PROCEEDINGS

Towards Ending Armed Violence, Sustainable Peace & Reconciliation :

Assessing the Call to Repeal the Armed Forces (Special Powers) Act 1958

Held on 8 September 2010 at India International Centre, New Delhi

Organised by

Manipur Women Gun Survivors Network,

Control Arms Foundation of India in collaboration with
People‟s Union for Civil Liberty, Indian Social Action Forum and KRITI

Supported by Heinrich Boell Foundation

____________________________________________________

On 8th September, 2010, Control Arms Foundation of India, Manipur Women Gun Survivor Network in
association with People‟s Union for Civil Liberty, Indian Social Action Forum and KRITI with support of
Heinrich Boell Foundation conducted a conference on the Armed Forces Special Powes Act under the
Northeast India Women Intiative for Peace Project. It was organized to assess the call to repeal the Armed
Forces Special Powers Act of 1958.

The conference was held in India International Centre and was attended by about emminent 80
personalities from various organizations, armed forces personnel, academicians, activists, Ministry of
Home Affairs, Defence and External Affairs and journalists from mainstream media, all of whom share
an interest in bringing about changes or amendment to the Act.

Objective of the conference:

To discuss the call for repealing the Armed Forces Special Powers Act
To look at measures to make amendments if total repealing is not possible
To understand and apply constitutional and internationally known United Nations guidelines
and other International humanitarian Laws and International Human Rights Laws
To examine various recommendations like the Jeevan Committee reports on the Armed Forces
Special Powers Act and various constitutional challenges that has been put forth by other Human
Rights Organizations like the Naga People‟s Movement for Human Rights and the National
Commission for Human Rights, etc
To draw a blue print for “Ending Armed Violence, Sustainable Peace & Reconciliation” in several
states of India‟s Northeast that have been shattered by years of conflict.
To involve women in drawing this blue print for peace and reconciliation.
Any other relevant issue

List of Resource Persons:

1. Mrs. Lourembam Nganbi

President Apunba Nupi Lup (ANUL), Vice-President Apunba Manipur Kanba Ima Lup
(AMKIL) and Secretary of External Affairs of United Committee of Manipur

1
2. Mr Sanjoy Hazarika, Saifuddin Kitchlew Chair and Professor, Jamia Millia Islamia, and
Managing Trustee, Centre for North East Studies and Policy Research

3. Ima Sinam Chandragini

Ima Sinam Chandragini hails from Malom Village in Manipur. She is a survivor who lost two
sons in the Malom Massacre of November 2000. She is currently member of Manipur Women
Gun Survivor Network

4. Shri Dr. Thokchom Meinya

Member of Parliament, Lok Sabha, Manipur

5. Mr E N Rammohan
Former Director General of the Border Security Force.

6. Mr Siddharth Varadarajan
Chief of National Bureau, The Hindu.

7. Mr. S. Iftikhar Gilani

New Delhi Bureau Chief, Kashmir Times

8. Dr Michael Koeberlein
Director, Heinrich Boell Foundation

9. Dr N. Manoharan
Senior Fellow, Centre for Land Warfare Studies

10. Lt General (retd) Dr BS Malik

President, Control Arms Foundation of India

11. Ms. Meenakshi Ganguly

South Asia Director, Human Rights Watch

12. Ms. Anjuman Ara Begum

Anjuman Ara Begum is currently pursuing her Ph.D in Department of Law, Gauhati
University, Assam, India.

13. Mr Yambem Laba

Former Member, Manipur Human Rights Commission

14. Mr Raj Pushkar

Mr Pushkar Raj is the National General Secretary of People's Union for Civil Liberties„
(PUCL)

15. Mr Ravinder Pal Singh

Defence Analyst

16. Mr Wilfred Dcosta

General Secretary, INSAF

17. Ms Binalakshmi Nepram

Secretary General Control Arms Foundation of India and Founder, Manipur Women Gun
Survivor Network

2
Detailed Reporting from the Conference

Inaugural Session 1

The inaugural session was chaired by Lt General (retd) Dr B S Malik, President of Control Arms
Foundation of India. The session started by lighting of a lamp by Ima Chandragini. Ima Chandragini
who lost two of her sons in the Malom massacre of November 2000 was very emotional as Ms
Binalakshmi explained how one of her sons, who won the National Bravery Award at the age of 5 years
from the then Prime Minister of India, Mr Rajiv Gandhi and the President of India was shot to dead by
Assam Rifles personnel.

