19LLB005 Military Law Seminar Paper

TITLE OF THE SEMINAR PAPER
EXTRAORDINARY MILITARY POWERS AND RIGHT TO SELF DETERMINATION

IN KASHMIR
SUBJECT
MILITARY LAW
SUPERVISING FACULTY
DR. I. DURGA PRASAD
NAME AND ROLL NUMBER OF THE CANDIDATE

AYUSHMAN SOMANI
19LLB005
X SEMESTER
DAMODARAM SANJIVAYYA
NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

TABLE OF CONTENTS
CERTIFICATE ......................................................................................................................... 4
ACKNOWLEDGEMENT............................................................................................................. 5
ABSTRACT ............................................................................................................................. 6
OVERVIEW ............................................................................................................................. 7
THE ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT OF 1990 (AFSPA) .......... 8
ORIGIN ............................................................................................................................... 8
HISTORY ............................................................................................................................ 8
OUTLINE ............................................................................................................................ 9
INSTRUMENT OF ACCESSION TO INDIA ............................................................................. 9
ARTICLE 370 AND SPECIAL STATUS OF KASHMIR: ............................................................. 11
CONSEQUENCES OF MILITARY OPERATIONS IN OTHER COUNTRIES .................................... 12
THE ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT 1990 ............................... 13
INVOCATION OF THE ACT .................................................................................................. 13
EXTRAORDINARY MILITARY POWERS UNDER THE ACT ...................................................... 13
THE LOOPHOLES ........................................................................................................... 15
LEGAL IMMUNITY TO ARMED FORCES ........................................................................... 15
ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT 1990 AND OTHER LEGISLATIONS:
........................................................................................................................................... 17
RIGHT TO KILL ................................................................................................................. 17
ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT 1990 ............................... 17
INDIAN CONSTITUTION 1950 ......................................................................................... 17
INDIAN PENAL CODE 1860 ............................................................................................ 18
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1976 (‘ICCPR’) ................ 18
POWERS OF ARREST ......................................................................................................... 19
POWERS OF SEARCH AND SEIZURE .................................................................................... 20
DUTY UPON ARREST ......................................................................................................... 21
INDIAN CONSTITUTION 1950 ......................................................................................... 21
LEGAL IMMUNITY............................................................................................................. 22
INDIAN PENAL CODE ..................................................................................................... 23
CODE OF CRIMINAL PROCEDURE 1973 ........................................................................... 23
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (‘ICCPR’) 1966 ............. 23
SAFEGUARDS UNDER IPC AND CRPC ............................................................................. 24
COMPONENTS OF THE KASHMIRI RIGHT TO SELF-DETERMINATION ..................................... 25
CONSEQUENCES OF FAILURE TO REALIZE THE KASHMIRI RIGHT TO SELF-
THE
DETERMINATION ............................................................................................................... 27
PAST INTERVENTIONS .......................................................................................................... 27

ADMINISTRATIVE INTERVENTIONS .................................................................................... 27
JEEVAN REDDY COMMISSION ........................................................................................ 28
RECOMMENDATIONS OF THE COMMITTEE ...................................................................... 28
MOILY COMMISSION ..................................................................................................... 31
WORKING GROUP ON CONFIDENCE-BUILDING MEASURES IN JAMMU AND KASHMIR....... 31
JUSTICE VERMA COMMITTEE RECOMMENDATIONS 2013 ................................................ 31
NAGA PEOPLE’S MOVEMENT OF HUMAN RIGHTS V. UNION OF INDIA ................................. 32
COURT’S OBSERVATIONS AND RECOMMENDATIONS: ..................................................... 32
INDIA’S REPORT TO HUMAN RIGHTS COUNCIL .................................................................. 33
THE GANDHIAN APPROACH .................................................................................................. 35
ROLE OF JUDICIARY ............................................................................................................. 39
CONCLUSION ....................................................................................................................... 39
BIBLIOGRAPHY .................................................................................................................... 41
CERTIFICATE
This is to certify that the dissertation entitled Extraordinary Military Powers and Right to
Self Determination in Kashmir for the Seminar Paper on Military Law to Damodaram
Sanjivayya National Law University, Visakhapatnam is a record of original work done by
Mr. Ayushman Somani under my supervision and guidance to my satisfaction.
SIGNATURE OF THE GUIDE
Visakhapatnam
Date: 08.04.2024
ACKNOWLEDGEMENT
I am most humbly grateful to our faculty of Military Law, Dr. Durga Prasad for giving me the
opportunity to work on issue of “Extraordinary Military Powers And Right to Self
Determination in Kashmir”. It has indeed increased my interest in the subject manifold and
has honed my skills of research generally and specifically relating to Military Law. I am
obliged and overwhelmed by their effort in making this paper a success.
Last but not the least; I would like to express my indebtedness to my parents who were a
source of constant inspiration and an unyielding support in all my endeavours.
ABSTRACT
“ This dissertation examines the implications of the operation of the Armed Forces (Jammu &
Kashmir) Special Powers Act 1990 (“Act”) on Kashmir from human rights perspective. It
draws a comparison between the Act and the existing penal legislations in India. It proposes
that the Act should be repealed and actions of the armed forces should be governed by the
already existing penal legislations. It suggests amendment of similar state and central
legislations conferring immunity to the armed forces. The precondition of approval of the
Central Government for instituting a legal proceeding should be removed. It proposes
constitution of special grievance cells at district levels to adjudicate cases against the armed
forces before being referred to the higher courts. The dissertation urges the Indian
Government to approach the issue of Kashmir following principles of Ahimsa (“non–
violence”) and Satyagraha (“insistence on truth”) adopted by Mahatma Gandhi during the
Indian independence struggle. ”
OVERVIEW
“ My thesis ventures into the unanswered questions regarding the justification for continued
use of extraordinary military powers by the Indian government in the state of Jammu &
Kashmir since 1990. On 5th July 1990, the Government of India invoked Armed Forces
(Jammu & Kashmir) Special Powers Act, 1990 (“Act”) in order to fight growing insurgency
as well as cross border militancy from Pakistan. The Act was originally brought into force in
the North Eastern states of India in 1958 as Armed Forces (Special Powers) Act 1958 to deal
with insurgency situation there. ”
“ This Act has been in operation in Jammu & Kashmir for over two decades conferring
widespread extraordinary powers to the military in the state over the civilians. Rampant and
unaccountable use of the powers under the Act has resulted in numerous cases of human
rights abuse of the civilians in the hands of the armed forces. There are some important
questions that arise when analyzing the situation in Jammu & Kashmir. For how long can
these special legislations be allowed to supersede the inherent right to live without any fears?
”
“ In this thesis, I will try to analyze the Armed Forces (Jammu & Kashmir) Special Powers Act
1990 in the background of rampant human rights abuses against civilians by the armed forces
in Jammu & Kashmir. I will draw a comparison between the provisions of the Act and the
existing penal legislations operating in Jammu & Kashmir as well as international
legislations. My thesis will explore the Gandhian approach of fight for independence and
whether that approach can stillstand the test of time against insurgents, cross border militants
as well as the state’s armed forces in the ‘disturbed areas’ of India. ”
“ It proposes that the Armed Forces (Jammu & Kashmir) Special Powers Act 1990 should be
repealed in Kashmir and acts of the members of the armed forces should come under the
ambit of the already existing penal legislations. At the same time it is imperative to amend
the provisions of the existing legislations that confer immunity to the armed forces in cases of
misuse or abuse of powers. The requirement of approval of the Central Government before
instituting a legal proceeding against the armed forces should be done away with. Further,
there is a need to constitute special grievance cells at district levels to adjudicate such cases
against the armed forces before they are referred to the higher courts. ”
THE ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT OF 1990
(AFSPA)
ORIGIN
“ On May 22, 1958, the Armed Forces (Assam and Manipur) Special Powers Ordinance was
invoked by the North Eastern state of Assam to tackle the insurgent movement brewing in the
region to demand an independent state for the ‘Naga tribe’ out of Assam. This ordinance was
later adopted by the Indian parliament as a central legislation on September 11, 1958 to deal
with the anti-government uprising which had spread to other North Eastern states of India. 1
The North Eastern states that originally came under the operation of the act included
Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.In July
1990, this Act of 1958 was extended to the Kashmir region by introduction of The Armed
Forces (Jammu and Kashmir) Special Powers Act, 1990. The Armed Forces (Jammu and
Kashmir) Special Powers Act of 1990 (AFSPA)2 has been in force in Kashmir for more than
two decades now. The act gives absolute powers to the armedforces to arrest, search and
shoot, even to the extent of causing death based on a mere suspicion of commission of certain
offences. With the authority to arrest without warrant, blatant human rights violations have
become the order of the day. ”
HISTORY
“ The operation of the Armed Forces Act in Kashmir and the consequent social uprising
amongst the people can be directly traced back to the historical events that took place at the
time of Indian independence and eventual partition into two separate states in 1947, India and
Pakistan. The Kashmir conflict is a territorial dispute between India and Pakistan over
Kashmir region. The two states have fought atleast three wars in the past over this territorial
dispute. India claims the entire state of Jammu and Kashmir and administers approximately
43% of the region. Pakistan administers control on over 37% of the region and calls it ‘Azad
Kashmir’.3 There is also a part of Kashmir region, called Aksai Chin, which was acquired by
China during the 1963 war. China states that Aksai Chin is a part of China and does not
1
Armed Forces (Special Powers) Act 1958, Act No. 28 of 1958
2
Armed Forces (Jammu and Kashmir) Special Powers Act 1990 (No. 21 of 1990).
3
Salah Uddin Shoaib Choudhury ,"Pakistani Rogue Policy on Kashmir" (8 October 2010) Sri Lanka Guardian.
recognize the addition of Aksai Chin to the Kashmir region. Regardless of the territorial
claims of India, Pakistan and China, there are various Kashmiri independence groups within
the state of Jammu & Kashmir that believe Kashmir should be independent of both India and
Pakistan. ”
OUTLINE
“ The first chapter of the thesis includes an introduction to the thesis and explains the situation
in Kashmir with respect to human rights under the operation of Armed Forces (Jammu &
Kashmir ) Special Powers Act 1990 (“Act”). The second chapter presents the historical
background of the Act and its invocation in Jammu and Kashmir in 1990. Chapter three lays
provides a critical analysis of the provisions of the Act. Chapter four reviews the extent of
violence and human rights abuses caused by the armed forces under the unfettered powers of
the Act. Chapter five lays down a comparative analysis of the Act against the existing
legislations as well as the international conventions India is signatory to. Chapter six studies
the past interventions initiated by the Indian government as well as the Supreme Court of
India’s judgment with respect to the 3 validity of the Act . Chapter seven attempts to find a
possible solution by comparing the existing situation in Kashmir to the Indian independence
movement against the British government and analyzes the role of Mahatma Gandhi in the
independence movement through his principles of non violence and self determination. It
endeavors to find feasible and peaceful means of resolution of the social uprising in Kashmir
by taking lessons from the political strategies adopted by Mahatma Gandhi during Indian
independence. Chapter eight explores the role of judiciary in addressing the issue by ensuring
accountability against the members of armed forces responsible for such violations. ”
Instrument of Accession to India
“ During the time of partition of British India into two dominions, India and Pakistan in 1947,
there also existed 565 princely states that were not part of the British rule directly but were
tied to it in a system of subsidiary alliances. As these were not a part of the British India, the
British government could not decide as to which dominion these princely states should annex
to between India and Pakistan or whether to stay independent. Under the Indian
Independence Act 19474 , the suzerainty of the British government over the princely states
would get terminated effective 15 August 1947 after which the princely states would become
completely independent unless the rulers of the princely states decide to be a part of either of
4
Indian Independence Act 1947 (10 & 11 Geo 6 c. 30).
the dominions, India or Pakistan. Hence an instrument of accession was designed to be signed
by the Government of India and the rulers of each of the princely states who were willing to
be a part of India. Before partition, theprincely states had been dependent on India for matters
related to defense, and finance. Understandably, many of these princely states decided to be a
part of India after partition.5 ”
“ Initially, after the partition, the Maharaja of Kashmir wanted to constitute a separate state of
Kashmir. However, Pakistan expected Kashmir to be Kashmir to be annexed to Pakistan as
the majority population in the state was of Muslims. Fearing that the Hindu Maharaja may
decide instead to annex with India, Pakistan resorted to aggressive measures of conducting
armed invasions to acquire control over the regions. This led to grave communal violence in
the region where minorities were targeted.6 The Maharaja initially fought back, but later
requested India’s assistance which agreed on the condition that ruler accedes to India. 7 The
Maharaja of Kashmir, Raja Hari Singh, signed the Instrument of Accession to be a part of
India on 25 October 1947.8 That was accepted by the government of India on 27 October
1947.9 This started a series of conflicts between Pakistan and India as well as the Kashmiri
revolutionaries seeking independence. ”
“ Later India requested United Nations intervention with respect to the Kashmir issue. The UN
passed a resolution under which both India and Pakistan were required to vacate the areas
they had occupied and hold a referendum under UN observation.10 ”
“ The holding of plebiscite was initially supported by India but subsequently India dismissed
the requirement due to various concerns with respect to the demography of the region as well
as the fact that the 1952 elected Constituent Assembly of Jammu and Kashmir voted in
favour of confirming the Kashmir region's accession to India.11 There had been huge
demographic changes in both Pakistan administered Kashmir as well as Jammu & Kashmir
State of India after the 1947 Partition. Pakistan had allowed generations of Pakistani
5
Indian Independence Act 1947, 1947 Chapter 30 10 and 11 Geo 6,
online:http://www.legislation.gov.uk/ukpga/Geo6/10-11/30
6
Quick guide: Kashmir dispute", BBC News (29 June 2006),
online:http://news.bbc.co.uk/2/hi/south_asia/5030514.stm.
7
Stein, Burton. 1998. A History of India. Oxford University Press. 432 pages. ISBN 0-19-565446-3. Page 368
8
Interview of Field Marshal Sam Manekshaw, online: http://www.rediff.com/freedom/0710jha2.htm .
9
“Death in the Vale”, Time, 10 November 1947, online:
http://www.time.com/time/magazine/article/0,9171,793895,00.html.
10
UN Security Council, Resolution 91 (1951)of 30 March 1951, 30 March 1951, S/RES/91 (1951)
11
United Nations High Commissioner for Refugees, "With Friends Like These...": Human Rights Violations in
Azad Kashmir” online:
http://www.refworld.org/cgibin/texis/vtx/rwmain?page=country&category=&publisher=HRW&type=COUNTR
YREP&coi=PAK&rid=&docid= 4517b1a14&skip=0
individuals non-native to the region to take residence in Pakistan-administered Kashmir.12
Furthermore, demographics of the Kashmir Valley in the Jammu & Kashmir state of India
had also been altered after separatist militants coerced 250,000 Kashmiri Hindus to leave the
region.13 Moreover, Pakistan failed to withdraw its troops from the Kashmir region as was
required under the same U.N. resolution which discussed the plebiscite. ”
“ Disputes on the results of the 1987 State legislative assembly elections in Kashmir resulted in
the formation of militant wings and consequent insurgent activities in the region in 1989.
14
Consequently, in 1990, India introduced the Armed Forces (Jammu & Kashmir) Special
Powers Act in Kashmir. ”
“ India contends that the insurgency was largely started by Pakistan supported Afghan
Mujahedeen who entered the Kashmir valley following the end of the Soviet-Afghan war.
Pakistan claims these insurgents are Jammu and Kashmir citizens, and are rising up against
the Indian army in an independence movement. ”
“ Amnesty International accused security forces in Indian-controlled Kashmir of exploiting the

