AFSPA - A Recommended Solution - Indian Defence Review

By Col Vivek Chadha (Retd.)

Issue Courtesy: Aakrosh | Date : 20 Feb , 2012

The chief minister of J&K, Omar Abdullah, demanded the removal of the AFSPA1 from certain areas of the state. The indication, according to media reports, is the districts of Srinagar, Budgam, Jammu and Samba.2 The army and the Ministry of Defence (MoD) have opposed this stand, citing Pakistan-based proxy war as a credible threat.3 Even as positions have hardened over a period of time, the decision for removing the AFSPA remains fiercely debated.

The act has become “a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.”

The genesis of the act lies in the British Indian Armed Forces (Special Powers) Ordnance, 1942; and after independence, in the Assam Maintenance of Public Order (autonomous districts) Act, 1953; the Assam Disturbed Areas Act, 1955; the Armed Forces (Assam & Manipur) Special Powers Act, 1958; and finally the AFSPA, 1958, with respect to the Northeast. A similar act was enacted for J&K called the AFSPA, 1990.

There have been two serious attempts to challenge the act. On 27 November 1997, the Supreme Court, in the Naga People’s Movement, of Human Rights etc vs Union of India case, upheld the constitutional validity of the act.4 The second was the formation of Justice (Retd.) B. P. Jeevan Reddy Committee to review the AFSPA, 1958, as applicable to the Northeast. The committee recommended the repealing of the AFSPA and its replacement by the Unlawful Activities (Prevention) Act 1967 (as amended in 2004) (UAPA) with the insertion of additional appropriate provisions.5

Arguments against the AFSPA

The arguments in favour of lifting the AFSPA have come from many quarters. Some major objections outlined over a period of time are:

The nature of challenge in J&K is characterised as a proxy war and not merely an insurgency. Therefore, since the security forces are practically facing an external adversary rather than an internal one, there is a need for an appropriate legal mechanism to deal with it.

The “peace dividends of the summer of 2011 must flow to the people.”6
The people must get a message that peace is returning to the state, which is evident from lower violent incidents during the recent past.7
Partial lifting of the act would facilitate opening negotiations with separatists, as they have made a similar demand.8
It could also test the waters in the troubled state, given low violence levels. This could subsequently facilitate extending the same, if the experiment is successful.9
The army’s demand for retaining the law in light of it being “detrimental” to security is “theoretical” rather than “practical.”10
The AFSPA is a relic of the colonial past, with its roots embedded in the 1942 law, which was drafted to suppress the Quit India Movement. This gives it an unsavoury flavour and strengthens the argument against it.11
The law is out of sync with fundamental values of human rights (HR). This argument is based on cases of HR violations in the past.12
The very principle of applying the AFSPA is questionable given the opposition of the state government. The withdrawal of the Disturbed Area Act, which is seen as a prerogative of the state, and by correlation the basis for the AFSPA to be applied, has been advocated as the legal measure to abrogate it.13
There is a vested interest of “security bureaucracies who have gained enormous power and influence” in retaining the AFSPA.14
Trade cannot improve unless the government lifts the AFSPA.15

In addition to the arguments against the AFSPA, certain generic arguments of the Jeevan Reddy Committee regarding the law are relevant for J&K as well.

The formation of an independent appellate body for looking into complaints against the armed forces operating under the act is also recommended.

“The act is too sketchy, too bald and quite inadequate in several particulars.”16
The act has become “a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.”17

Criticism from other analysts also recommends reviewing the act.