The first session of the seminar started with welcome note from General B S Malik. He expressed a
warm welcome as well as hoped for solidarity amongst all those who were present at the seminar. He
stated that it was an important day for all important groups were brought together to access the AFSPA
1958. He also went on to state that Ambassador from Myanmar, Bangladesh were present, talking of the
vision 2020 in the conference. If the economic condition is improved it will be prosperous part of India.
But today we are discussing security of the region. This will give prosperity to the region. The problem of
this area will continue if the security is not taken into consideration CAFI is saying that we need to focus
on arms given to civilians through licenses. He also said that CAFI is seeking support for the call to repeal
AFSPA. There is a conflicting news report on the repeal of AFSPA. We will discuss what the right course
of action today is. A mother doesn‟t want to understand the debates she wants to know why her child has
been killed. Authority of the government is not primarily the authority of the law, nor the authority of
force, but the authority of the community itself. Laws are obeyed because the community accepts them as
corresponding on the whole to its concept of justice. The power of a government cannot be a pure
political artifact. CAFI met the Home Secretary and informed about the arm proliferation. We are
reaching out wherever we can

A following introduction to the conference was provided by Ms. Binalakshmi Nepram, founder of the
Manipur Women Gun-Survivor Network and the Secretary-General of the Control Arms Foundation of
India. Ms. Nepram expressed her gratitude for all those who had arrived and explained her personal
motivations behind her work and her determination to succeed in repealing the Armed Forces Special
Powers Act. Ms Binalakshmi Nepram said, ” I hope we will be able to have an important discussion
today. CAFI was founded in 2004. The AFSPA debate started with an idea when I asked my father, why
Manipur and other states are burning. The day I was born there was curfew. Manipur has the highest
killing in the country. My father said he has no answer. We have to find where the answer lies. Last year
we came to IIC and asked for support to organizize north east women initiative for peace. We had no
money. IIC opened it door for the whole day deliberation. We had 60 women. But the deliberations were
helpful. It is women who pick up the pieces while men fight the war. We had the second meeting on 7 th
August 2010 in Guwahati. We have several organisations that helped us.”

Dr Michael Koeberlein, Director of Henreich Boell Foundation stated that it was great honour to be at
the conference. On behalf of HBF he congratulated CAFI for the hard work. He said HBF was
commitment to gender democracy. There is a common understanding between CAFI and HBF to work
together for non-violence resolution of conflict. He also mentioned that since independence, India has
AFSPA as a challenge. It was passed for so the called disturbed areas, then applied in Jammu and
Kashmir. India is a democratic and ruled by law. However, AFSPA contravenes International Human
Rights Laws. AFSPA is rarely discussed among the policy makers and government arenas. This event
gives all to speak, share grievances and controversial disputed topics. The AFSPA requires an open
discussion. Different perspectives are brought together in this conference, he mentioned and wished it
success.

The inaugural address was made by Mr Yambem Laba:

He began his session by thanking Bina. He said it was ironic to think that AFSPA which came back on
15th August, 1942 when Linthiggow signed to control the situation in India. After 1857, the British crown
affairs from East India Company. India became a colony in 1857. It took 84 years for British misrule to

3
pass AFSPA ordinance to combat quite Indian movement. It took only 8 years for the independent India
to resort to such draconian rule again. The ordinance was applicable to Assam and Manipur. The
havaldars were given wide discretionary power unlike the British version. It came into 1958. More
information has been given in the background paper. A Member of Parliament at that time talked against
the act. The discussion lasted 3 hours in Lok Sabha and 4 hours in Rajya Sabha. In 1972 the act was
amended to keep it in force all over the northeastern states. The power to declare disturbed area can be
done by centre. Now centre can declare any areas in North East as disturbed area which having asking
for the ratification for the state government. Suffering increased over time. The challenges of this Act first
came from Indrajit Baruah. In 1980 he filed a petition challenging the constitutional validity. In 1984 it
transferred to the Delhi High Court and subsequently to the Supreme Court. The second petition was
filed by three of us, Mr Loken, an advocate, and myself and we formed the human rights forum Manipur
on December 10, 1979. About 50 people joined us. I called for support from the people. We went to
Manipur for peoples support. There was a people resistance. Repression creates resistance. We were
revolutionist. Today human rights activists are holy cow. Sept 9, 1980 declared the entire state of Manipur
as disturbed area. The PLA movement started then. Morarjee Desai said we just came out of the
insurgency we don‟t want another emergency. So AFSPA was revoked. It was intended only for three
month. On 10 December 1980, we moved to Supreme Court. Our lawyer was Mr Altaf. We could not pay
money to him. The Advocate refused on the ground that it a political case. The Naga Peoples Movement
for Human Rights filed in November 1982. That became a history. Now four cases were filed. It took 17
long years to act on these petitions. Koteshwar Singh, a BA honours student here he became a lawyer and
now he is a Advocate General in Manipur. It took time for me to brief the NHRC about AFSPA. And they
filed petition. We lost on moral ground. The Supreme Court talked about the operative part of the Act
because of the Supreme Court ruling in Manipur. On March 11 1999, Manipur state cabinet discussed for
the first time that there is a ruling like this. The first shock came in 2004. In front of the Kangla Gate and
the second largest army became the rapist army in the country. Arrest and killing of Manoram Devi by
Assam Rifle triggered this protest. The Prime Minister came and took Assam Rilfe out of Kangla and said
the act will be made more humane. In terms of the control of the arms movement there, in 1958, only the
Nagas or few groups were there as militants. In 2010, the number of militant groups has spread all over
the North East. Every ethnic group has their own group. Any demand like inclusion in the schedule caste
list, radio programme in their language etc. I was a journalist. I became a member on December 10, 1998
as member of Manipur Human Rights Commission. As a member I am not supposed to socialize in a
gathering. My village was raided. The major said I do not recognize the chief minister of Manipur. This
was said by a major in Manipur. The Brigadier reported that I was a sympathizer of the underground.