draconian Armed Forces Act that enables them to "hold prisoners without trial". The group
argues that the law, which allows security to detain individuals for as many as two years
"without presenting charges, violating prisoners’ human rights".
“ In 2011, the State Human Right Commission said it had evidence that 2,156 bodies had been
buried in 40 graves over the last 20 year.15 Though the security forces claimed that most of
these bodies were those of militants from outside India including terrorist groups from
Pakistanadministered Kashmir and Afghanistan, according the Commission’s report, among
the identified bodies, at least 574 were those of "disappeared locals".16 ”
ARTICLE 370 AND SPECIAL STATUS OF KASHMIR:
12
13
Shyam Kaul; Onkar Kachru, Jammu, Kashmir, Ladakh: ringside views, (1 January 1988) ISBN 978-81-85495-
51- 4.
14
15
25 Caitlin Huey, “Amnesty International cites Human Rights Abuses in Kashmir” (28 March 2011) online:
http://www.usnews.com/news/articles/2011/03/28/amnesty-international-cites-human-rights-abuse-in-kashmir
16
Ibid
“ Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and
Special provisions, Kashmir has been accorded a special status under Article 370. As per this
Article, though Jammu and Kashmir is a constituent State of the Indian Union, no law
enacted bythe parliament of India, except for those mentioned in the instrument of accession
including in the field of defense, communication and foreign policy will be extendable in
Jammu and Kashmir unless it is ratified by the state legislature of Jammu and Kashmir.
Though the fundamental rights enshrined in the Indian Constitutions are applicable to
Kashmir, fundamental duties and directive principles of state policy do not apply in the
region. Thus the state's residents lived under a separate set of laws, including those related to
citizenship, ownership of property, as compared to other Indians. The Indian Penal Code is
known as Ranbir Penal Code in Jammu & Kashmir.17 However the jurisdiction of the
Supreme Court of India had been extended over to Jammu and Kashmir. ”
CONSEQUENCES OF MILITARY OPERATIONS IN OTHER COUNTRIES
“ Countries across the globe have from time to time enacted various laws and regulations to
bring about social control in regions declared as ‘disturbed areas’ or under emergency
situations.18 These countries believe that militarization or surrendering control of the region
to the army would help in bringing about social order.19 For example, in 2005 the Sri Lankan
government in order to combat an insurgent group, Liberation Tigers of Tamil Eelam (LTTE)
launched its military campaign paralyzing the investigative and prosecution powers of the
executive and thejudiciary. The security forces conducted large indiscriminate arrests of
Tamils under emergency regulations. What followed was the government’s more brutal and
indiscriminate counterinsurgency campaign.20 The government gave authority to its law
enforcement officers to commit extra-judicial killings by removing laws relating to autopsies,
and reporting of all suspicious deaths to courts. This resulted in an official figure of 30,000
disappearances in the south regions alone and large numbers in the North too. 21In Malaysia,
during the operation of the Internal Security Act (ISA) in 1960, thousands of civilians,
including trade unionists, student leaders, labour activists, politicians, academicians, non –
government organizations (‘NGO’) activists and members of religious groups, were arrested
17
http://www.ipc.in/ 3
18
Human Rights Watch, “Uniform Impunity: Mexico’s Misuse of Military Justice to Prosecute Abuses in
Counternarcotics and Public Security Operations” (2009).
19
Thailand: Arbitrary Detention and Harassment Under The Emergency Decree In Thailand”, (2010) Asian
Legal Resource Centre (ALRC), Human Rights Council Fifteenth Session, Agenda Item 4.
20
Human Rights Watch, “Sri Lanka: Country Summary” (January 2012).
21
Human Rights Watch, “War on the Displaced: Sri Lankan Army and LTTE Abuses Against Civilians in the
Vanni” (February 2009).
and detained without trial for indefinite periods. The ISA provided for "preventive" detention
without charge or trial, solely on the basis of the opinion of the Minister for Home Affairs
that the detention is necessary in order to safeguard the security of the nation.22 ”
“ Similarly, after assuming powers in Egypt23, The Supreme Council of the Armed Forces (the
SCAF), arbitrarily restricted people’s right to freedom of expression, association and
assembly prohibiting any form of protest or debates on social or political issues. The military
courts have imprisoned thousands of civilians.24 ”
THE ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT 1990
INVOCATION OF THE ACT
“ Under the Constitution of India, the power and obligation of the state government to maintain
public order is incorporated in Entry 1 of State List in the Seventh Schedule to the
Constitution. However, the said entry read with Entry 2A of the Union List means that –
“(a) where the State Government finds that it is not able to maintain public order and it is of
the opinion that the aid of the armed forces / forces under the control of the Union is
necessary for maintaining or restoring the public order, it can request the Union Government
to send the armed forces to maintain and restore the public order;
(b) even where the State Government does not so request but the Union Government is
satisfied that for protecting the State from "internal disturbance" i.e. to save it from domestic
chaos or internal commotion, it is necessary to deploy armed forces of the Union, it can do so
under Art.355.25 ”
EXTRAORDINARY MILITARY POWERS UNDER THE ACT
22
“Are such otherwise illegal acts allowed under international law?”, Human Rights Correspondence School,
Asian Human Rights Commission, online: http://www.hrschool.org/doc/mainfile.php/lesson16/218/.
23
Human Rights Watch, “Egypt: Country Report” (2012)
24
Human Rights Watch, “Egypt: Military Impunity for Violence Against Women, Whitewash in Virginity Tests
Trial” (April 2012).
25
Justice B.P. Jeevan Reddy, “Report of the Committee to Review Armed Forces (Special Powers) Act of
1958”, (June 2005) online: http://www.hindu.com/nic/afa/
“ According to Section 4 of the Armed Forces (Jammu & Kashmir) Special Powers Act 1990,
in an area that is proclaimed as "disturbed", an officer of the armed forces, including even a
non – commissioned officer26, has powers to:27
a. After giving such due warning, shoot to the extent of causing death, on the basis of a mere
suspicion that person is acting against law or order in the disturbed area28,
b. Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training
camp from which armed attacks are or may be committed by the armed volunteers or armed
gangs or absconders wanted for any offence29
c. To arrest without a warrant anyone who has committed cognizable offences or is

