INTRA STATE CONFLICT RESOLUTION AND

PEACE BUILDING - ROLE OF THE ARMED

FORCES SPECIAL POWERS ACT
IF THE ARMED FORCES ALSO
FAIL THERE WILL BE NO
INDIA
 ROLE OF THE INDIAN ARMED FORCES
The primary mission is to ensure the national
security and safeguard sovereignty, territorial
integrity and unity of India from external
aggression and threats. Secondary roles include
providing humanitarian support and aid to civil
authority during calamities and natural
disasters
 THE LAST RESORT
The ultimate force available with the Union of
India for intra state conflict resolution is its Armed
Forces

Deployment of the Armed Forces of the Union is

the final choice
 THE ARMED FORCES SPECIAL POWERS ACT
• WHAT

• WHERE

•HOW
•WHO
 PREVIEW

• GENESIS
• AFPSA AND CONSTITUTIONAL PROVISIONS FOR INTRA STATE CONFLICT
RESOLUTION
• 'DISTURBED' AREA
• AFSPA – MAIN INGREDIENTS
• WHY IS AFSPA CONSIDERED DRACONIAN?
• AFPSA :INTERNATIONAL AND NATIONAL VIEWPOINT
• SUPREME COURT JUDGEMENTS AND VIEWS
• CONCLUSION
 GENESIS

• The Armed Forces Special Powers Ordinance of 1942 was promulgated by the
British on 15 August 1942 to suppress the 'Quit India movement'.

• Later, modeled on these lines, four ordinances were invoked by the central
government to deal with the internal security situation in the country in 1947 which
arose out of the partition of India.

*the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance.

*the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance.
*the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance.
*the United Provinces Disturbed Areas(Special Powers of Armed Forces) Ordinance.
 POST INDEPENDENCE
• The Armed Forces (Special Powers) Act of 1958 (AFSPA) was adopted
by the Indian Parliament as an emergency measure granting special
powers to the Indian Armed Forces for use in an area that has been
declared ‘disturbed.’

• The ASPA was first applied to the Seven Sister States of North East
India, including Assam, Manipur, Tripura, Meghalaya, Arunachal
Pradesh, Mizoram and Nagaland, on 1 September, 1958, to stop the
North Eastern States seceding from the Indian Union.

• Later Punjab and Chandigarh also came within the purview of this act,
which was later withdrawn in 1997.

• AFSPA was applied to the state of Jammu and Kashmir in 1990 and has
been in force since.
 AFSPA STATUS AS ON 03 JUNE 2019
• Assam - Except Guwahati municipal area, AFSPA is in force in whole state.

• Meghalaya - Boundary area of Meghalaya with Assam in 20 km belt under AFPSA​.

• Arunachal Pradesh -Only three districts - Tirap, Changlang , Longding and 20 km

border area with Assam are under AFSPA.

• NAGALAND - Initially part of Assam, came in existence in 1961. Whole of Naga

state currently under AFSPA.

• MANIPUR- Except Imphal, whole Manipur state under AFSPA.

• JAMMU & KASHMIR- AFSPA active since 1990.

(Note : In Tripura AFSPA was implemented in 1997 and withdrawn in 2015)
 ​CAUSES FOR INTRA STATE CONFLICT : INDIA
SPECIFIC

• Multiplicity of Religions
• Languages
• Ethnic Divisions
• Lack of Accommodation in Political Thoughts,
• Economic Disparities
• Geographical Imbalances

• Failure of the State administration to maintain law and order may

develop into a situation, being ‘disturbed’ and ‘dangerous’, where the
police and other agencies available are not able to control the
Main purpose of AFSPA
extraordinary situation
'DISTURBED'
 WHEN IS AN AREA DEEMED 'DISTURBED' ??

• The State or Central Government has the right to pronounce an area

‘disturbed’ “by reason of differences or disputes between members
of different religious, racial, language or regional groups or castes
or communities”

• Also, failure of the State administration to maintain law and order

may develop into a situation, being ‘disturbed’ and ‘dangerous’,
where the police and other agencies available are not able to control the
extraordinary situation
 LAW AND ORDER AND CONFLICT RESOLUTION
The Constitution of India empowers state governments to declare a state of emergency due to one or
more of the following reasons:

•Failure of the administration and the local police to tackle local issues.

•The scale of unrest or instability in the state is too large for local forces to
handle.

In such cases, it is the prerogative of the state government to call for central help. In most
cases, for example during elections, when the local police may be stretched too thin to
simultaneously handle day-to-day tasks, the central government obliges by sending in the
BSF, ITBP and the CRPF. Such cases do not come under the purview of AFSPA. AFSPA is
confined to be enacted only when a state, or part of it, is declared a 'disturbed area'.
Continued unrest, like in the cases of militancy and insurgency, and especially when
borders are threatened, are situations where AFSPA is resorted to.
 ARTICLE 355
Duty of Centre :

• In the case of AFSPA (Manipur and Assam) 1958, the Government of

India had used Article 355 of the Constitution to confer power in the
hands of Governors.