The Army threatened a lawyer. The third case was Captain Pillai who led 50 soldiers of Indian army to
close down the entire powers system in Manipur. It was because the day before there was no power
supply to the camp. He said that he was armed by the AFSPA and that he did‟t recognize the Governor of
Manipur.

It is the government who should repeal and amend this act now. Neither Pakistan nor China does not
have such an act over its rebellion. So it is time that government either repeal or amend the Act now.

The Chief Guest address was made by Dr Thockchom Meinya, Member of Parliament, Manipur. He
started by stating that he was sad that there is bad situation in his home town and all over the country.
He mentioned that he is in the parliament for last 6 years and that at the moment there is a very
interesting scenario before the Government of India to deal with this act. After long period of time its
application became redundant and it was to check the insurgency but now it has been going everywhere
and insurgency groups has their own groups now and has crossed 40 groups now. One fact is that a very
important administrative reform commission recommended for the repeal of the act and also with a rider
in the recommendation. Sharmila Devi‟s case, Prime Minister came to Manipur and dealt with the
situation. He assured that the act will be given a humane touch. The committee formed the Jeevan Reddy
Commission. Now these files are with the Government of India. Manipur is boiling. Anything can
happen anytime. He also said “From my side, I can say the things are now only worsening. I don‟t know
whether you know the latest judgment by the Gauhati High Court upheld the constitution of the enquiry
commission on Manorama‟s case. This is a national act but the application till date is regional. The
Government of Manipur declared that Imphal Municipal Area is not disturbed. The same thing is going

4
to happen in Jammu and Kashmir if the state government does this. The centre can declare it as
disturbed. This is a legacy of the 1942 British law”.

He also stated, “We have to give stress on education. Inspite of the legislation, there are certain things
beyond our control. When POTA was repealed we thought this will be repealed too but it didn‟t happen.
I belong to Indian congress. Now we are putting our heads together. Whatever has happened so far
should not be continue under this act. We are serious now and we are working together to stop the
suffering of the people. We would like to have a copy of the recommendation so that along with other
MPs we will see what we can do on our part. At this moment we have to take things seriously. Thank
you”

Mr Sanjoy Hazarika, a noted journalist, scholar and writer, said there was very little that could be said
anew about AFSPA. The stories are unending and grim. The situation in Kashmir is an enduring
reminder of the absolute failure of the state to values the lives of the people. A senior police official who
served in Nagaland told me recently that “My feeling is that AFSPA has not been used but misused and
abused.” He said there were safeguards for the security forces but “what are the safeguards for the
common people.” Mr. Hazarika referred to the Kohima incident where Rashtriya Rifles personnel
mistook a tire burst for an ambush and opened fire, killing seven persons.

Even senior officer say that the Army should not be used against the movements in the country. It should
be used for its main task or external enemies. One of the impacts of the conflict is the post-trauma stress
syndrome which is a major problem among civilians and also among the security forces.

There is another violence that cannot be overlooked and that is the violence by the non-state actors. This
point needs to be address as well. I don‟t want to divert from the theme but this also needs to be
discussed.

AFSPA is a law. It‟s been around for 52 years; the test of a law is that whether it has successfully reduced
a specific challenge. In this case the situation has worsened. There is a cabinet note drafted by the Home
ministry to amend the act. It hasn‟t come before the cabinet because there is resistance from the army.
This raises a clear political issue: Should there be an army veto over civilian authority? If we don‟t
address this issue we are going into a very dangerous area. But there must be a legal mechanism that
enables the Defence Ministry to deploy its forces in conflict area. The Jeevan Reddy Committee did not
propose to amend the act, it proposed its repeal. We recommended the amendment of the Prevention of
the Unlawful activities Act to deal with the situation. We also suggested grievances cells to meet the long
standing anguish of the people whose dear ones were taken away, disappeared or killed. Peole are not
prepared to accept that that the army can pick up innocent civilians and make them disappear. We need
to look into this aspect.

Mr. Hazarika said he had a suggestion for Dr Meinya and that the North East MPs Forum should take
active role in the issue. However, no one should be above the law, the law should not be discriminatory.