Commenting on the Supreme Court decision to uphold the validity of the AFSPA, 1958, A. G. Noorani called it a statute with “a license to kill” and questioned the judiciousness of not referring to Article 21 of the Constitution, which recognises the right to life.18
Noorani further refers to Section 4(a) of the act, which states, “. . . after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of death . . . .”19 He calls the section a “statutory obscenity” and goes on to say that it conveys “laxity,” especially given the protection against all legal proceedings without sanction of the central government.20
He further highlights the inadequacy of the existing law and the judgement in question to reinforce the requirement of “reasonable force” even in insurgencies.21
The formation of an independent appellate body for looking into complaints against the armed forces operating under the act is also recommended.22
Highlighting the inadequacies in the law, Charles Chasie and Sanjoy Hazarika felt that the law “legalizes inequality” with an individual forced to prove his or her innocence, failing which, he or she is presumed guilty.23 Taking the example of Nagaland, they stated that the act is the reason for a schism between the people and the government as well as democracy and has “helped to sustain the insurgency by violating people’s human rights.”24

Arguments in favour of the AFSPA

A number of arguments have been made in favour of retaining the AFSPA. Since the act is valid both for the states of J&K and the Northeast, specific aspects related to J&K will be discussed followed by generic issues.

Security forces need basic powers to fire at a terrorist, search a suspected hideout, arrest a terrorist and destroy a hideout to follow its mandate. Without these, such operations against terrorists cannot be carried out.

The lifting of the AFSPA could lead to the secession of J&K from the country.26
Partial lifting of the AFSPA is not possible as military establishments are located in areas like Srinagar and Jammu and need provisions of the act to ensure an effective security and intelligence grid.27
The movement of convoys cannot be limited to districts under the AFSPA, given the present alignment of major road axes in the region.28
There is a distinct possibility of districts where the AFSPA is lifted becoming safe havens for terrorists. These can then be used whenever pressure increases in areas where the army is deployed.29
All the sacrifices and efforts of security forces could be neutralised, pushing back the fight against proxy war by a number of years.30

The generic arguments in favour of the AFSPA that have been advocated are:

Most accusations of human rights violations against the army have been proved to be false, and these are instigated and inspired by sympathisers of terrorists.

The armed forces are employed as the last resort by the state when faced with critical national security situations. If protective as well as operational instruments are not provided to them, the possibility of their failure will be a national disaster and could have far-reaching repercussions.31
Security forces are deployed in a region to bring the situation under control. It is neither their choice to move into an area on their own accord nor their choice to leave without orders.32
Security forces need basic powers to fire at a terrorist, search a suspected hideout, arrest a terrorist and destroy a hideout to follow its mandate. Without these, such operations against terrorists cannot be carried out.33
The army cannot fight without basic powers to carry out its mandate. It needs operational flexibility and freedom to achieve its mandate.34
The army and the government have in-house mechanisms to deal with human rights violations, and swift and just action is taken against the guilty.35
The army has prepared its own list of dos and don’ts to ensure that the conduct of soldiers remains within the guidelines for operations.36
Most accusations of human rights violations against the army have been proved to be false, and these are instigated and inspired by sympathisers of terrorists.37

Analysis of the problem

The arguments address the issue of reviewing and lifting the AFSPA at a number of levels. These include the psychological, wherein the disconnect between the people and the state is a direct result of the implementation of the AFSPA. Further, the very moral authority of governance is questioned. It also highlights poor human rights implementation as a result of its provisions. The legal issue highlights lacunae within the law in relation to the provisions of the Constitution. The political argument views it as a reason for failure to arrive at an acceptable settlement. Socially, it is seen as an unbridgeable gap between the regions affected by it and the rest of the country.

The AFSPA has become a symbol of oppression. Despite serious attempts at preventing its misuse, it will continue to remain a psychological barrier between the local people and the government in general and the army in particular.

On the contrary, advocates of the AFSPA argue based on the army being the instrument of last resort and the need for both protection and operational freedom to achieve the desired mandate. Specific to the case of J&K, the element of proxy war further reinforces the army’s justification.

With these as the fundamental arguments governing the debate, it is evident that beyond a point, the two critical partners—the army and the state government—rather than evolving a coterminous approach in the fight against terrorism, may end up becoming a negative influence against the prevailing winds of change. And even if a solution is enforced, as a result of persuasion by either of the two, the resultant mood of despondency of the other would defeat the very spirit of resolution.