reasonably suspected of having done so and may use force if needed for the arrest30
d. To enter and search any premise in order to make such arrests, or to recover any person
wrongfully restrained or any arms, ammunition or explosive substances and seize it 31
e. Stop and search any vehicle or vessel reasonably suspected to be carrying such person or
weapons32 ”
“ As per Section 6 of the Act, “Any person arrested and taken into custody under this Act and
every property, arms, ammunition or explosive substance or any vehicle or vessel seized
under this Act, shall be made 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, or
as the case may be, occasioning the seizure of such property, arms, ammunition or explosive
substance or any vehicle or vessel, as the case may be.”
“ 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 are filed with the police,
constructing what is commonly known as a fake encounter. 33 ”
26
The Armed Forces (Jammu and Kashmir) Special Powers Act 1990, Section 4.
27
The Armed Forces (Jammu and Kashmir) Special Powers Act 1990.
28
The Armed Forces (Jammu and Kashmir) Special Powers Act 1990, Section 4(a).
29
The Armed Forces (Jammu and Kashmir) Special Powers Act 1990, Section 4(b)
30
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 4(c).
31
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 4(d)
32
The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 4(e).
33
Human Rights Watch, “These Fellows Must be Eliminated” – Relentless Violence and Impunity in Manipur”
(September 2008) at page 61.
Powers under the Act have also been routinely abused by the armed forces amid allegations
of enforced disappearances. The power to arrest without warrant also leads to increased risk
of torture or extrajudicial execution.34 ”
The loopholes
“ The Act however does not stipulate what a ‘least possible delay’ implies. There are no
provisions to provide guidelines as to what an unreasonable delay would be in a particular
circumstance. This leaves the whole requirement of presenting the arrested person or the
seized property before the officer –in –charge, as toothless. ”
“ Furthermore, Section 4 (a) not only authorizes to arrest without warrant, but also authorizes
the armed forces to shoot to the extent of causing death even in the event of a suspicion of
commission of an offence as described under the Act. If this authorization is studied in light
of the requirement to present the arrested person before an officer-in-charge with ‘least
possible delay’ under Section 6 of the Act, it explains why armed forces would be more
inclined towards shooting the suspect dead under the veil of an encounter rather than bringing
them to the police station exposing themselves to procedural inquiries. ”
Legal Immunity to Armed Forces
“ Under Section 7 of the Act35, “No prosecution, suit or other legal proceeding shall be
instituted, except with the previous sanction of the Central Government, against any person
inrespect of anything done or purported to be done in exercise of the powers conferred by this
Act.”
“ The above provision makes clear that army officers have legal immunity for their actions
under the Act. There can be no prosecution, suit or any other legal proceeding against anyone
acting under that law, except with previous sanction of the Central government.36 Nor is the
government's judgment on why an area is found to be disturbed subject to judicial review.37
As of 2011, there were no clear records available of acts committed by the armed forces
under the AFSPA.38 ”
34
Ibid.
35
The Armed Forces (Jammu and Kashmir) Special Powers Act 1990, Section 7
36
Ibid.
37
“Armed Forces Special Powers Act: A study in National Security tyranny”, South Asia Human Rights
Documentation Centre, online: http://www.hrdc.net/sahrdc/resources/armed_forces.htm.
38
U.S. Department of State, “Country Report on Human Rights Practices for 2011”, online:
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186463
“ This provision provides blanket impunity to the armed forces against any charges of human
rights abuses. Considering the sweepings powers the armed forces is vested with respect to
the authority over life and freedom of civilians and the lethal nature of these powers operative
for more than 20 years in the state, it is a complete violation of human rights as well as the
fundamental rights of the civilians of Kashmir to be barred from instituting legal proceedings
in a court of law against the injustices inflicted on them. The option of sanction from Central
Government is nothing more than a mirage. This requirement makes accountability almost
completely out of bounds for the civilians. Where the armed forces are vested with
responsibilities of the highest order to protect the state against security threats and maintain
public peace and order, this should however not act as a shield against accountability at the
cost of the lives and fundamental rights of the civilians. ”
“ This provision, allegedly necessary to protect the armed forces from undue harassment,
displays a complete lack of faith in the judiciary. Judiciary has been vested with the authority
to decide whether any charges are vexatious, abusive, or frivolous. While the judiciary is
deemed capable of making such decisions in cases involving ordinary citizens, armed forces
are given special status and provided immunity from prosecution, leaving victims of abuses
without any remedy.39 ”
“ Although the Central Government may waive immunity under the act to permit a prosecution
on a case by case basis, this provision is still routinely used to protect members of the armed
forces who have been found responsible for serious crimes. For example, in the year 2000,
the Central Bureau of Investigation (CBI) charged five soldiers responsible for the murder of
villagers in Kashmir in what the army claimed was an armed encounter with Pakistan-based
militants. As per CBI’s investigations, the victims had been deliberately abducted and
murdered by the soldiers, and thus murder charges could be filed in this case. 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.40 ”
“ 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,
39
Human Rights Watch, “These Fellows Must be Eliminated” – Relentless Violence and Impunity in Manipur
(September 2008).
40
Human Rights Watch, “Everyone Lives in Fear,” chapter IV, part E.
the army hasrefused to produce the soldiers for trial.41 This is another example of unfair
impunity against all criminal charges under the Act. ”
ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT 1990 AND
OTHER LEGISLATIONS:
“ The Armed Forces (Jammu & Kashmir) Special Powers Act 1990 allows the authorities to
detain a person for an unspecified amount of time, and thus without review by a magistrate.
Under Article 22 (2) of the Indian Constitution, 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.42 ”
RIGHT TO KILL
Armed Forces (Jammu & Kashmir) Special Powers Act 1990
“ Under Section 4(a) of the Armed Forces (Jammu & Kashmir) Special Powers Act 1990, any
commissioned officer, warrant officer, non-commissioned officer or any other person of
equivalent rank in the armed forces has the authority to shoot a person, even to the extent of
cause death if the officer based on a mere suspicion that the person is acting against any law
for the time being in force in the state. ”
“ This provision blatantly violates the fundamental right to life guaranteed and forming the
basic structure of the Indian constitution. Neither the constitution of India nor any other
central or state legislation authorizes killing a person except in circumstances like self
defense43 or mistake of fact to be bound by law.44 ”
Indian Constitution 1950
41
Human Rights Watch, “These Fellows Must be Eliminated” – Relentless Violence and Impunity in Manipur,
(September 2008) at page 63
42
Constitution of India 1950, Art. 22 (2).
43
Indian Penal Code 1860, Section 100
44
Indian Penal Code 1860, Section 76.
“ Article 21 of the Constitution expressly declares that no person shall be deprived of his life or
personal liberty except in accordance with the procedure established by law. It has time and
again reiterated that ‘procedure established by law’ means a fair and unbiased procedure. ”
Indian Penal Code 1860
“ The Indian Penal Code does not specifically provide any provision conferring a right to open
fire except when a person is bound by law or believes himself to be bound by law as a
mistake of fact.45
Also under Section 100 of the Indian Penal Code, “a person’s right to self defense extends to
causing death when;
First- Such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault;
Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
Thirdly- An assault with the intention of committing rape;
Fourthly- An assault with the intention of gratifying unnatural lust;
Fifthly- An assault with the intention of kidnapping or abducting;
Sixthly- An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to the
public authorities for his release.
Except the above mentioned provisions, the Indian Penal Code does not authorize killing a
person acting in contravention of law.
Authorization to kill coupled with the legal immunity against any legal proceedings under the
Armed Forces (Jammu & Kashmir) Special Powers Act 1990, gives armed forces a license to
kill which could be used either to escape accountability or to fabricate fake encounters. ”
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1976 (‘ICCPR’)
“ India ratified the ICCPR on 10th April 1979 and is bound by the provisions of the covenant
under the international law.
45
Indian Penal Code 1860, Act No XLV of 1860
Article 6(1) of ICCPR states that “Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his life.”
As per Article 7 prohibits any act of torture or cruel, inhuman or degrading treatment or
punishment against any person.”46
Article 4 of the Convention stipulates that even in the event of a public emergency, the State
Parties shall not derogate from Article 6 and 7 of the Covenant.
It is very clear that Section 4 (a) of the Armed Forces (Jammu & Kashmir) Special Powers
Act 1990 violates the principles of right to life both under the Indian constitution as well as
the international covenants. ”
POWERS OF ARREST
“ Power to arrest as provided under the Armed Forces (Jammu & Kashmir) Special Powers Act
1990 is a very loosely construed provision. On the other hand comparable provisions
authorizing arrests without warrant are included in existing penal legislations like the Indian
Penal Code. Providing a separate and vaguely construed legislation for a disturbed area like
Kashmir indicates that the government of India is not interested in approaching violence
situations in Kashmir in the same manner as in any other state of the country. It is required
that Kashmir be governed by the same penal legislations as any other state in India. ”
“Section 4(c) - Any commissioned officer, warrant officer, non commissioned officer or any
other person of equivalent rank in the armedforces may, in a disturbed area - arrest, without
warrant, any person who has committed a cognizable offence or against whom a reasonable
suspicion exists that he has committed or is about to commit a cognizable offence and may
use such force as may be necessary to effect the arrest;”
Section 41 and 42 – Power to Arrest without Warrant
Section 41 - When police may arrest without warrant –
“(1) Any police officer may without an order from a Magistrate and without a warrant, arrest
any person- (a) who has been concerned in any cognizable offence, or against whom a
46
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United
Nations, Treaty Series, vol. 999, p. 171
reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been so concerned; or (b) who is in possession any
implement of house-breaking without lawful excuse; or (c) who is a proclaimed offender (d)
whose is in possession of a stolen property and is suspected of having committed an offence
with reference to such thing; or (e) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is a
suspected deserter from any of the Armed Forces of the Union; or (g) who has been
concerned in, or against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists, of hishaving been concerned
in, any act committed at any place out of India which, if committed in India, would have been
punishable as an offence, and for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a
released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the offence
or other cause for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the requisition.”
Section 42. This section authorizes the police officer to arrest a person accused of committing
a non-cognizable offence on refusal to give name and residence ”
POWERS OF SEARCH AND SEIZURE
“ Section 4(d) :Any commissioned officer, warrant officer, non commissioned officer or any
other person of equivalent rank in the armed forces may, in a disturbed area-
enter and search without warrant any premises to make any such arrest as aforesaid or to
recover any person believed to be wrongfully restrained or confined or any property
reasonably suspected to be stolen property or anyarms, ammunition or explosive substances
believed to be unlawfully kept in such premises and may for that Purpose use such force as
may be necessary. ”
Section 47 - Search of place entered by person sought to be arrested.-