General B S Malik then went on to say that this is a disturbed area. If the government doesn‟t declare an
area disturbed then armed forces cannot go there. The civil authority must admit that they cannot handle
the situation anymore. It is the similar power as the police have. Because unless such a power if given, an
armed forces cannot act is an area.

Ms Meenakshi Ganguly, South Asia Director, Human Rights Watch began by saying that the question of
how terrible the act is has been debated for a long time and there was broad consensus about it now.
Civil society groups in Kashmir, Manipur and other places in the northeast have long campaigned on this
issue, and had succeeded in bringing it to national attention. AFSPA is now discussed on national
television channels. The Home Ministry has acknowledged that some aspects of the act have problems.

However, the government is yet to act on this issue. That is because there are two groups that now
oppose this. Nationalist groups believe that to repeal this law will encourage anti national elements. This
is easy to answer. There are political issues that lie at the heart of these debates, and the Army has no role

5
in those. However, human rights abuses that occur because of the deployment of the army under AFSPA
have led to further anger, and actually pushed people to opt for violence. Are you going to perpetuate a
system where more people are choosing militancy, purely to avenge human rights violations because the
perpetrators are not punished ?

The other group that opposes repeal are those that speak for the Army. They suggest that repealing the
law will hurt troop morale. Unfortunately this is not a correct assessment. Most soldiers are not human
rights violators. If there was a system of accountability, they would probably feel better empowered to do
their job. But when a colleague commits crimes to seek promotions or recognition, and the law prevents
that person from being prosecuted, that is much more likely to affect troop morale. And it will create a
force that then chooses the path of human rights violations.

AFSPA has become an emotional issue now. People hate the law. Public opinion has to be respected.
People don‟t believe in AFSPA any more. This law could not protect the people and hence it should be
repealed.

Session II Background and Assessing the Impact of 52 years of Armed Forces (Special Powers) Act
1958

Session II was chaired by Mr E N Rammohan, former Director General of Border Security Force.

The first presentation was made on the topic, “AFSPA: Is the Review Necessary?” by Dr N. Manoharan,
Senior Research Fellow, Centre for Land Warfare Studies. He said said that there are two contrasting
opinions on AFSPA. At one end of the spectrum, it is said that the Act is an „unnecessary evil‟. It gives a
virtual power to kill people. It also violates the constitutional and international norms. On the other hand,
it is held as „necessary good‟. Those who take this line argue that it is impossible for the Army to operate
without a legal cover. Sufficient powers and autonomy of operation is required to fight the „invisible‟
enemy who is now more sophisticated, amorphous, networked and more lethal. Without immunity, the
security personnel will face unnecessary litigations. The local judiciary cannot deliver proper justice on
these cases because of fear of armed militants. „Disturbed Area‟ is declared by the government and not by
the Army. The Army in fact is not interested in involving itself in counter-insurgency. The Army also has
excellent track record in handling human rights violations internally. Most importantly, Indian Army
fights with a doctrine of „iron fist with a velvet glove‟ and uses no heavy fire like artillery or air force as in
the case of Afghanistan and Iraq. Moreover, all counter-insurgency operations of the Army are guided by
three internal documents: 10 commandments issued by the COAS in 1993, supplementary
commandments issued in 2005 and a detailed „Dos and Don‟ts on AFSPA‟. These documents are strictly
abided by while implementing the AFSPA.

Nevertheless, AFSPA requires review. Those provisions considered controversial in Section 4 should be
amended in the light of past experiences. Ambiguities in section 3, especially on how to define a
„disturbed area‟ and section 5 on the time period for handing over a person to the nearest police station
should be spelled out more clearly. Even Supreme Court judgment does not throw much light on it.
Ambiguity leads to wide discretionary powers. Value additions could be made to the Act by
incorporating „sunset‟ clauses and periodic reviews, say every six months or one year. The solution lies in
addressing larger socio-political and economic issues. Mere repealing of the Act will not solve the issue.
At the macro level, human security component has to be built in every special law keeping in mind that
India is a democratic country. All such laws should be passed only after careful scrutiny and intense
debate. Any security law should not be allowed to widen psychological gap between the state and its
subjects. At the ground level, to bring down human rights violations, consultative bodies between the
Army and civil society groups can be created to discuss the issues and bring out more transparency in the
implementation of AFSPA.

6
Ms Anjuman Ara, Research Scholar, Guwahati University spoke on the topic, “AFSPA, Right to Life and
Human Rights Norms”.

India has signed or ratified a number of international human rights treaties and has voluntarily accepted
the legal obligation to abide itself by the universally accepted human rights standards. International
Covenant of Civil and Political Rights (ICCPR) is one among those treaties. India has not signed the
additional protocols to the Geneva Conventions. Nonetheless, Article 3, common to the four Geneva
Conventions of 1949 is applicable in the context of armed conflict prevalent in North East India.