This is not to presuppose any inherent flaws in the arguments of the two sides. In fact, the respective points of view clearly indicate certain realities, which have to remain fundamental guiding principles if an acceptable resolution to the issue has to be found. A summation of these would be:

The case of J&K is unique, with the proxy war being the principal threat faced by the state.
This threat can be neutralised by forces only if they have the requisite freedom of action and protection against false charges and baseless accusations at the behest of sympathisers of terrorists operating from Pakistan.
The AFSPA has become a symbol of oppression. Despite serious attempts at preventing its misuse, it will continue to remain a psychological barrier between the local people and the government in general and the army in particular.
There is a need for greater accountability of security forces operating in the area.
The strategic decision to remove the AFSPA is the prerogative of the government—the agency that applied it. Inputs and advice from various agencies at the central and state levels must assist in this process of decision making. The army is one amongst these agencies.
The right to basic protection for security personnel in the region while they operate at the risk of their lives needs to be protected. This can however be simultaneously ensured through adequate safeguards against misuse of the law.

Editor’s Pick

Based on these ground rules, with protection and operational freedom as the key guarantors of the AFSPA, a comparative analysis with the UAPA as amended in 2008, which is considered the most comprehensive antiterrorism law in the country, will be done. However, since the UAPA is not specifically tailored to the immediate requirements of the operational deployment of the armed forces in J&K, additional recommendations of the Jeevan Reddy Committee for inclusion in the UAPA as amended in 2004 will be included to enable a holistic appraisal.38 There have been recommendations for the revocation of the AFSPA by other groups as well. Some of these include the Veerappa Moily Second Administrative Reforms Committee Report 2007, the Hamid Ansari Working Group 2007, and the UN Human Rights Committee 1997.39 However, given the detailed analysis of the AFSPA and the justification of the Jeevan Reddy Committee, the analysis will remain focused to its report.

One of the critical demands of AFSPA supporters is the inescapable requirement for the protection of the personnel of the armed forces during their operational tasks.

One of the critical demands of AFSPA supporters is the inescapable requirement for the protection of the personnel of the armed forces during their operational tasks. This concern is adequately addressed through Section 49 of the UAPA, which states:

“No suit, prosecution or other legal proceedings shall lie against – any serving or retired member of the armed forces or para-military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism.”40

The AFSPA as applicable to J&K also provides protection against prosecution unless sanction is obtained from the Central Government in Section 7 of the act.41 However, the UAPA goes a step further and endorses protection for retired personnel as well.

The second issue of concern relates to the powers granted as part of Section 4 of the AFSPA, to armed forces personnel of the rank of noncommissioned officers (NCOs) and above to include: 42

It is evident from the recommendation that all provisions have been retained to ensure the operational effectiveness of forces operating in an area. It is also seen that objectionable reference to “even to the causing of death” has been removed, which is justifiable given the purported indication to possible recklessness.

“. . . after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, any person who is acting in contravention of any law or order . . .
“. . . destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made . . . or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs . . .
“arrest, without warrant any persons who has committed a cognizable offence or against who reasonable suspicion exists that he has committed or is about to commit a cognizable offence . . .
“enter or search, without warrant, any premises to make any such arrest as aforesaid . . .”
“stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence . . .”

These clauses are seen as the basis for operational effectiveness and decentralised functioning of the armed forces. Section 4 gives powers right down to NCOs, who, along with junior commissioned officers (JCOs) and young officers, form the cutting edge of the operational army against terrorists. It is argued that these powers are the basis of undertaking proactive operations without losing invaluable time after the receipt of information. Given the fleeting opportunities that are more often than not the norm, these provisions are often the difference between success and failure to neutralise terrorists, stop an infiltration bid, or save a section of population in distress.