“ (1) If any person acting under a warrant of arrest, or any police officer having authority to
arrest, has reason to believe that the person to be arrested has entered into, or is within, any
place, any person residing in, or being in charge of, such place shall, on demand of such
person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all
reasonable facilities for a search therein. ”
“ (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any
case for a person acting under a warrant and in any case in which a warrant may issue, but
cannot be obtained without affording the person to be arrested an opportunity of escape, for a
police officer to enter such place and search therein, and in order to effect an entrance into
such place, to break open any outer or inner door or window of any house or place, whether
that of the person to be arrested or of any other person, if after notification of his authority
and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance; ”
“ (3) Any police officer or other person authorised to make an arrest may break open any outer
or inner door or window of any house or place in order to liberate himself or any other person
who, having lawfully entered for the purpose of making an arrest, is detained therein.”
Section 52 - Power to seize offensive weapons.-
“ The officer or other person making any arrest under this Code may take from the person
arrested any offensive weapons which he has about his person, and shall deliver all weapons
so taken to the Court or officer before which or whom the officer or person making the arrest
is required by this Code to produce the person arrested. ”
“ Where the Indian Penal Code requires the officer to first demand ingress into a place to
search or arrest a person, and only when the ingress is not allowed, to forcefully enter the
premises, the Armed Forces (Jammu & Kashmir) Special Powers Act 1990, on the other hand
allows the armed forces to directly enter the premises without first requesting a peaceful
ingress. This provision allows unnecessary use of force by the armed forces. Where under the
Indian Penal Code, power to conduct search and seizure is conferred only to a person under
warrant or to an officer authorized to arrest, such power is conferred even to a non-
commissioned officer under the Armed Forces (Jammu & Kashmir) Special Powers Act
1990. ”
DUTY UPON ARREST
Indian Constitution 1950