In India, Capital punishment is included as a penalty in a number of Acts, such as the Indian Penal Code
and penalty provisions of national security legislation. Under the Indian Penal code, eleven offences may
be punished by death. These offences are (1) abetting any death eligible offences, waging war against the
government, abetting mutiny by a member of the armed forces, fabricating false evidence with a intent to
secure conviction of another person for a capital offense provided that such a conviction occurs , abetting
the suicide of a child or an insane person etc.

The UN Special Rapporteur on Extra-judicial, Arbitrary and Summary Execution, Philip Alston in his
report to the Commission on Human Rights dated March 27, 2006 expressed concern over AFSPA on the
ground that it violates non-derogable provisions of international human rights law as AFSPA empowers
security forces not only to arrest and enter property without warrant but also gives them power to shoot
to kill in circumstances where members of the security forces are not necessarily at imminent risk. This
conclusion followed from section 4 (a), (c) and (d) of the AFSPA.

Various judgments have been pronounced by the Supreme Court of India and Gauhati High Court on the
allegations of violation of right to life under AFSPA. The Courts found armed forces acting under AFSPA
guilty of violation of human rights in particularly right to life and ordered compensation and also
ordered prosecution for the perpetrators in several cases. Several inquiry commissions appointed under
Inquiry Commissions Act 1952 found in their investigation that armed forces violating the inalienable
right to life.

AFSPA violates core inalienable right called right to life and hence the Act should be repealed.

Dr. Yaringan, Professor, Delhi University began by saying that lack of will to solve the issue AFSPA is
nothing but an excuse. AFSPA is to be in a disturbed area. Is northeast a disturbed area? How long will
continue with this declaration. Is AFSPA is a solution, who declares what is „disturbed area‟? When the
situation is out of control, government declare it as disturbed area. There is a complete lack of will from
the government of India. Why the elected representative are doing like this.

The resources of Manipur and the problem is grapping this resources. There are nexus between politician
and the insurgents. The army, politician and insurgents are creating problem in Manipur. We need to see
the situation in Manipur. It is becoming worse and worse, if steps are not taken, Manipur will be
completely in chaos in next 10 days. Manipuri intellectuals are migrating from Manipur. There is no way
if the government doesn‟t take serious note f it.

Mr E N Rammohan, said the Armed forces are required in some case as some speakers pointed out. He
also stated the following, “In the rural areas, police stations are far. Sometime you have to walk two to
three kilometers to meet a police. Infrastructure is helping the insurgent. Idea giving power to army is
that police are less in number and they cannot go for anti insurgency operations. I don‟t think the act is
draconian. The person working under it is draconian. General Nayar ordered anyone arrested as
suspected terrorist to be brought in Kangla fort within 24 hours. A police unit was set inside Kangla and
interrogation took place. He made sure that no one is tortured. He later became governor of Manipur and
he was respected though he resigned later. The road of Impahl and Churachandpur is militant zone. I
gave a direction that if someone commits violation I will make sure that they are prosecuted. This
warning was enough. AFSPA is not wrong. It is the leadership is wrong. Series of massacre took place in
Manipur. Responsible Leadership is required to ensure that AFSPA is not abused or misused”

7
General B S Malik stated that there is not a single case where advocates dealt with cases against militant
and produced evidences. AFSPA is not applied in Maoist dominated area. Why? It is not fight against
among the politicians. In 1485, it was found 97% were wrong. 91% were punished. How many
organizations are there, that has punished the other department? The biggest threat in India was Kargil.
The emergency power was not invoked because there will be difficulty. Indian army fought and they
saved the nation without invoking the law like AFSPA. Let‟s give a thought that something needs to be
done.

Mr Yambem Laba also commented that in 1999, Md Tayab Ali disappearance. The onus lies on the army
to prove that Tayab Ali was not in their custody. The High court ordered CBI enquiry and CBI found that
one police, one army, were involved and their names were published. The Government of India has not
proceeded with the prosecution.

Session II: AFSPA: What is the way out? A holy Book or National Security Tyranny? was chaired by
Mr Raj Pushkar, National General Secretary, People’s Union for Civil Liberty.

Mr Raj Pushkar stated that the usual answer is to quell the insurgency. He stated “Then let‟s look
theoretically if AFSPA can quell the insurgency: my simple thesis is no. History tells us that draconian
laws cannot be successful to quell an insurgency that is mass support based. The state has never been
successful anywhere to do so and has ultimately been forced to accept the demands of the people.
Secondly, the repressive laws have a tendency to alienate more and more people of a particular area,
thereby expanding he support base of the insurgency, thus becoming counterproductive. So the very
nature of the insurgency needs to be looked at whether it is armed or the mass before we devise the
method to counter it. The issue becomes complicated if you do not do so and to combat an armed
insurgency you use repressive measures in form of some laws or tactics that convert an armed insurgency
(that the state must put down performing its constitutional duty) into a mass insurgency”.