An analysis of the UAPA read along with recommendations for insertion of additional provisions by the Jeevan Committee Report, which recommends insertion of Section 41(A)(5)(B)(i-iii) in the existing UAPA, indicates the grant of similar powers to include:

The UAPA not only facilitates operations by the armed forces, it brings a unifying law for security forces. It also enlarges the canvas of jurisdiction by addressing unlawful associations, terrorist organisations, terrorists and forfeiture of proceeds of terrorism.

“use force or fire upon, after giving due warning, an individual or a group of individuals unlawfully carrying or in possession of or is reasonably suspected of being in unlawful possession of any of the articles mentioned in Section 1543 of this act . . .
“enter and search, without warrant, any premises, in order to arrest and detain any person who has committed a terrorist act or against whom a reasonable suspicion exists that he is likely to commit a terrorist act . . .
“enter, search and seize, without warrant, any premises, and destroy, if necessary, the firearms or any other articles mentioned in Section 15 from any premises/vehicle, vessel or other means of transport . . .”

It is evident from the recommendation that all provisions have been retained to ensure the operational effectiveness of forces operating in an area. It is also seen that objectionable reference to “even to the causing of death” has been removed, which is justifiable given the purported indication to possible recklessness. Thus, serious concerns cited with reference to Sections 4 and 7 of the AFSPA are suitably addressed through these amendments.

Hereafter, it would be useful to analyse some additional provisions of the UAPA, which undoubtedly reinforce the fight against terrorism and simultaneously strengthen human rights provisions.

The UAPA undertakes to provide powers for “dealing with activities directed against the integrity and sovereignty of India.”44 It defines a “terrorist act” in Section 15 by highlighting the threat to the “unity, integrity, security or sovereignty of India” or an “intent to strike terror in the people or any section of the people in India or in any foreign country” using a variety of terror devices.45 The causes of this threat have also been outlined.46 The act further specifies “terrorist” organisations and groups.47 This enables strict punishment, “which may extend to imprisonment for life.”48

A fundamental and often-overlooked aspect of protection of witnesses has also been incorporated in the act, thereby providing security to those willing to cooperate in the counterterror initiatives as also widen the network of the eyes and ears of government agencies.

Section 1 of the act indicates an all-India jurisdiction, which at the very outset removes the accusations of victimisation that have been levelled against the AFSPA in view of its selective enforcement in areas of the Northeast and J&K. In the long run, it also obviates the problem of duality of application of laws by implementing a single law.49

The UAPA not only facilitates operations by the armed forces, it brings a unifying law for security forces. It also enlarges the canvas of jurisdiction by addressing unlawful associations, 50 terrorist organisations, 51 terrorists52 and forfeiture of proceeds of terrorism.53 While dealing with these, the vital aspect of fund flow for terrorist activities is also addressed.

By establishing the jurisdiction of a tribunal, the UAPA, gives an opportunity to the accused to represent against his or her being declared “unlawful.” This provides the much-needed safety valve to the system.54

A fundamental and often-overlooked aspect of protection of witnesses has also been incorporated in the act, thereby providing security to those willing to cooperate in the counterterror initiatives as also widen the network of the eyes and ears of government agencies.55

The admissibility of electronic evidence has been introduced through Section 45 of the UAPA. It allows the admissibility of “interception of wire, electronic or oral communication” irrespective of other acts, including the Indian Evidence Act, 1872; the Telegraph Act, 1885; or the Information Technology Act, 2000.56

…powers to make a pre-emptive arrest without a warrant have been given vide Section 151 and Section 41. However, given the reality of application of this law, the nature of limitations constrains the task of undertaking counterterrorist operations.

There have been recommendations for the application of the Ranbir Penal Code (RPC) instead of the Criminal Penal Code (CrPC) as it is not applicable to J&K. This would be done after necessary amendments to give protection to the army, as is the case with the CrPC.57 The CrPC gives protection to forces under Sections 45 and 197-A, though the same sections are not available in the RPC. Section 45 states that “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 consent of the Central Government.”58 Section 197-B(2) further reinforces this provision. Similarly, powers to make a pre-emptive arrest without a warrant have been given vide Section 151 and Section 41. However, given the reality of application of this law, the nature of limitations constrains the task of undertaking counterterrorist operations.