“ Unlike Article 22 (1) of the Indian constitution, the Armed Forces (Jammu & Kashmir)
Special Powers Act 1990 does not require an arrested person to be informed of the grounds
for his arrest nor is he guaranteed a right to consult and be defended by a legal practitioner.
Article 22 (2) of the Indian Constitution requires that 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.”47
“ Armed Forces (Jammu & Kashmir) Special Powers Act 1990 on the other hand requires that
arrested persons and seized property be made 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 or seizure as the case may be. ”
“ There is no requirement to produce the arrested person before a magistrate nor does the
provision clearly indicate what ‘least possible delay’ implies. It’s questionable that where
arrested persons in any other state of India have access to some basic safeguarding rights
uponarrest, arrested persons in Kashmir are denied such rights. With this huge gap in
accountability, this raises concerns over the credibility of arrests made by the armed forces in
Kashmir and the treatment meted out to the civilians. ”
LEGAL IMMUNITY
“ As for conferring legal impunity to the armed forces, both the Armed Forces (Jammu &
Kashmir) Special Powers Act 1990 as well as legislations like the Indian Penal Code and the
Code of Criminal Procedure consists of provisions which make it almost impossible for the
civilians to file a legal proceeding against a member of the armed forces leading to rampant
human rights abuses. ”
Sec. 7 of the Armed Forces (Jammu & Kashmir) Special Powers Act 1990 provides that –
“No persecution, suit or other legal proceeding shall be instituted, except with the previous
47
Constitution of India, Art. 22 (2).
sanction of the Central Government, against any person in respect of anything done or
purported to be done in exercise of the powers conferred by this Act. ”
Indian Penal Code
“ Section 45 - “Protection of members of the Armed Forces from arrest.- (1) Notwithstanding
anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of
the Union shall be arrested for anything done or purported to be done by him in the discharge
of his official duties except after obtaining the consent of the Central Government…”
Code of Criminal Procedure 1973
“ Section 197 (1) of the Code of Criminal Procedure provides legal impunity to Judges and
public servants acting or purporting to act in discharge of their official duty,
As per Section 197 (2),
“ No Court shall take cognizance of any offence alleged to have been committed by any
member of the Armed Forces of the Union while acting or purporting to act in the discharge
of his official duty, except with the previous sanction of the Central Government. ”
“ Thus, with regards to conferring blanket protections to the armed forces, Armed Forces
(Jammu & Kashmir) Special Powers Act 1990 is not a standalone legislation.Both, Section 7
of the Armed Forces (Jammu & Kashmir) Special Powers Act 1990 as well as Section 197(2)
of the Code of Criminal Procedure violate the basic right to equality of the people of
Kashmir. ”
Though legal impunity is important for the armed forces in discharge of their duties, blanket
impunities without any mechanism for accountability encourages irresponsible and
widespread violations of the human rights of the people residing in the regions rather that
facilitate achieving the purpose of such legislation. ”
International Covenant on Civil and Political Rights (‘ICCPR’) 1966
Article 2(3) of the ICCPR obligates State Parties to
“ a) 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;
“ b) 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;
“ c) To ensure that the competent authorities shall enforce such remedies.”
Even though India is a signatory to the ICCPR and is bound by Article 2(3) of the Covenant,
none of the central or state legislations provide any provisions with respect to judicial
proceedings against the acts committed by members of armed forces. It is important that there
be some kind of judicial accountability of the acts of the armed forces either by way of
constituting grievance cells at the district level and an eventual access to the superior courts. ”
Safeguards under IPC and CrPC
“ Where the Armed Forces (Jammu & Kashmir) Special Powers Act 1990 as well as the other
existing legislations have various similar provisions with respect to arrest, search and seizure
operations, the legislations like Indian Penal Code 1860 and Code of Criminal Procedure
1973 cover the loopholes that exists in the Armed Forces (Jammu & Kashmir) Special
Powers Act 1990 by way of its exhaustive safeguarding provisions. There are various
provisions under the Criminal Procedure Code (CrPC) as well as the Indian Penal Code (IPC)
that ensure that procedural safeguards are followed by the security forces on an arrest as well
as during custody of a person. ”
“ Sections 330 and 331 of the Indian Penal Code forbid the causing of ‘hurt’ or ‘grievous hurt’
to extract a confession, and prescribe prison terms and fines for officers found guilty of
torture.48 The Code of Criminal Procedure also contains clauses to protect detainees from
torture under Section 54, which provides the right to a medical examination. Section 164
requires a magistrate to ensure that a confession is voluntary whereas Section 176, which
requires a magisterial inquiry into any death in custody.49 ”
“ The Supreme Court of India laid down extensive guidelines for the police personnel for the
protection of arrestees under police custody in the case of D.K. Basu v. State of West
Bengal.50 As per the court guidelines, all police personnel involved in arrests and
interrogations should display accurate and clear identification; a register should be created to
48
Indian Penal Code 1860, Sections 330 and 331
49
Code of Criminal Procedure 1974, Act No. 2 of 1974.
50
D K Basu v. State of West Bengal, AIR 1997 SC 610.
record the names of those responsible for individual interrogations; and the arrestee should be
subjected to a medical examination at the time of arrest to record all major or minor injuries,
and then subjected to further examinations every 48 hours during detention.51 ”
The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions
summarized the impunity and extra-judicial executions in her report to the 57th session of the
United Nations Commission on Human Rights by saying that:
“Impunity for human rights offenders seriously undermines the rule of law, and also widens
the gap between those close to the power structures and others who are vulnerable to human
rights abuses. In this way, human rights violations are perpetuated or sometimes even
encouraged, as perpetrators feel that they are free to act in a climate of impunity. .....,
extrajudicial killings and acts of murder may sometimes also go unpunished because of the
sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice
against such groups are often used as justification of these crimes.”
It was further stated that –
“The increasing difficulties in securing justice alienate the people from the State and may
drive them to take the law into their own hands, resulting in a further erosion of the justice
system and a vicious circle of violence and retaliation. If unaddressed, such situations may
easily degenerate into a state of anarchy and social disintegration. Human rights protection
and respect for the rule of law are central to lasting peace and stability. It is, therefore,
crucial that conflict prevention strategies and post-conflict peace-building efforts include
effective measures to end the culture of impunity and protect the rule of law.”
COMPONENTS OF THE KASHMIRI RIGHT TO SELF-DETERMINATION
“ Even without the United Nations recognition of the Kashmiri’s right to self-determination,
the Kashmir claim under the traditional test set out above: (1) a definable territory with a
history of independence or selfgovernance; (2) a distinct culture; and (3) the will and
capability to restore self-governance. The area had a long history of self-governance pre-
dating the colonial period. In this regard it is revealing that under British colonial rule,
Kashmir was granted internal autonomy. The territory of Kashmir has been clearly defined
for centuries. ”
51
Guidelines Laid by the Supreme Court in D.K. Basu vs State of Bengal, online:
http://chandigarhpolice.nic.in/spcourt.htm
Regarding cultural uniqueness, the Kashmiri people speak Kashmiri, which, while enjoying
Sanskrit as a root language as do all Indo-European languages, is clearly a separate language
from either Hindi or other languages spoken in India or Urdu or other languages spoken in
Pakistan. The Kashmiri culture is similarly distinct from other cultures in the area in all
respects -- folklore, dress, traditions, and cuisine. Even every day artifacts such as cooking
pots, jewelry have the unique Kashmiri style. ”
“ Most important to a claim to self-determination, the Kashmiri people have had a continuing
and at present have a current strong common aspiration for re-establishment of self-rule. The
Kashmiri people resisted the British, and maintained autonomy throughout British rule. In
1931 the Kashmiri people and their leadership formed the ‘Quit Kashmir’ movement against
the British and the British-supported maharajah that was, unfortunately, brutally put down.
But the ‘Quit Kashmir’ campaign against the maharajah continued into 1946, when it
reconstituted itself into the Azad (Free) Kashmir movement. As discussed above, during the
breakup of British India, the Azad Kashmir military forces began armed attacks against the
forces of the maharajah -- prompting the accession to India in exchange for Indian military
protection. Resistance to Indian occupation has continued unabated throughout Indian
occupation, with major uprisings in 1953, 1964 and continuing essentially unabated since
1988. ”
“ While resistance to India has played a major role in Kashmiri events, there is also forward-
looking political leadership with a clear will and capability to carry on the governance of an
independent Kashmir. There are a number of political parties in both Indian-occupied
Kashmir and Azed Kashmir that have been active for some time, even though at great risk.
Many of the leaders of these parties have spent time in Indian jails, some for many years,
merely because of their political views on Kashmir. In 1993 most of the Kashmiri political
parties in the Indian-occupied area joined together to form the All- Parties Hurriyet
Conference (APHC). ”
“ Since it formation, the APHC has sent leaders around Kashmir and around the world to
forward dialogue, peaceful resolution of the Kashmiri war, and realization of the United
Nations resolutions for a plebiscite of the Kashmiri people. Leaders and representatives of the
APHC have regularly attended United Nations human rights sessions, special conferences
and the General Assembly. ”
CONSEQUENCES OF THE FAILURE TO REALIZE THE KASHMIRI RIGHT TO SELF-
DETERMINATION
“ Today we find that the disposition of Kashmir has still not been legally decided. It is not an
integral part of any country. Rather, it is a victim of an imperfect de-colonization that, to date,
has not led to the realization of the expression of self-determination of the Kashmir people.
For all this time the Kashmiri people in the Indianoccupied area are involved in an
occupation and, for the past thirteen years a brutal war -- the Kashmiri War – in which 5-
700,000 Indian troops are present in the area carrying out military actions against civilians
and Kashmiri military forces alike. In the course of that armed conflict, the Indian forces
have engaged in grave breaches of the Geneva Conventions and the general laws and customs
of war. Violations of the rights of POW’s, rapes, disappearances, summary execution, torture
and disappearances related to the conflict are nearlyevery-day events in Indian – occupied
Kashmir. The right to self-determination has been trampled on in ‘terrorist/counter-terrorist’
rhetoric, burdened by military operations across the LOC, and buried as the world’s attention
focuses elsewhere. In a nutshell, the Kashmiri people face attempts to militarily obliterate
their valid self-determination claim while at the same time equating Kashmiri resistance and
Indian military operations as ‘terrorism/counter-terrorism.’ Calls for application of the
Geneva Conventions and other instruments and rules of the law of armed conflict are non-
existent. ”
“ Apart from the mud-slinging, the tragedy is that well-meaning people and States are
intimidated from supporting the proper legal position regarding the current legal status of
Kashmir and the application of humanitarian law. Many States are in open violation of their
jus cogens and erga omnes obligations to defend the right of the self-determination of the
Kashmiri people as well a their obligations under the Geneva Conventions. Sadly, there is no
current action at the United Nations Security Council to reinstate the position of Plebiscite
Administrator and to undertake to establish conditions by which the plebiscite can take place.
And also, very sadly, not enough people know sufficiently both the law of self-determination
and the law of armed conflict to properly redirect the dialogue, adding to the vulnerable
position of even non-Kashmiri defenders of self-determination for the Kashmiri people. ”
PAST INTERVENTIONS
ADMINISTRATIVE INTERVENTIONS
Jeevan Reddy Commission
“ In 2004, in wake of the intense agitation launched by civil society groups against the rape
and murder of a woman named Manorama Thangjam in the North Eastern state of Manipur,
the Indian government appointed a commission headed by former Supreme Court Judge,
Justice Jeevan Reddy to investigate the workings of the Armed Forces (Special Powers) Act
1958 operating in the North Eastern states of India.52 The Reddy commission submitted its
recommendations to the parliament on June 6, 2005. While the Jeevan Reddy Commission
report was not made public, the contents were leaked, and it is now known that the committee
recommended repeal of the AFSPA.53 However, the recommendations are yet to be
implemented by the Indian government. ”
Recommendations of the Committee
The Committee made the following recommendations in its report –
1. “The Armed Forces (Special Powers) Act, 1958 should be repealed. Therefore,
recommending the continuation of the present Act, with or without amendments, does not
arise. The Act is too sketchy, too bald and quite inadequate in several particulars. It is true
that the Hon'ble Supreme Court has upheld its constitutional validity but that circumstance is
not an endorsement of the desirability or advisability of the Act. … the Act, for whatever
reason, has become a symbol of oppression, an object of hate and an instrument of
discrimination and highhandedness. 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). For that
purpose, an appropriate legal mechanism has to be devised.”
“ This is a logical recommendation of the Committee keeping in mind the fact that some of the
provisions of the Act are inconsistent with not just the international conventions India is
signatory to, but also to the provisions of the Indian constitution and criminal laws. As
recommended by the committee, keeping in mind the present situation in Kashmir, the army
should remain in the region, however acts of the members of the armed forces should be the
governed by the existing central and state legislations of the country and not any special
legislation. Also, there is a need to stipulate a fixed anticipated period for the army’s presence
52
Justice B.P. Jeevan Reddy, “Report of the Committee to Review Armed Forces (Special Powers) Act of
1958”, (June 2005), online: http://www.hindu.com/nic/afa/
53
Ministry of Home Affairs Office Order No. 11011/97/2004-NE-III dated 19th November, 2004.
inthe region probably for six months, which should be reviewed periodically as per the
existing situation in Kashmir. ”
2. “The Committee is also of the firm view that it would be more appropriate to recommend
insertion of appropriate provisions in the Unlawful Activities (Prevention) Act, 1967 (as
amended in the year 2004).”
“ In the presence of already existing Indian Penal Code and Code of Criminal Procedure and
well as provisions of the Indian constitution, retaining any separate act for the purposes of
conferring special powers to the armed forces would render the very purpose of repealing The
Armed Forces Act futile. In the present scenario what is required is that the issues of
accountability and special powers of the armed forces be dealt with using the same
legislations that are applicable to ordinary citizens. The purpose of requesting the armed
forces to intervene may logically be to use their high level expertise in handling a situation of
public order which the state police could not handle on their own. This however should not
become a means of paralyzing the fundamental rights of the civilians and basing all actions of
the armed forces on the assumption of ‘guilt’ even before that guilt has been proven. ”
“ This does not mean that the armed forces should not be conferred with any special enabling
powers in dealing with terrorist activities. Provisions dealing with terrorism and their
corresponding powers for the armed forces should be incorporated in the criminal procedure
code and penal code itself by way of an amendment. ”
“Necessity of creating a mechanism, which we may designate as the "Grievances Cell". There
is need for a mechanism which is transparent, quick and involves authorities from concerned
agencies as well as civil society groups to provide information on the whereabouts of missing
persons within 24 hours… The Grievances Cells will be composed of three persons, namely,
a senior member of the local administration as its chair, a Captain of the armed
forces/security forces and a senior member of the local police.”
“ Though the formation of a ‘Grievance Cell’ would serve multiple purposes and should be
welcomed, the constitution of the cell as suggested by the Committee smells inherently
biased and impractical. Formation of the grievance cell at district level especially for the
purposes of filing complaints of human rights abuses by members of armed forces will help
deal with human rights matters against the armed forces in a fast track and specialized
manner as well as infuse a renewed confidence amongst the people. Grievances cells should
function as the first point of redress before the matters reach superior courts. It will also
impart the required impunity to the armed forces by not being directly exposed to the civilian
courts at the preliminary stages of adjudication. At the same time, it will help filter out all
frivolous and vexatious complaints before they reach the courts to be tried under the common
criminal laws.
“ However, it is important that the constitution of the grievance cell reflects the interests of
both the complainants as well as the armed forces. For this purpose, the cell should be seated
upon by a representative from non – governmental organizations working at the grass roots
levels in thearea, a retired member of the armed forces or police, and presided over by a
retired judge of the high court of the state. ”
4. “The Central Government shall, by a notification published in the Gazette, specifying the
State or the part of the State in which the forces would operate and the period (not exceeding
six months) for which the forces shall operate. At the end of the period so specified, the
Central Government shall review the situation in consultation with the State Government…”
“ This is again a welcomed suggestion. It is important to make the requirement of periodic

