human Rights Commission (NHRC).

Reality: The Indian armed forces have by now established a proud and enviable record of compliance with the dictates of international standards, to which their military manual by and large conforms. The Indian

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armed forces have participated in about more than 70 United Nations peacekeeping missions. They have been lauded for their humane treatment of c ivilians the world over. Since, 1993, the NHRC has been actively monitoring the v iolations of human rights in the country. There have been a few cases of human rights violations by members of the armed forces, where the commission has directed the payment of compensation/interim r elief to the victims/next-of-kin of d eceased. The NHRC has also taken cognisance of the action taken by the armed forces against its members accused of h uman right violations.

Since March 1993, a human rights cell has been functioning in the army headquarters under the additional director general (discipline and vigilance). In the last 15 years, it has received more than 1,200 cases from the north-east and J&K for alleged violation of human rights. Only 54 cases have been found true, wherein 115 personnel have been punished and in 17 cases compensations have been awarded. The army has also extended all forms of assistance towards the rehabilitation of the victims. The legal machinery in the country has not shirked its responsibility in ensuring suitable action in cases where the law has been violated. The Supreme Court in Sebastian M Hongray AIR 1984 SC 1026, has awarded an exemplary fine on the government, where the government failed to produce two persons arrested by the armed forces.

Myth 6: AFSPA grants total immunity to the armed forces personnel.

Reality: The AFSPA does not grant immunity to the members of the armed forces. Section 6 of the AFSPA only requires that permission to be taken from the central government before prosecution. This does not amount to the granting of immunity to members of the armed forces. It does not suffer from arbitrariness as the order of the central government refusing or granting sanction under Section 6 is subject to judicial review. Section 6 of the AFSPA was reviewed in the case of Indrajit Barua vs Union of India AIR 1983 Del 513. The Delhi High Court justified this provision on the grounds that it prevents the filing of “frivolous claims”.

Myth 7: The AFSPA, by its form and application, violates the Universal Declaration

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of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

Reality: The Second Periodic Report u nder the ICCPR was submitted by India to the UN Human Rights Committee in March 1991. The committee pointed out that Section 4 of the AFSPA is incompatible with Articles 6, 9 and 14 of the ICCPR. In res ponse, the attorney general of India justified the AFSPA under Article 355 of the I ndian Constitution, which makes it the duty of the union to protect each state from external aggression. He said the A FSPA was necessary, given the context of the north-east, where there is “infiltration of aliens into the territories mingling with the local public, and encouraging them t owards this [secession]”, and, “that the ICCPR does not encourage secession and governments are not encouraged to p romote it”.

Myth 8: AFSPA is a symbol of oppression, an object of hate and an instrument of high-handedness.

Reality: The central government had appointed a five-member committee headed by the Supreme Court Judge B P Jeevan Reddy to examine whether the AFSPA is r equired. The government had neither accepted nor rejected the report which was submitted in 2005. The entire report has not been made public, but various non-governmental organisations have selectively quoted a portion of it (which was available on the web site of a prominent newspaper): “…for whatever reasons, [AFSPA] has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.

However, other portions of the report are never discussed: “...though an overwhelming majority of the citizen groups and individuals pleaded for the repeal of the Act, they were firmly of the view at the same time that the Army should remain to fight the insurgents.”

The armed forces need special legal protection and powers in the areas where they operate. Special legislation is necessary “from the point of view of morale and operational efficiency to protect the rights of soldiers”. While engaging in counter-insurgency operations, the Indian armed forces have been maintaining the principles of “minimum force” and avoidance of “collateral damage”.

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