Therefore, it needs to be noted that the CrPC is a law essentially for dealing with criminal activities. It was neither planned nor applied with the primary aim of neutralising terrorism-related acts. It is because of this that it falls short on the following aspects:

It does not include major antiterrorism initiatives undertaken by the UN for neutralising the threat.
Its procedures are essentially tailored for action by the police and not the armed forces.59 Therefore, while the CrPC would be adequate if existing policing capability could tackle the threat, a worsening situation does require specially tailored laws.
Issues that are critical subsidiary components supporting terrorism, including money laundering, funding, supporting, organising and participating in terror activities, are more explicitly and thoroughly covered by the UAPA.
The UAPA has been amended as late as in 2008, which makes it most relevant to present and emerging terror threats.

Recommendation

One of the solutions to the application of the AFSPA was put forth by the Justice Jeevan Reddy Committee when it recommended the repeal of the AFSPA as applicable to Northeast India and promulgation of the Unlawful Activities (Prevention) Act 1967, as amended in 2004, along with additional insertions suggested by the committee.

The issue of false complaints and charges has been the strategy of overground workers and terror ideologues to push security forces on the defensive. Strict measures and actions should be taken for any such attempts…

Based on the assessment of the AFSPA and the UAPA in conjunction with additional insertions, the following options are available for implementation in J&K:

Status quo is maintained, and the AFSPA is retained in its present form throughout the state.
The AFSPA is removed without any additional antiterror law being implemented.
The RPC is amended to include provisions of the CrPC in the four districts under discussion.
The AFSPA is removed, and the UAPA 2008 is implemented along with Jeevan Reddy Committee suggestions for insertions throughout J&K, though with changes as suggested in succeeding paragraphs (hereafter termed the amended UAPA 2008).
Same as the above, though implementation is done initially in four districts only by revoking their disturbed area status even as the AFSPA continues to remain effective in other parts of the state.

It is understandable that revoking the disturbed area status of certain areas cannot be a knee-jerk reaction. However, it is also felt that there is a need for bold strategic decisions to take the peace dividend to the next level through partial disabling of the AFSPA by removing some areas from the disturbed area status and imposing the amended UAPA 2008.60 In order to justify this argument, a comparative analysis of the two acts has been done in the paper. The analysis clearly makes a case for change. It is noteworthy that a number of provisions were added to the UAPA in 2008, in the immediate aftermath of the Mumbai 26/11 strike, to give additional powers to security forces, which makes the UAPA a potent antiterror law. Besides domestic concerns, UN resolutions and terrorism-related initiatives have also been incorporated through amendments.61 This, therefore, makes the law current and relevant to prevailing international concerns as well.

The life cycle of various violent movements in the country suggests that the periodic review for six months after the implementation of the UAPA may be inadequate and should preferably be increased to one year.

The following is suggested:

The shift to the amended UAPA 2008 could be considered either immediately prior to the onset of summers or after it in 2012, based on the prevalent security situation at that time.
The UAPA gives substantive powers to security forces functioning under its ambit. This needs to be balanced by preinduction training and long-term education regarding dos and don’ts to ensure respect for human rights and pursuit of best practices related to counter-insurgency/counterterrorism operations. Similarly, the education of human rights activists about operational ground realities is needed to bridge the gap between perception and reality.
The status of terror activity in the country must balance the need for application of the law. There is a need to revisit the amended UAPA 2008 provisions both in terms of existing limitations and possible misuse. A joint parliamentary committee must review the law every three years and make an endeavour to include views of people from affected areas, state administration, human rights groups and security forces.
The feedback mechanism catering to complaints must become more responsive and effective if credibility of the system has to be maintained. Periodic feedback to complainants must be ensured, including interim replies.
The issue of false complaints and charges has been the strategy of overground workers and terror ideologues to push security forces on the defensive. Strict measures and actions should be taken for any such attempts, thereby making it easier to differentiate between the genuinely aggrieved and agents of destabilising forces. A provision for penal action against the filing of false cases should be incorporated to dissuade the guilty.