review of the declaration a mandatory process of law by way of an amendment to the existing
laws. This amendment should however be made to the existing central and state legislations. ”
5. “The deployment of armed forces for the said purposes should be undertaken with great
care and circumspection. Unless it is absolutely essential for the aforesaid purposes, the
armed forces of the Union should not be so deployed, since too frequent a deployment, and
that too for long periods of time, carries with it the danger of such forces losing their
moorings and becoming, in effect, another police force, a prey to all the temptations and
weaknesses such exposures involve. Such exposure for long periods of time may well lead to
the brutalization of such forces - which is a danger to be particularly guarded against.”
“While providing protection against civil or criminal proceedings in respect of the acts and
deeds done by such force while carrying out the duties entrusted to them, it is equally
necessary to ensure that where they knowingly abuse or misuse their powers, they must be
held accountable therefore and must be dealt with according to law applicable to them.”
“ This is perhaps the main reform goal for the situation in Kashmir. Army should be deployed
in the region keeping in mind that overarching purpose to reach a public consensus in the
regions who would then allow removing army deployment eventually. For working towards
reaching that reform goal, there is a need to promote peaceful negotiations with the people
and make the legislations more civilian friendly instilling a feeling of protection rather than
being targeted. ”
An important change that is indispensable to achieve this reform goal is to make the armed
forces more accountable. This can only happen when matters of abuse or misuse of powers
under the Act are judicially tried in the civilian courts. ”
Moily Commission
“ In 2007, the Moily Commission submitted its fifth report of the Second Administrative
Reforms Commission on ‘public order’ to the Prime Minister. Upholding the findings of the
Jeevan Reddy Committee, the Moily Commission recommended repealing the Armed Forces
(Special Powers) Act 1958 operating in the North Eastern states of India and providing for an
enablinglegislation like the already existing Unlawful Activities (Prevention) Act 1967 for
deployment of armed forces in the North Eastern states. ”
Working Group on Confidence-Building Measures in Jammu and Kashmir
“ 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.54 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.55 ”
Justice Verma Committee Recommendations 2013
“ In January 2013, another committee set up by the government of India under the
Chairmanship of retired judge of Supreme Court, Justice Verma, recommended that the
requirement of sanction of the Central Government for initiating prosecution against the
armed forces personnel, needs to be dispensed with, especially in the cases where sexual
offence is alleged.56Also, complainants of sexual offences should mandatorily be accorded
54
The Prime Minister’s Office, “PM’s Opening remarks at Third Roundtable Conference on Jammu &
Kashmir,”,
(24 April 2007) ,online: http://pmindia.nic.in/speech/content.asp?id=529.
55
Praveen Swami, “Bit of Consensus,” Frontline, (, May 5-18, 2007) vol. 24, Issue 9, online:
http://flonnet.com/fl2409/stories/20070518002902500.htm (accessed April 21, 2008).
56
Justice J.S.. Verma, “Report of the Committee on Amendments to Criminal Law”, (23 January 2013), online:
witness protection. Besides, there should beappointment of special commissioners in conflict
area to prosecute sexual offences. The committee also emphasized the need to train armed
personnel to encourage strict observance of orders in this regard. 57 ”
“ The report of Justice Verma Committee goes a long way in understanding the real concerns
with respect to the extraordinary military powers accorded under the Armed Forces (Jammu
& Kashmir) Special Powers Act 1990. A major bottleneck in holding the errant members of
armed forces accountable for abuse of their powers is the requirement to get the prior
approval of the Central Government to institute legal proceedings against the armed forces.
Doing away with this requirement will make the whole process of justice much more
achievable and tangible. ”
NAGA PEOPLE’S MOVEMENT OF HUMAN RIGHTS V. UNION OF INDIA
“ The Armed Forces (Special Powers) Act 1958 has been challenged in the courts several
times. In 1980, a Manipuri group named the Human Rights Forum filed public interest
litigation in the Supreme Court, challenging the constitutional validity of the Armed Forces
(Special Powers) Act 1958. 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. 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.58The five judges’ bench in its decision held that the above Act
cannot be regarded as a colorable legislation or a fraud on the Constitution. The powers
conferred under Sections 4 and 5 of the Act are not arbitrary and unreasonable are not
violative of the provisions of the Constitution. ”
Court’s Observations and Recommendations:
“ Declaration of ‘disturbed areas’ On the issue of absence of guidelines for declaring a region
as ‘disturbed area’, the court was of the view that for an area to be declared as 'disturbed area'
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.p
df
57
“Civil society welcomes Justice Verma's suggestions on AFSPA” Tehelka (2013, Jan 28), online:
http://search.proquest.com/docview/1282016832?accountid=14771
58
Naga People’s 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.
there must exist a grave situation of law and order on the basis of which the
Governor/Administrator of the State/Union Territory or the Central Government can form an
opinion that an area is in such a disturbed or dangerous condition that the use of armed forces
in aid of the civil power is necessary. It cannot, therefore, be said for arbitrary and unguided
power has been conferred in the matter of declaring an area as disturbed area under Section
2(b) read with Section 3 of the Central Act. ”
Periodic Review
It was submitted by the petitioners that the Armed Forces Act does not contain any provision
specifying a fixed period for periodic review of the status in an area declared as ‘disturbed
area’. However, the court disagreed with this submission and stated that, the definition of
'disturbed area' in Section 2(b) of the Central Act talks of an areas which is for the time being
declared by notification under Section 3 to be a ‘disturbed area’ (emphasis supplied). The
words for the time being imply that the declaration under Section 3 has to be for a limited
duration and cannot be a declaration which will operate indefinitely. It is no doubt true that in
Section 3 there is no requirement that the declaration should be reviewed periodically. But
since the declaration is intended to be for a limited duration and a declaration can be issued
only when there is grave situation law and order, the making of the declaration carries within
it an obligation to review the gravity of the situation from time to time and the continuance of
the declaration has to be decided on such a periodic assessment of the gravity of the situation. ”
The court however recommended that “periodic review of the declaration made under Section
3 of the Central Act should be made by the Government/Administration that has issued such
declaration before the expiry of a period of six months.”
List of Dos and Don’ts to be followed by armed forces
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
forcerequired 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.”
INDIA’S REPORT TO HUMAN RIGHTS COUNCIL