He also stated that the crux of the matter is that an armed insurgency needs to be handled very carefully
and dispassionately so that it does not get converted into mass support based insurgency that expands its
bargaining weight to the extent that a situation of deadlock emerges like in Kashmir. Alternatively when
the state uses very repressive laws to combat mass based insurgency it progressively begin to alienate a
whole mass of people who seethe with anger and frustration and wish to be part ways with the its
sovereign identity like in the North East.

He ended by stating the following, “Given the track record of the Indian state at times one questions
whether keeping insurgency alive is not a part of the Indian foreign policy due to geo-strategic reasons?
If that is so, then it no less than colonial and merits to be opposed. So wherever this draconian law
(AFSPA) is being used in the country it is ineffectual in its desired objectives. On the other hand in the
process of illusory gains to combat insurgency through military laws the state becomes guilty of mass
killings, rapes, disappearances, torture and loses legitimacy and moral authority to govern. It is a serious
challenge and a crisis situation that the Indian state is facing. It has to choose a way”.

In Mr Pushkar’s opinion, “The way out is to revoke this law as Indian security and integrity cannot be
maintained when people in the north east and Kashmir feel insecure day in and day out. One would and
should legitimately ask whether Indian illusory security should be maintained at the cost of the mass
human insecurity of the people of the north east or Kashmir or any where this law is being used. It is
morally and legally unjust and unsustainable for long. We have tried for over fifty years to achieve
whatever desired objectives in these regions by using these laws and we have not succeeded. Now let‟s
experiment with ten years without such military laws to achieve those objectives. Let‟s have free and fair
elections in which all shades of people participate and popular government take charge of its affairs. Let‟s
not decide fate of the leadership and governments in these areas sitting in New Delhi according to our
preconceived solutions to the problems, lets trust people if we are really a democratic republic”

Mr Ravinder Singh, noted Defence Analyst, in his presentation stated that the problem is not AFSPA, but
bad governance and that quite often the public debate gets distracted on an issue which is not the

8
fundamental one. The basic problem confronting the country is not of repealing or diluting AFSPA, but
fundamental questions are:

Is their a role for armed forces in implementing social contract between the democratic state and
the society? Social contract in democracies expects individuals to give up their freedoms in
exchange of receiving common good from the state, such as: social justice and public safety.
Can the armed forces in disturbed areas provide the public freedom from fear; political identity
and dignity; justice delivery, safety and stability? Obviously they can‟t. The state therefore has to
build up dedicated professional capacities for restoration of governance; public safety and
stability; socio-economic development; justice delivery; civil liberties and social dignity in the
disturbed areas.

He also mentioned that military‟s preference for AFSPA is based on its need to avoid
frivolous/motivated complaints that can be lodged against its operations. AFSPA provides the
military with relative immunity from prosecution for errors of tactical misjudgment. But abuse of AFSPA
by some members of the military has even larger negative consequences for its discipline if allegations of
human rights violations go uninvestigated and unpunished. An enabling legislation is needed that
investigates impunity of action by the security forces and punishes violators of human rights. Mr Singh
also opines that the MoD bureaucracy or the political and military leadership that denies sanctions for
prosecution of such abuses, understand the grave long term consequences of their inactions.

The security sector operation in disturbed areas has to build public confidence in equality before law.
Even though armed forces have very difficult tasks of exercising restraint under hostile fire, they must
remain accountable to due process. By repealing AFSPA, the state will create inertia in conduct of
military‟s operations for overcoming armed groups. The patrol commanders will start avoiding contact
with armed gangs, as there have been a number of such instances where police personal have chosen to
surrender their weapons to the militants instead of engaging them.

He also mentioned that he does not think the call to repeal or application of AFSPA provides solution to
the problem of insurgency, caused by deprivation of social justice, which will remain in disturbed areas
due to:

Failure of the state to deliver access to justice to civil society; participative and pluralistic politics
at local levels (district/tehsil/block levels); equality before law; accountability of civil and
military officials which includes: moral, administrative, political, legal/judicial, constituency
related, and professional. .
Alleged human rights abuse by the armed forces should be verifiable through due process and
punishable according to law. The administrative denial by the Ministry of Defence to allow
prosecution of offenders from the military needs to be replaced by an enabling legislation that
must be provide a right to petition and obtain investigation of human rights violations by the
armed forces.
Lack of socio-economic development, and low opportunities for educational growth and skills
development for gainful employment of youth.
Opportunities for corruption lead to collusion between local politicians and armed gangs to
mobilize support through coercion and cultural sympathies of the larger segment of the society.
This collusion creates a vested interest in maintaining insurgent conditions.

According to him, “Unless the Central Government takes concurrent action on all the above
shortcomings, which means delivering good governance, the problem will grow from bad to worse. The
problem will not be solved by increasing deployment of armed forces, with or without AFPSA”.

