KL NEWS NETWORK
SRINAGAR
In 1997, the constitutional validity of the AFSPA was challenged in the Supreme Court of India in the Naga People’s Movement of Human Rights vs. Union of India case.39 The Court, after hearing petitions challenging it, all filed in the 1980s and early 90s, upheld the constitutional validity of the AFSPA, ruling that the powers given to the army were not “arbitrary” or “unreasonable.”40 In doing so, however, the Court failed to consider India’s obligations under international law.
The Court further ruled that the declaration of an area as “disturbed” – a precondition for the application of the AFSPA – should be reviewed every six months. Concerning permission to prosecute, the Court ruled that the central government had to divulge reasons for denying sanction.
In 2005, a committee headed by B P Jeevan Reddy, a former Supreme Court judge, which was formed by the Supreme Court to review the Armed Forces (Special Powers) Act, 1958 after the alleged rape and murder of Thangjam Manorama Devi in Imphal, Manipur by security forces, said in its report that the law had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.”
In 2012, a committee headed by J S Verma, a former Chief Justice of India, was established by the central government to review laws against sexual assault, following the gang-rape of a young woman in Delhi. The committee said that sexual violence against women by members of the armed forces or uniformed personnel should be brought under the purview of ordinary criminal law. To ensure this, the committee recommended the AFSPA be amended to remove the requirement of sanction to prosecute from the central government for prosecuting security force personnel for crimes involving violence against women.
In interviews with the media, J S Verma said that sexual violence could not in any way be associated with the performance of any official task, and therefore should not need permission to prosecute from the government.
Although new laws on violence against women were passed in April 2013, including the removal of the need for sanction to prosecute government officials for crimes involving violence against women, the recommended amendment to the AFSPA was ignored.
In January 2013, a commission headed by N Santosh Hegde, a former Supreme Court judge, was appointed by the Supreme Court in response to a public interest litigation seeking investigation into 1,528 cases of alleged extrajudicial executions committed in Manipur between 1978 and 2010. The Commission was established to determine whether six cases randomly chosen by the court were ‘encounter’ deaths – where security forces had fired in self-defence against members of armed groups – or extrajudicial executions. It was also mandated to evaluate the role of the security forces in Manipur.
The Commission, whose report was submitted to the Supreme Court in April 2013, concluded that all the cases it had investigated involved “fake encounters” (staged extrajudicial executions). It also found that the AFSPA was widely abused by security forces in Manipur. Notably, it reported that only one request for sanction to prosecute a member of the Assam Rifles under Section 7 of the Act had been made since 1998.
The Justice Hegde Commission proposed that all cases of “encounters” resulting in death should be immediately investigated and reviewed every three months by a committee. It also recommended the establishment of a special court to expedite cases of extrajudicial killings within the criminal justice system, and that all future requests for sanction for prosecution from the central government be decided within three months, failing which sanction would be deemed to be granted by default.
In November 2014, the Vice-President of India in a speech noted that serious human rights violations – including extrajudicial executions, torture, and enforced disappearance – were particularly acute in areas such as Jammu and Kashmir. He stated that “serious complaints are frequently made about the misuse of laws like the Armed Forces (Special Powers) Act”, which “reflects poorly on the state and its agents.”
The AFSPA has also been subject recently to severe criticism by several independent United Nations human rights experts, including the Special Rapporteurs on violence against women; on extrajudicial, summary or arbitrary executions; and on the situation of human rights defenders.
Rashida Manjoo, the UN Special Rapporteur on violence against women, its causes and consequences, said in her official report to the UN Human Rights Council following her visit to India in April 2013 that the AFSPA “allows for the overriding of due process rights and nurtures a climate of impunity and a culture of both fear and resistance by citizens.” She called for the urgent repeal of the law.
Cristof Heyns, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, visited India in March 2012. In his report to the UN Human Rights Council, he stated that “the powers granted under AFSPA are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent.
“Moreover, the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict.” Calling for the repeal of the law, he said that “retaining a law such as AFSPA runs counter to the principles of democracy and human rights.”
Margaret Sekaggya, the UN Special Rapporteur on the situation of human rights defenders, who visited India in January 2011, also called for the AFSPA to be repealed in her report, and said that she was deeply disturbed by the large number of cases of defenders who claimed to have been targeted by the police and security forces under laws like the AFSPA.
On 14 November 2014, the former Minister of Home Affairs for India, P. Chidambaram, spoke out against AFSPA in the wake of two deaths by army firing in Budgam district a few days before, stating in media reports that the Ministry of Home Affairs had begun the process of amending the AFSPA in 2010, but were “stoutly resisted” by the Army authorities and Ministry of Defence.
“The AFSPA is an obnoxious law that has no place in a modern, civilized country. It purports to incorporate the principle of immunity against prosecution without previous sanction. In reality, it allows the Armed Forces and Central Armed Police Forces (CAPF) to act with impunity,” Chidambaram said. In May 2015, he wrote, “If there is one action that can bring about a dramatic change of outlook from Jammu and Kashmir to Manipur, it is the repeal of AFSPA, and its replacement by a more humane law.”