“ India submitted its National Report to the Human Rights Council on 21st May 2012
justifying the continuance of The Armed Forces Act in Kashmir and the North Eastern states.
As per Para 25, 26 and 27 of the report.59 ”
“25. This Act is considered necessary to deal with serious terrorist and insurgency/ militancy
situation arising in certain parts of the country and uphold the duty of the state to protect and
secure its citizens. It provides necessary powers, legal support and protection to the Armed
Forces for carrying out proactive operation against the terrorists in a highly hostile
environment. An analysis of the ground realities shows that the violence levels and the
fighting ability of terrorists have reduced over the years. Nevertheless, they still possess
sophisticated weapons and modern communication equipment and the terrorist infrastructure
across the borders is still active. The terrorists continue to intimidate the public. In such a
challenging environment, where the very lives of its citizens andthe unity and integrity of
India is at stake, as long as deployment of armed forces is required to maintain peace and
normalcy, AFSPA powers are required.” “
“ In Para 25, where the Indian government cites the need to continue operation of the Armed
Forces act in order to combat terrorist activities, it nowhere mentions the internal disturbance
and violence existing due to the demands of the people of Kashmir for self – determination. It
is quite possible that the Act is being operated not just against the terrorist activities but also
to suppress the demands of the people of Kashmir. ”
“26. The Army maintains continuous vigilance to prevent human rights violations by its
forces. Human Rights Cell in the Army Headquarters was established in March 1993, even
before the NHRC was constituted. These cells have been established at various levels. The
investigations of violations are carried out swiftly and in a transparent manner and exemplary
punishments are meted out to those involved.”60 ”
“ There is no doubt that any kind of investigations mechanism operating from within the army
headquarter to enquire into charges against the armed forces themselves will result in biased
and manipulation interests and cannot be seen as a fair due process. ”
“27. Since January, 1994 until December, 2011, out of 1,429 complaints of human rights
excesses received against the personnel of Army and Central Para Military Forces, 1,412
59
National report submitted by India to Human Rights Council in accordance with paragraph 5 of the annex to
Human Rights Council resolution 16/21, (May – June 2012)
60
Ibid.
have been investigated and 1,332 found false.” Para 26 and 27 of the report exemplifies the
need to constitute an independent investigation and judicial authority to decide upon such
matters of abuse by the armed forces. ”
THE GANDHIAN APPROACH
“ While the Indian Constitution is a remarkable expression of liberal democratic values, the
legal system today still remains entrapped in the framework of the colonial past. We are, thus,
faced with the paradox of a newly independent state, styling itself as a ‘sovereign, democratic
republic’, and drawing upon colonial law premised upon the absolute power of the ruler to
maintain control of its new citizens.61 This approach has led to unrest amongst the people of
Kashmir owing to longstanding oppression under the armed forces rule. The rare criticism of
the Armed Forces Act by the UN Human Rights Commission is dismissed by the Indian
media and officials as encroaching on India’s sovereignty.62 ”
“ Even in the insurgency struck North Eastern parts of India, the State is taking counter-
measures and developing strategies to reduce the influence of Maoists by force. But how
feasible is the approach of aiming to end violence by means of counter violence? Let us look
if Mahatma Gandhi can answer the question. ”
“ Mahatma Gandhi believed that, An eye for an eye leaves the whole world blind. Gandhi
emphasized on two important pillars for successful governance, which are Satyagraha and
Non-violence. Satyagraha literally means devotion to truth, remaining firm on the truth and
resisting untruth actively but non-violently. Since for Gandhi, the only way for to the truth is
by nonviolence (love), it follows that Satyagraha implies an unwavering search for the truth
using nonviolence. Satyagraha according to Michael Nagler literally means ‘clinging to
truth,’ and that was exactly how Gandhi understood it: ‘clinging to the truth that we are all
one under the skin, that there is no such thing as a ‘win/lose’ confrontation because all our
important interests are really the same, that consciously or not every single person wants
unity and peace with every other’. Satyagraha is a moral weapon and the stress is on soul
force over physical force. It aims at winning the enemy through love and patient suffering. It
aims at winning over an unjust law, not at crushing, punishing, or taking revenge against the
61
Shubh Mathur, “Life and death in the borderlands: Indian sovereignty and military impunity”, (July 2012)
Race & Class , 54 (1), pg. 33-49.
62
Jack Donnelly, ‘State sovereignty and human rights’, in Human Rights and Human Welfare, Working Paper
No. 21 (2004)
authority, but to convert and heal it. Though it started as a struggle for political rights,
Satyagraha became in the long run a struggle for individual salvation, which could be
achieved through love and self-sacrifice.
“ AFSPA is closely modeled on the Armed Forces (Special Powers) Ordinance originally
introduced by the British colonial government in 1942 to suppress the Quit India movement
which was headed by Mahatma Gandhi and was a mass movement that sought to throw off
British rule through a series of popular protests (civil disobedience).63 It was a short
Ordinance with only two provisions and British government had a successful stint with it in
their own country during the Second World War.64 It was during this time, that Mahatma
Gandhi’s approach of Satyagraha (Truth force or soul force) or freedom by means of non –
violence and peaceful negotiations became popular and served a long way in realizing Indian
independence. Even in face of a draconian legislation like Armed Forces (Special Powers)
Ordinance, Gandhi’s Quit India movement remained largely a non-violent movement. More
than 100,000 people were arrested and the movement was apparently crushed but the
message of Indian resistance was imprinted in the mind of the colonial government.65 Five
years after Quit India movement on 15th August 1947, India gained Independence from
British. More importantly, Quit India movement is considered to be the last largest protest
against the British rule before the Independence.66 So definitely, though the movement was
crushed, its importance cannot be undermined. Similarly, in the present context, though many
peaceful talks would have failed in the disturbed areas of Jammu & Kashmir and other North
Eastern States of India, but their significance or ramifications cannot be undervalued. Though
Gandhi is no more with us, but his principles of Satyagraha and Non-violence can never be
infructuous. But the complex question is, Gandhi used his weapon of Satyagraha and Non-
violence against an autocratic/colonial government; how does the Indian government use the
same course of action in the disturbed areas to restore the rule of law? ”
“ For Gandhi, ‘ahimsa’ or non - violence was the expression of the deepest love for all humans,
including one’s opponents; this non-violence therefore included not only a lack of physical
harm to them, but also a lack of hatred or ill-will towards them. Gandhi rejected the
traditional dichotomy between one’s own side and the “enemy;” he believed in the need to
63
Michael N. Nagler, “Hope or Terror?” (Minneapolis: METTA Center for Nonviolence Education, 2009), p.7.
64
Shubh Mathur, “Life and death in the borderlands: Indian sovereignty and military impunity”, (July 2012)
Race & Class , 54 (1), pg. 33-49.
65
Fisher D; “The Proudest Day: India's Long Road to Independence” (1998) WW Norton. p. 330.
66
Arthur Herman, “Gandhi & Churchill: The Epic Rivalry That Destroyed an Empire and Forged Our Age”
(Random House Digital, 2008) pp. 494–99
convince opponents of their injustice, not to punish them, and in this way one could win their
friendship and one’s own freedom.67 ”
“ With Gandhi, the notion of nonviolence attained a special status. He not only theorized on it,
he adopted nonviolence as a philosophy and an ideal way of life. He made us understand that
the philosophy of nonviolence is not a weapon of the weak; it is a weapon, which can be tried
by all. ”
“ Nonviolence was not Gandhi’s invention. He is however called the father of nonviolence
because according to Mark Shepard, ‘he raised nonviolent action to a level never before
achieved.’68 Krishna Kripalani again asserts “Gandhi was the first in Human history to extend
the principle of nonviolence from the individual to social and political plane.”69 While
scholars were talking about an idea without a name or a movement, Gandhi is the person who
came up with the name and brought together different related ideas under one concept:
Satyagraha.
“ If we go by the Gandhi approach in dealing with the social uprisings in North Eastern India,
we’ll realize that their demands are nothing but fundamental rights conferred by the
Constitution to every citizen; Right to Equality, Expression, Speech, Movement and Choice
of Occupation. The government should make a serious effort in reaching out to the people to
understand their grievances and increase allocations in education, employment, healthcare
and infrastructure, and effectively implement the same through efficient delivery mechanisms
and proper governance. ”
“ Government schemes like Bharat Nirman and MGNREGA70 can be utilized for creating
adequate infrastructure for development and generating employment for the tribals. The
government should motivate its ground staff to work towards developing those backward
areas. This approach may not be an easy route and will have its own set of complexities;
however this will definitely involve a more peaceful means of reaching a permanent solution
to the issue as suppressing the demands of the people by means of violence and military
67
Mahatma Gandhi Lectures on Non Violence, McMaster University, online:
http://www.humanities.mcmaster.ca/gandhi/lectures/index.html
68
M. Shepard, “Mahatma Gandhi and his Myths, Civil Disobedience, Nonviolence and Satyagraha in the Real
World”, (Los Angeles, Shepard Publications, 2002),online:
http://www.markshep.com/nonviolence/books/myths.html .
69
Krishna Kripalani, “M. K. Gandhi: All Men Are Brothers, Autobiographical Reflections”, (New York; The
Continuum Publishing Company, 1990) at p. vii.
70
Mahatma Gandhi National Rural Employment Guarantee Act, 2005
power cannot be seen to provide a permanent resolution to the issue. This will bring about a
perceptible change in their mindset.71 ”
“ As far as the issue of Kashmir is concerned, again we can try to give peace a chance. For
instance during the partition of British India, while the Indian National Congress and
Mahatma Gandhi called for the independence of India from British rule, the Muslim League
insisted on division of India.72 Gandhi, believing in his principles of self determination and
non violence was of the opinion that the issue of partition could be resolved by means of
plebiscite post independence in the districts with a Muslim majority. 73 Gandhiji wrote: "There
must be no impatience, no barbarity, no insolence, no undue pressure. If we want to cultivate
a true spirit of democracy, we cannot afford to be intolerant. Intolerance betrays want of faith
in one's cause."74 Though Gandhi’s ideology was not taken well by Hindu fanatics and many
other right wing leaders, but it was again Gandhi who played a role in minimizing the
violence caused post partition. ”
“ In a nutshell, Satyagraha is itself a movement intended to fight social and promote ethical
values. It is a whole philosophy of nonviolence. It is undertaken only after all the other
peaceful means have proven ineffective. At its heart is nonviolence. An attempt is made to
convert, persuade or win over the opponent. It involves applying the forces of both reason
and conscience simultaneously, while holding aloft the indisputable truth of his/her position.
The Satyagrahi also engages in acts of voluntary suffering. Any violence inflicted by the
opponent is accepted without retaliation. The opponent can only become morally bankrupt if
violence continues to be inflicted indefinitely. Of course, we cannot expect the Government
to sit with folded hands when they face violence. But we can definitely expect that the
Government should get to the root of such unrest or violence to reason out, to fight only with
force of truth (Satyagraha), to introspect, to talk and in Gandhi’s language, the Government
can carry some experiments with truth.75 ”
71
“Treat the Disease, not the Symptoms”, Financial Express (India), (6 September 2010)
72
Keen, Shirin, “The Partition of India”, Emory University, 198,
Seehttp://postcolonialstudies.emory.edu/partitionof-india/
73
Homer A Jack, “The Gandhi Reader: A Source Book of his Life and Writings”, (January 1994) Grove Press.,
p. 418.
74
R. K. Prabhu & U. R. Rao, "Power of Satyagraha", The Mind of Mahatma Gandhi, (Ahemadabad, India,
Revised
75
Mahatma Gandhi, “My Experiments with Truth”, (Boston : Beacon Press, 1957).
ROLE OF JUDICIARY
“ There is no doubt that the armed forces operate in difficult and trying circumstances in the
areas afflicted by internal armed conflicts. It is in these situations that the supremacy of the
judiciary and the primacy of the rule of law need to be upheld. However, if the law
enforcement personnel stoop to the same level as the non-state actors and perpetrate the same
unlawful acts, there will be no difference between the law enforcement personnel and the
non-state actors whom the government calls ‘terrorists’.76 Indian judiciary has always been
considered to be proactive and equipped with adequate authority. The strength of any country
claiming itself as ‘democratic’ lies in upholding the supremacy of the judiciary and primacy
of the rule of law. It requires putting in place effective criminal-law provisions to deter the
commission of offences against the innocents and punishment for breaches of such provisions
while exercising executive powers; and not in providing the arbitrary powers to the law
enforcement personnel to be law unto themselves. The AFSPA violates basic tenets of
criminal justice system in any civilized society. First, it provides special powers which
tantamount to awarding heavier penalty to the suspects than convicted persons would get
under normal court, a clear violation of the cardinal principle of criminal justice system -
nullumcrimen, nullapoena sine lege. Second, non-application of due process of law makes the
armed forces to be their own judge and jury. Most importantly, by giving virtual impunity to
the armed forces under Section 6 of the AFSPA as well as the Code of Criminal77 The Asian
Centre for Human Rights, An analysis of Armed Forces Special Powers Act 1958, (March
2005) PUCL Bulletin. Procedure, which makes its mandatory to seek prior permission of the
Central Government to initiate any legal proceedings, the Executive has expressed its lack of
faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the
charges are vexatious, abusive or frivolous. ”
CONCLUSION
““ Mahatma Gandhi’s non violent approach to independence struggle influenced and inspired
many later peaceful struggles, for example the civil rights movement of Martin Luther King,
Jr. ”
76
The Asian Centre for Human Rights, “An analysis of Armed Forces Special Powers Act 1958”, (March 2005)
PUCL Bulletin.
77
The Asian Centre for Human Rights, “An analysis of Armed Forces Special Powers Act 1958”, (March 2005)
PUCL Bulletin.
“ It is important that the Armed Forces (Jammu & Kashmir) Special Powers Act 1990 is
repealed in Kashmir and acts of the members of the armed forces are brought under the ambit
of the already existing penal legislations. At the same time it is imperative to amend the
provisions of the existing legislations that confer immunity to the armed forces in cases of
misuse or abuse of powers. The requirement of approval of the Central Government before
instituting a legal proceeding against the armed forces should be done away with. Further,
there is a need to constitute special grievance cells at district levels to adjudicate such cases
against the armed forces before they are referred to the higher courts. ”
“ As per Article 1 of the ICCPR78, all people have the right to self determination including the
right to determine their political status and freely pursue their economic, social and cultural
development. The State Parties have a duty to promote the realization of the right to self –
determination. ”
“ Drawing analogies between the pre – independence conflict and the current Kashmir conflict,
it can be said that there is a need to introduce a more peaceful means of developmental and
negotiation based approach. Small steps towards this goal have already been taken in various
forms. In 1994, the Jammu and Kashmir Liberation Front’s (JKLF) jailed leader
MuhammadYasin Malik denounced the use of violence to achieve political goals in Kashmir.
He proclaimed that he would use non-violent means to further his cause. He quickly became
the part of profreedom political alliance, the All Parties Hurriyat Conference (APHC), and
started his political activities. Malik’s move towards non violent means of independence was
widely resisted by his former militant comrades but he continued to champion his cause
through various tools such as signature campaigns and Safar-eAzadi.(the journey to
freedom). He also conducted a six-monthlong campaign in the Valley to involve people and
create awareness among them about the dialogue process between India and Pakistan in
2007. ”
“ On the other hand, India and Pakistan also initiated a dialogue process that saw a huge
impact inside Kashmir and people got some relief promising a peaceful and permanent
solution. A bus service was also started between Srinagar (India) and Muzaffarabad
(Pakistan) to provide divided families of Jammu and Kashmir the opportunity to have reunion
in early 2005. That was considered a major confidence building measure. ”
78
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United
Nations, Treaty Series, vol. 999, p. 171
“ There have been ongoing efforts from both Islamabad and New Delhi to encourage Kashmiri
stakeholders to generate a consensus in both sides of Jammu and Kashmir to devise a doable
and acceptable strategy for the resolution of Kashmir problem. Consequently, a broad
consensus has emerged that the use of force either by state or non-state actors to settle this
conflict was out of the question. Instead, a creative, out of the box solution, which could be
acceptable to the people of Kashmir had to be pursued through sustained dialogue and
continuous engagement. ”
“ Mahatma Gandhi was the first leader on earth to propagate the culture of non-violence to
attain national independence. The goal of independence also included democracy rooted in
rule of law to protect and promote human rights, development, peace and progress. He
believed that spreading culture of non-violence is a sine-qua-non for extinction of terrorism
rooted in violence.79 In the 21st century, we are living in a global village, where reason and
conscience prevail. It is difficult to think of our country in isolation in the matter of terrorism,
which has engulfed the world.80 Hence, it is important that both India and Pakistan address
the root cause of the conflicts in Kashmir. Only when the concerns of the people of Kashmir
are considered and their right to self determination is respected, can there be a possibility
peaceful resolution of the conflict, where through complete independence of the region or by
means of partial autonomy and shared administration. ”
BIBLIOGRAPHY
1. Ali Ahmed, “Reconciling AFSPA with the Legal Spheres”, (April 2011) Institute for
Defence Studies and Analyses (IDSA), Vol 5. No 2.
2. Amnesty International, “Broken Promises – Egypt’s Military Rulers Erode Human Rights”
(November 2011).
3. Amnesty International Report “ The State of World’s Human Rights” (2012).
4. Arundhati Roy, “Walking with the Comrades”, (29 March 2010) online:
http://www.outlookindia.com/article.aspx?264738-0.
5. Asian Centre for Human Rights, “India Fails UN Human Rights Test” (March 2013).
79
E. Mahmud, “Kashmir: The challenges to non-violent movement.” (2012) Strategic Studies, XXXII(2-3)
online: http://search.proquest.com/docview/1313161377?accountid=14771
80
Ibid
6. Asian Legal Resource Centre (ALRC), “Thailand: Arbitrary Detention and Harassment
under the Emergency Decree in Thailand” (August 2010) Human Rights Council, Vth
Session, Agenda Item 4.
7. Austin Sarat, “Sovereignty, Emergency, Legality” (2010) Cambridge University Press,