He ended his presentation by stating that the reasons for insurgency in Kashmir are quite different: it is
separatist assertion for political autonomy based on religious identity. Problems in Kashmir will also
grow as religious separatism as extremists gaining ground in Pakistan. But in rest of the country, the
problem will also grow because the politicians, both at the state and the centre, refuse to accept that bad

9
governance is the reason for the larger problem, which in turn has spawned problems such as abuse of
AFSPA by the security apparatus.

Mr Iftikhar Gilani, Bureau Chief, Kashmir Times spoke on AFSPA and its impact on Kashmir. He
mentioned that accountability to any power is a prime necessity. He shared the January 6, 1993 in Sopore,
where 62 people were burnt alive. An enquiry has brought nothing. Jallil Andravi, case: Major Avtar
Singh is still absconding. There is no accountability in the law. Any law cannot be enforced without
accountability. He also stated, “Even in Britain, special law expires once the war is over. But India is the
only country where emergency laws are in force without formal declaration of emergency. Emergency
law must be repealed and political problems should be solved politically”.

Ima Nganbi, President, Apuna Nupi Lub and Vice President, Apuna Maniput Kanpa Nupi Lub said,
anti-alcoholism movement was started by the women in Manipur during 1980s. AFSPA was imposed in
Manipur in 1980. Miss Rose was raped and she committed suicide. Since then women in Manipur started
working on AFSPA. In 1980 Loken and Lokendra disappeared. 29 th December is known as Meira Paibi
day. Malom massacre took place. She called upon all to preserve the constitutional rights and cultural
and tradition of the people by repealing AFSPA completely.

Mr Subramanium, commented that Manipur has deployed 12 battalion paramilitary forces, 12 CRPF, 12
battalion of IRB, 60 battalion of army.

The Concluding Session: Suggestion and Way Forward was chaired by Mr Wilfred D’costa,
Alliances Linkages Convenor.

Mr Siddarth Varadarajan, Chief of National Bureau, The Hindu delivered the Valedictory address. He
mentioned that a law like AFSPA throws a fundamental challenge and that we need to question if a law
like this is compatible with the democracy. The year 2004 was a turning point in the struggle to remove
AFSPA. At that time, Prime Minister Dr Manmohan Singh came to Manipur and promised that he would
make the law more humane. The problem with AFSPA is whether the army has the right to use force; the
question is ,do you have the mechanism of oversight when the law is violated. And the fundamental
weakness of AFSPA, as borne out by years of experience, is that there is no oversight, and hence no
justice.

The Achilles Heel of AFSPA is Section 6. Impunity is scripted in to the very DNA of AFSPA via this
section.

Mr Varadarajan said that he is for repeal of AFSPA since such a law is incompatible with democracy and
civilian control over the armed forces. But in case this is not possible, then section 6 should be amended
to allow prosecution of soldiers for crimes committed except where the government is able to convince
the courts otherwise. Whatever decision is taken by Government on repeal, replacement or amendment
to AFSPA, this should be done in the interest of people living in insurgency areas rather than that of
armed forces or army.

New Delhi Resolution on Repeal of Armed Forces (Special) Powers Act 8th September 2010

We the civil society group and individuals, having coming together on September 8, 2010 at New Delhi at
the conference on ‘Assessing the call to repeal the Armed Forces (Special Powers) Act 1958 and
deliberated on the issues on AFSPA and

Encouraged by the Government‟s recognition that AFSPA in its present form is problematic and its
initiatives to amend the Act. However noting that it is not only civil society organisations but several
important government reports like B.P. Jeevan Reddy Committee (2005), Administrative Reforms

10
Committee headed by Veerappan Moily (2007) and Working Group on Confidence-Building Measures in
Jammu and Kashmir headed by Mohammad Hamid Ansari (2007) have all called for repeal of AFSPA.
Hence the Act should be repealed.

Noting that AFSPA was passed in haste, on May 22, 1958, the Armed Forces Special Powers Act was
passed by Parliament. After three hours of discussion in the Lok Sabha and four hours in the Rajya Sabha,
the AFSPA was approved even though several Members of Parliament opposed the Act on the ground
that it would lead to violations of Fundamental Rights and that it would get around the Indian
Constitution by effectively imposing an Emergency, without actually declaring one.

Aware of the fact that AFSPA is based on a 1942 British ordinance intended to contain the Indian
independence movement (Quit India movement) during WWII. Concerned about the fact that AFSPA
having in legacy from a colonial legislation was enacted in independent India and gross human rights
violation taking place all over the northeastern states and Jammu and Kashmir both by the state and non-
states actors.

Concerned that AFSPA has been abused and misused and decades, becoming a much despised Act. Long
dependency on the Act for the solution of a problem political in nature and long term enforcement of
„disturbed area‟ status are unconstitutional and is not a solution. Human rights abuses have created more
separatists than resolving the issue.