• The Article entrusts duty upon Union to protect the states against
“external aggression” and “internal disturbance” to ensure that
the government of every State is carried on in accordance with the
provisions of Constitution.
 ARTICLE 352
Proclamation of Emergency:

*Before the 44th amendment to the Constitution of India, the following were the grounds
under which the President could proclaim emergency.
• War
• External Aggression
• Internal Disturbance

* After the 44th amendment the following are the grounds under with a National Emergency
can be proclaimed by the President.
▪ War
▪ External Aggression
▪ Armed Rebellion
 ARTICLE 352
• Internal disturbance not amounting to armed rebellion would not be a
ground for the issue of a proclamation of emergency.

• A provision was included stating that the President will only issue a Proclamation
of Emergency if the decision of the Union Cabinet has to been communicated to
him in writing.

• Proclamation of Emergency has to be approved within a period of one month

(instead of two months) by resolutions of both Houses of Parliament and has to
be passed by a majority of the total membership of each house and by a majority
of not less than two-thirds of the members present and voting in each House
instead of a simple majority.
WHERE CAN AFSPA BE INVOKED
Only in an area declared as “DISTURBED”
 WHO CAN DECLARE AN AREA AS DISTURBED?

• In the original version of the Armed Forces Special Powers Act of 1958,
only the State Governments had the power to declare an area as
disturbed. This was consistent with the Constitution of India which
places law and order and policing under the State’s list.

• The 1972 amendments to the AFSPA took away the power from the
State Government and its Legislative Assembly and handed it over to an
appointee of the Central Government.
 HOW IS AN AREA DECLARED AS
"DISTURBED"

• The State or the Central Government has the

power to demarcate an area in the Indian Union as
‘disturbed’.
• But under Section (3) of the Act, the opinion of the
State Government as to whether or not an area is
‘disturbed’ can be overruled by the Governor or the
Center.

• Once declared ‘disturbed’, the region has to

maintain status quo for a minimum of three
months, according to The Disturbed Areas (Special
Courts) Act, 1976.
 J & K DISTURBED AREAS ACT AND AFSPA

• In 1997, when Farooq Abdullah was chief minister, the legislative

Assembly ratified the law for one year. But in October 1998, it was
allowed to lapse in response to a huge wave of resentment against
the misuse of its draconian provisions.

• DAA for J&K lapsed in 1998.

• The J&K government has two ways to declare an area “disturbed”. It

could enact the DAA, or it could issue a notification under Section 3
of AFSPA.
 BUT REMEMBER---
• The armed forces personnel have no statutory authority to be
deployed or to act within the country against own citizens​

• A State Government has no authority to directly summon and

deploy the military which is under the executive domain of the
Union
 Military personnel need to be suitably
protected for actions taken by them in
discharge of official duties

Military personnel need to be suitably protected for actions

taken by them in discharge of official duties
 AFPSA – MAIN INGREDIENTS
•Declaration about disturbed and dangerous situation
when, by whom and how.​
•Powers to NCOs and above.​

•Duty of the Armed Forces.​

•Protection given to them.
 SECTION 3
(POWERS TO DECLARE AREAS TO BE DISTURBED AREAS)

State Government
Governor
Central Government
 SECTION 4
(SPECIAL POWERS OF ARMED FORCES)
Any commissioned officer, warrant officer, non-commissioned officer or any other person of
equivalent rank in the Armed Forces may, in a disturbed area –

• After giving due warning, Fire upon or use other kinds of force even if it causes death, against the person
who is acting against law or order in the disturbed area for the maintenance of public order,
• Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which
armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.
• 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 arrest.
• 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.

• Stop and search any vehicle or vessel reasonably suspected to be carrying such person
or weapons.
TO SHOOT OR NOT TO SHOOT – THE ARMY’S
DILEMMA IN KASHMIR
 THE BUDGAM INCIDENT

Troops fire on car for refusing to

stop at checkpoints, 2 killed in
Budgam
Tuesday, 04 November 2014 | Khursheed
Wani |