There has also been a debate recommending the grant of these powers to JCOs to bring in greater responsibility. This aspect can be debated prior to implementation.

The following changes to Justice Jeevan Reddy Committee’s recommended insertions are suggested:

Immediate handover of arrested suspects is ideal; however, delay due to their capture and arrest in areas far from police stations in jungles, mountainous areas and high altitude must be taken into account and added to the necessary journey period. This is also in keeping with Clause 2, Article 22, of the Constitution of India.62
A number of provisions have been added to Reddy recommendations for insertion, including opening of fire after due warning, drawing of attention with a bugle and the presence of a magistrate.63 These are applicable during aid to civil authorities in order to quell a disturbance or a violent crowd. However, the possibility of the same during high-intensity military operations is impractical—more so in areas along the LoC.
Similarly, the possibility of “commanders of units” issuing “personal orders before opening fire” is impractical since most operations are led by NCOs and must have delegated powers to take proactive and reactive measures.64 This can, however, be followed if the commanders of units implies sub unit commanders, including NCOs. There has also been a debate recommending the grant of these powers to JCOs to bring in greater responsibility. This aspect can be debated prior to implementation.
The recommendation regarding the establishment of district-level grievance cells also needs reconsideration. While the sentiment behind it is understandable, its practical application could lead to a serious impact on the conduct of operations. In the past, a number of cases of false charges have been reported, both in the Northeast and J&K.65 Filing of frivolous charges has the negative potential of embroiling security forces in motivated enquiries and demoralising them according to a planned strategy of the adversary. On the other hand, even if prima facie guilt is found, can the recommendations have a binding impact? In the absence of the same, its usefulness remains limited.
The life cycle of various violent movements in the country suggests that the periodic review for six months after the implementation of the UAPA may be inadequate and should preferably be increased to one year.

It is, therefore, the bounden duty of the government at all levels and its agencies to ensure that any law that provides guidelines for the implementation of a people-centric mandate does not become more powerful than the people it is meant to serve.

Conclusion

The paper gives one amongst a number of solutions possible for meeting the security demands of the army as well as addressing popular sentiments. It is hoped that this additional option can be debated to enable a solution.

However, it needs to be understood that laws are mere frameworks. Ultimately, it is the acceptance, implementation and monitoring of the same that will allow the laws to work both in letter and spirit. It is, therefore, the bounden duty of the government at all levels and its agencies to ensure that any law that provides guidelines for the implementation of a people-centric mandate does not become more powerful than the people it is meant to serve. It is also imperative for an iterative process to keep it ready and relevant with changing times and circumstances.