Noting that AFSPA contravenes Articles 14, 21, 22 and 32 (A) of the Indian Constitition.

Internationally, repeal has been called for by the: UN Special Rapporteur on extrajudicial, summary or
arbitrary executions (2006); Committee on the Elimination of Discrimination against Women (2007);
Committee on the Elimination of Racial Discrimination (2007).

The AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (the
"UDHR"), the International Covenant on Civil and Political Rights (the "ICCPR"), the Convention Against
Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for
Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention
and Investigation of Extra- legal and summary executions

Concerned that there is lack of genuine political will to solve the problems of north east India and Jammu
and Kashmir. And nexus between politician beauraucrates and underground are using AFSPA as an
excuse. Armed forces must uphold the spirit of the constitution.

Concerned that there is a need of responsible leadership among armed forces taking part in counter
insurgency operations and the Act is counter productive in its application since its application from 1958
Recognizing that there is a need of legal mechanism for the armed forces to work in insurgency prone
areas and constitution of grievance cell as recommended by the Jeevan Reddy commission report to be
taken into account.

Calls upon Government for safeguards to people of the country living under AFPSA that Indian armed
forces should not be used against movements inside the country.

Suggest that three important documents like 10 commandants, supplementary commandants, and Does
and Donts should be incorporated in every operation carried out by the armed forces in counter
insurgency operations.

Suggest that the Act is to be reviewed every six month and it should not be applicable for more than one
year at a stretch.

11
Suggest that human security should prevail over national security. Military is not a solution to the current
programme. Also noting that the Act was passed in a hurried manner and every section of the Act
requires wide review. Every section must be widely debated and discussed with the civil society in a
transparent manner before passing any legislation with „special powers‟. Ambiguous provisions like
what constitutes disturbed area,‟ least possible delay, prior sanction etc must be clearly defined with an
up gradation of section 6 of the Act.

Initiative to be taken in every wings of administration: executive, legislative, military and Judiciary and
their functions are reviewed and must take initiative to restore stability in the governance.

No one should be above the law. Section 6 of the Act is vague and ambiguous and needs to be upgraded.
Army should not be dragged into every internal problem and army should be deployed for external
enemies only.

Accountability is the core of rule of law and governance and must be a part of any special law before
putting in into force.

Till the state builds up a dedicated capacity for restoring governance, stability, development and rule of
law in disturbed areas, the armed forces leadership will have to engage the state and civil society in the
disturbed areas. The primary problems of AFSPA can be reduced by reducing the frequent use of the
military for tasks that should be performed by the states armed police forces.

Restoration of internal security, stability, and justice delivery is the ultimate objective of the state in its
disturbed areas. Deploying the armed forces in aid to civil authority is a make-do approach to the
problem.

The state needs to acknowledge that primary reasons for internal conflict and demands for secession
could be due to issues of political identity; economic deprivation; maladministration or bad governance.
Employing the armed forces or imposing AFSPA will not remove these basic causes.

Military is too blunt an instrument for nation-building tasks, which require policing, mediating and
reconciling. The state has to deploy appropriate resources for development administration and
democracy institution building as well as the security system that can restore public safety and stability.

There is a need to examine deployment of specially designed 'stability units' to build coherence between
the security, socio-economic development and public safety needs of disturbed areas. These
'stability units', while having sufficient combat robustness to counter an armed attack, need to approach
the problem of civilians in disturbed areas from the perspective of developing public access to justice,
minority and women rights, human and socio-economic development, etc.

Noting that the test of a law is its effectiveness and that AFSPA through the five decades of its existence
have become more complicated than resolving problems and hence the Act should go.

Calls upon the setting up of a network of grievance cell that will meet the long standing anguish of
people who have lost their near and dear ones; just basic information where their loved ones are.

Reconginising the efforts of all those who have campaigned for long to make the AFSPA a national issue,
especially women of Manipur

Resolve to assert that nobody is above the law.

Civil society must come together to join hands together to work on removal of AFSPA

Recommend to work with Northeast MPs Forum and other parliamentarians on this Act and suggest that
the Northeast MPs Forum takes a stand on this.

12
 Should the AFSPA be repealed, any future legislation aimed at dealing with militancy in areas currently
subject to the AFSPA must comply with international human rights and humanitarian law. Such laws
must ensure that the reporting, investigation, and prosecution of unlawful acts by members of the armed
forces are not impeded.

Resolution sent to

Prime Minister Dr Manmohan Singh

Home Minister Mr Chidambaram
Defence Minister Mr AK Anthony
To all Chief Ministers of AFSPA imposed states
To all Members of Parliament of AFSPA affected states

For any question’s, please contact the following:

Office of Control Arms Foundation of India & Manipur Women Gun Survivors Network &
B 5 / 146, First Floor, Safdarjung Enclave, New Delhi - 110 029
Email: cafi.communique@gmail.com
Phone: +91-11-46018541 Mobile: 98682333734

13