Cambridge Books,
Online:http://dx.doi.org.myaccess.library.utoronto.ca/10.1017/CBO9780511711886.
8. B. Chakrabarty, “Mahatma Gandhi: A historical biography” (New Delhi: Lotus Collection,

2007).
9. Craig Forcese, “Canada’s National Security “Complex”: Assessing the Secrecy Rules”
(June 2009) IRPP Choices. Vol. 15. No. 5.
10. Damien Kingsbury, “Sri Lanka and the Responsibility to Protect: Politics, Ethnicity and
Genocide” in Taylor and Francis (2012).
11. Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for
All (Washington, D.C., Brookings Institution Press, 2008) at xvi.
12. Haley Duschinski, “Destiny Effects: Militarization, State Power, and Punitive
Containment in Kashmir Valley”, (Summer, 2009) Anthropological Quarterly , Vol. 82, No.
3, pp. 691-717.
13. H. T. Muzumdar, “Mahatma Gandhi: Peaceful Revolutionary” (New York: Scribner,

1952).
14. International Commission of Jurists, “More Power, Less Accountability: Thailand’s New
Emergency Decree” (August 2005).
15. J D Brewer ; A Guelke ; “Police, Public Order and the State” (1988) NCJ 117569 NCJRS.
16. Jeremy Rayner, “The Constitutional Law: Legality in Time of Emergency” (2006)
Cambridge University Press, pp. xv, 250.
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Anthem Press 142.
18. K. Iqbal, “Simmering Kashmir” (2012) Defense Journal, 15(9), 81-82. Online:
http://search.proquest.com/docview/1023449095?accountid=14771.
19. “Mahatma Gandhi”, (1993) Kirkus Reviews, (19) online:
20. M. Juergensmeyer, “Gandhi vs. Terrorism Daedalus” 1 36(1), 30-39. Online:

21. National report submitted by India to Human Rights Council, (21 May–4 June
2012)Human Rights Council, Working Group on the Universal Periodic Review, Thirteenth
session, Geneva.
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Economist,393.8656 p56(EU).
23. Parvez Imroz, “Judicial Impunity” (19 May 2012) Economic & Political Weekly.
24. Paul Finkelman, “Limiting Rights in Times of Crisis: Our Civil War Experiences – A
History Lesson for a Post- 9-11 Experience” (2003 – 2004), 2 Cardozo Pub. L. Pol’y&Ehics
J. 25.
25. Paul F. Power, “Towards a Re-evaluation of Gandhi’s Political Thought”, (March 1963)
Political Research Quarterly, 16 (1), pg. 99-108.
26. Prof. Michel Chossudovsk, “The Use of The Armed Forces in America Under a National
Emergency - Unrestricted & Arbitrary Powers Conferred to the President & Vice President”
(June 2007) Global Research.
27. “Repeal AFSPA, PSA from Kashmir and North East: UN Special Rapporteur” (2013,
May 08) Tehelka, Online:
28. Saikrishna Bangalore Prakash, “The Separation and Overlap of War and Military Powers”
(December 2008) Texas Law Review Vol. 87. No. 2.
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XXXII (2-3), online: http://search.proquest.com/docview/1313183147?accountid=14771.
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Truthand Justice Prevail in Jammu and Kashmir?” Economic & Political Weekly (26 Nov
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Cambridge University Press, Cambridge Books. Online:
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34. V. P. Gaur, “Mahatma Gandhi: A Study of his Message of Non-Violence” (New Delhi:
Sterling Publishers, 1977).

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TITLE OF THE SEMINAR PAPER

EXTRAORDINARY MILITARY POWERS AND RIGHT TO SELF DETERMINATION

NAME AND ROLL NUMBER OF THE CANDIDATE

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PAST INTERVENTIONS .......................................................................................................... 27

SIGNATURE OF THE GUIDE

Instrument of Accession to India

“ Amnesty International accused security forces in Indian-controlled Kashmir of exploiting the

ARTICLE 370 AND SPECIAL STATUS OF KASHMIR:

CONSEQUENCES OF MILITARY OPERATIONS IN OTHER COUNTRIES

INVOCATION OF THE ACT

EXTRAORDINARY MILITARY POWERS UNDER THE ACT

c. To arrest without a warrant anyone who has committed cognizable offences or is

Legal Immunity to Armed Forces

Armed Forces (Jammu & Kashmir) Special Powers Act 1990

Indian Constitution 1950

Indian Penal Code 1860

Thirdly- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1976 (‘ICCPR’)

Armed Forces (Jammu & Kashmir) Special Powers Act 1990

Indian Penal Code 1860

Section 41 and 42 – Power to Arrest without Warrant

Section 41 - When police may arrest without warrant –

POWERS OF SEARCH AND SEIZURE

Armed Forces (Jammu & Kashmir) Special Powers Act 1990

Indian Penal Code 1860

Section 47 - Search of place entered by person sought to be arrested.-

Section 52 - Power to seize offensive weapons.-

DUTY UPON ARREST

Indian Constitution 1950

Armed Forces (Jammu & Kashmir) Special Powers Act 1990

Armed Forces (Jammu & Kashmir) Special Powers Act 1990

Indian Penal Code

Code of Criminal Procedure 1973

As per Section 197 (2),

International Covenant on Civil and Political Rights (‘ICCPR’) 1966

Article 2(3) of the ICCPR obligates State Parties to

“ c) To ensure that the competent authorities shall enforce such remedies.”

Safeguards under IPC and CrPC

It was further stated that –

COMPONENTS OF THE KASHMIRI RIGHT TO SELF-DETERMINATION

Recommendations of the Committee

The Committee made the following recommendations in its report –

“ This is again a welcomed suggestion. It is important to make the requirement of periodic

Working Group on Confidence-Building Measures in Jammu and Kashmir

Justice Verma Committee Recommendations 2013

NAGA PEOPLE’S MOVEMENT OF HUMAN RIGHTS V. UNION OF INDIA

Court’s Observations and Recommendations:

List of Dos and Don’ts to be followed by armed forces

INDIA’S REPORT TO HUMAN RIGHTS COUNCIL

THE GANDHIAN APPROACH

3. Amnesty International Report “ The State of World’s Human Rights” (2012).

7. Austin Sarat, “Sovereignty, Emergency, Legality” (2010) Cambridge University Press,

8. B. Chakrabarty, “Mahatma Gandhi: A historical biography” (New Delhi: Lotus Collection,

13. H. T. Muzumdar, “Mahatma Gandhi: Peaceful Revolutionary” (New York: Scribner,

20. M. Juergensmeyer, “Gandhi vs. Terrorism Daedalus” 1 36(1), 30-39. Online:

33. Victor V. Ramraj; Arun K. Thiruvengadam, “Emergency Powers in Asia” (2009)