`Notes and References`

The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, No 21 of 1990. Gazette of India, Extraordinary Part II, Section 1, 11 September 2011. The Ministry of Law and Justice. New Delhi.<http://mha.nic.in/pdfs/Armed%20forces%20_J&K_%20Spl.%20powers%20act,%201990.pdf>.
India Today. “AFSPA Has to Be Withdrawn from Some Areas of J&K: Omar Tells Army.” 9 November 2011. <http://indiatoday.intoday.in/story/afspa-omar-abdullah-indian-army-jammu-and-kashmir/1/159335.html>.
Vinay Kumar. “Omar Places AFSPA Before Delhi Durbar.” Hindu, 14 November 2011. <http://www.thehindu.com/news/national/article2626585.ece>.
Supreme Court of India. “Naga People’s Movement of Human Rights etc vs. Union of India.” 27 November 1997. <http://judis.nic.in/supremecourt/imgs.aspx>.
Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958. 6 June 2005. pp. 74–75. <http://www.hindu.com/nic/afa/>. The findings and recommendation of the committee were not declared formally. However, a copy of the same appeared in the Hindu and has been taken as the basis of this assessment hereafter.
India Today. “Partial Removal of AFSPA Necessary in J&K: Says Omar Abdullah. 9 November 2011. <http://indiatoday.intoday.in/story/omar-abdullah-jammu-and-kashmir-afspa/1/159315.html>.
Shillong Times. “AFSPA Must Be Withdrawn from Some Areas: Omar to Army.” 10 November 2011. <http://theshillongtimes.com/2011/11/10/afspa-must-be-withdrawn-from-some-areas-omar-to-army/.>
India Today. “AFSPA’s Partial Withdrawal a Step Towards Peace in Jammu and Kashmir.” 24 October 2011. <http://indiatoday.intoday.in/story/afspa-withdrawal-army-jammu-and-kashmir-omar-abdullah/1/157342.html>
Ibid.
Op cit, n. 2.
Samanth Subramanian. “The Long View: AFSPA’s Bitter Roots.” New York Times, 21 November 2011. <http://india.blogs.nytimes.com/2011/11/21/the-long-view-afspas-bitter-roots/#more-8705>.
South Asia Human Rights Documentation Centre. “Armed Forces Special Powers Act: A Study in National Security Tyranny.” <http://www.hrdc.net/sahrdc/resources/armed_forces.htm>.
Javaid Malik. “Revoke DAA, AFSPA will go: Experts to Govt.” Greater Kashmir, 28 October 2011. <http://www.greaterkashmir.com/news/2011/Oct/28/revoke-daa-afspa-will-go-experts-to-govt-53.asp>.
Manoj Joshi. “Jammu and Kashmir: AFSPA Rollback Makes Sense.” India Today, 2 November 2011. <http://indiatoday.intoday.in/story/afspa-rollback-jammu-and-kashmir-p.-chidambaram-omar-abdullah/1/158289.html>.
Sajad, Kralyari. “Kashmir Economic Alliance, KEA Demands AFSPA Revocation from Entire J&K.” Rising Kashmir, 15 November 2011. <http://www.risingkashmir.com/news/kea-demands-afspa-revocation-from-entire-jk-18042.aspx>.
Ibid., p. 74.
Ibid., p. 75.
A. G. Noorani. “Armed Forces (Special Powers) Act: Urgency of Review.” Economic and Political Weekly XLIV, no. 34, 22 August 2009. p. 8.
Ibid., p. 9.
Ibid.
Ibid., p. 10.
Ibid., p. 11.
Charles Chasie and Sanjoy Hazarika. The State Strikes Back: India and Naga Insurgency. Washington: East-West Centre, 2009. pp. 14–15. <http://www.eastwestcenter.org/fileadmin/stored/pdfs/ps052.pdf>.
Ibid., p. ix.
HighBeam Research. “AFSPA a Necessary Security Blanket for Armed Forces: MoS Defence.” <http://www.highbeam.com/doc/1G1-237566604.html>.
Pravin Swami. “Army Raises ‘Secession’ Spectre to Counter Clan to Lift AFSPA.” Hindu, 11 November 2011. <http://www.thehindu.com/news/national/article2615878.ece>.
Nitin Gokhale. “AFSPA Meet Inconclusive; Omar, Army Talk Tough.” NDTV.com, 9 November 2011. <http://www.ndtv.com/article/india/afspa-meet-inconclusive-omar-army-talk-tough-148371>.
South Asian Idea. “AFSPA: The Larger Picture.” 16 November 2011. <http://southasianidea.com/internal-security/afspa-the-larger-picture/>.
Times of India. “Omar Meets Central Leaders, Told Not to Push for ‘Immediate’ Withdrawal of AFSPA.” 15 November 2011. <http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401090_1_afspa-samba-and-jammu-partial-withdrawal>.
Op cit, n. 28.
Harinder Singh. “AFSPA: A Soldier’s Perspective.” IDSA Comment, 6 July 2010. <http://www.idsa.in/idsacomments/AFSPAASoldiersPerspective_hsingh_060710>.
Ibid.
Ibid.
Op cit, n. 31.
Sreenivasan Jain. “Kashmir: The Riddle of AFSPA.” NDTV.com, 21 November 2011. <http://www.ndtv.com/article/india/kashmir-the-riddle-of-afspa-151799>.
A. K. Antony. “Antony Asks Army Top Brass to Ensure Non-Violation of Human Rights at Any Level.” Press Information Bureau, Government of India, 18 December 2009.<http://pib.nic.in/newsite/erelease.aspx?relid=56223>.
General V. K. Singh. “Most Cases of HR Violation Are False.” Daily Bhaskar, 6 January 2012. <http://daily.bhaskar.com/article/most-cases-of-hr-violation-false-1486151.html>.
Op cit, n. 5.
Working Group on Human Rights in India and the UN <http://www.wghr.org/repeal-afspa.html>. For a legal perspective, see Ali Ahmed. “Reconciling AFSPA with the Legal Spheres.” Journal of Defence Studies 5, no. 2, April 2011. <http://www.idsa.in/jds/5_2_2011_ReconcilingAFSPAwiththeLegalSpheres_aahmed>.
Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008), Section 49 (b). Op cit, n. 20. Italics by author.
Op cit, n. 1.
Op cit, n. 1, Section 4 (a) to (e).
Section 15 of the UAPA includes “bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or any other substances (whether biological radioactive, nuclear or otherwise) of hazardous nature.”
Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008). Op cit, n. 20. Statement of Objectives and Reasons.
Ibid., Section 15.
Ibid.
The Jeevan Reddy Committee highlights four key advantages of the UAPA, including defining terrorism, identifying the organisations and giving an all-India outlook to the act, thereby obviating charges of discrimination and its comprehensive character with the ability to deal with unlawful organisations, terrorists and investigation, trial and punishment for terrorist acts. Op cit, n. 5, pp. 75–78.
Ibid., Section 20.
However, this objective will remain limited until the UAPA is applied uniformly after the withdrawal of the AFSPA.
Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008). Op cit, n. 20. Chapter II and III, Sections 3–14.
Ibid., Chapter VI, Sections 35–40.
Ibid., Chapter IV, Sections 15–23.
Ibid., Chapter V, Sections 24–34.
Ibid., Sections 3–9.
Ibid., Section 44.
Ibid., Section 45.
Arjun Sharma. “Omar Abdullah Offers to Amend Ranbir Penal Code for AFSPA Withdrawal. India Today, 25 November 2011. <http://indiatoday.intoday.in/story/afspa-withdrawal-omar-offers-to-amend-ranbir/1/161498.html>.
The Code of Criminal Procedure 1973, Act No 2 of 1974, 25 January 1974, Section 45, <http://mha.nic.in/pdfs/ccp1973.pdf>.
Issues related to mobs, unlawful assemblies, opening fire and presence of magistrate are some aspects that would be unsuitable in scenarios where the army deals with terrorists employed in a proxy war.
Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008), <http://nia.gov.in/acts/The%20Unlawful%20Activities%20(Prevention) %20Act,%201967%20(37%20of%201967).pdf>.
Ibid., p. 2.
Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, 6 June 2005. Op cit, n. 5, p. 16. The report refers to the constitutional provision by further stating that a period of 24 hours is available for handing over the accused, excluding the journey period.
Draft chapter VI A to be inserted in the Unlawful Activities (Prevention) Act 1967, Section 40 A(5)(b). Op cit, n. 5, p. 89.
Ibid., p. 90.
The author is aware of a number of army personnel who were forced to move on attachment to units for inquiries on false cases filed against them. In some instances, the FIRs were filed against officers who were not even present in the areas indicated