• Srinagar :Following the incident, the army

 At the first check point, the personnel tried to stop
the car but it did not stop
 Again at the second check point, the vehicle was
signaled to stop but it did not stop.
 At the third check point, the vehicle tried to barge
through the checkpoint,
 Resulting in a firing incident in which four persons
were injured.
 The injured were rushed to the Army Base
Hospital, Srinagar. Two persons succumbed to their
injuries and two were under treatment
had to face widespread protests and
violence across the Valley. An FIR (no.
231/14) was filed at the Chadoora police
station
• The army also conceded that soldiers of
53 Rashtriya Rifles involved in the
incident were at fault. According to
media reports, a court of inquiry was
initiated against nine soldiers
 THE BUDGAM INCIDENT
•
Subramanian Swamy
• Viral claim that Mehbooba sent Army jawans to
Tihar. FALSE
• ✔@Swamy39
• Who authorised the prosecution of our army jawans who
in 2014 shot at a Maruti car which smashed through • BJP leader Subramanian Swami also claimed that
three check points without stopping? That person is the "army jawans were prosecuted and are still in
responsible for this latest SUV to get near the convoy jail". FALSE
killing 37 CRPF jawans. The army jawans are still in jail
• 19.4K
• 11:06 AM - Feb 16, 2019 • Video clip is being widely shared on social media in
which Major General (retd.) GD Bakshi elaborates
• Twitter Ads info and privacy on how the system of checkposts and barriers on
• 9,832 people are talking about this roads in Kashmir was dismantled because of
• Mehbooba Mufti. In the video, Gen. Bakshi claims
that following a firing incident on a checkpost near
Srinagar, the army had not only to apologise but
former chief minister Mehbooba had also ensured
that the jawans involved in the incident went to Tihar jail.
FALSE
 SECTION 5

Any person arrested and taken into custody under this Act shall
be made present over to the officer in charge of the nearest
police station with least possible delay, together with a report of
the circumstances occasioning the arrest.
 SECTION 6

• Army personnel have legal immunity for their actions. There can
be no prosecution, suit or any other legal proceeding against
anyone acting under that law. Nor is the government's judgment
on why an area is found to be disturbed subject to judicial
review

• Protection of persons acting in good faith under this Act from

prosecution, suit or other legal proceedings, except with the
sanction of the Central Government, in exercise of the powers
conferred by this Act
 WHY IS AFPSA CONSIDERED DRACONIAN
• The Armed Forces Special Powers Act contravenes both Indian
and International law standards.
• Violates the rights to life (Article 21)
• Violates the right to be protected from arbitrary arrest (Article
22)
• Violates the right to be free from torture and other ill-treatment

----- Human Rights Watch says, ''The provisions protecting soldiers from
prosecution deny victims of abuses the right to a remedy because it forbids
prosecution of soldiers without approval from the Central Government''
 INTERNATIONAL STANDING
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
the UN Principles on Effective Prevention and Investigation of
Extra- legal and summary executions
 INTERNATIONAL STANDING
Human Rights for all mankind encompass:

• Free and Equal Dignity and rights

• Non- discrimination
• Life, liberty, security of person no torture
• Equality before the law
• Effective remedy
• No arbitrary arrest
• Property
 NATIONAL STANDING
• During the past couple of years, there have been widespread anti-AFSPA protests in Kashmir
following the murder of civilians in “fake encounters.”

• In 2004, emotions against the AFSPA exploded in the Northeast Indian state of Manipur after the
abduction, suspected rapeand killing of a woman, Thangjam Manorama, by security forces.

• Adverse publicity and indefinite fast undertaken by Irom Sharmila.

• The then chief minister of J&K, Omar Abdullah, demanded the removal of the AFSPA from
certain areas of the state. The indication, according to media reports, is the districts of Srinagar,
Budgam, Jammu and Samba .

• In response to those public protests, the Indian government appointed a committee to review
AFSPA 1958, headed by a former Supreme Court Judge, B.P.Jeevan Reddy.

(''Citizens may not be able “to resist the power of the Indian State, but resent it they can'')
 WHY SINGLE OUT INDIA ??
• The doctrine is by no means unique to India

• Countries like Canada, United States and the United Kingdom

also have some versions of that doctrine

• The British armed forces presence in Northern Ireland is an apt

comparison to the Indian military presence in the North East.
The British carry out arrests under the Northern Ireland
(Emergency Provisions) Act or the Prevention of Terrorism
(Temporary Provisions) Act
 THE PATRIOT ACT - USA
• The Patriot Act defines "domestic terrorism" as activities within the
United States that . . . involve acts dangerous to human life that. . .
And appear to
• intimidate or coerce a civilian population;
• influence the policy of a government by intimidation or coercion; or
• affect the conduct of a government by mass destruction,
assassination, or kidnapping. . . .

(The Fourth Amendment to the U.S. Constitution protects the "right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . . )
 JEEVAN REDDY COMMITTEE REPORT
• In response, in late 2004, the UPA-1 government, under the Ministry of
Home Affairs set up a Committee under a retired judge of the Supreme
Court, BP Jeevan Reddy with four members, Dr SB Nakade, former Vice
Chancellor and Jurist, P Srivastav, a former special secretary with the MHA,
VR Raghavan, former Lieutenant General with the Indian Army and Sanjoy
Hazarika, senior journalist
• The BP Jeevan Reddy Committee recommended that it be repealed on the
grounds that: ‘The act is too sketchy, too bald and quite inadequate in
several particulars.’ Its finding was that the Act ‘has become a symbol of
oppression, an object of hate and an instrument of discrimination and
highhandedness.’ But it made a constructive suggestion that the main, if
diluted, provisions be retained by incorporation into the Unlawful Activities
Prevention Act (UAPA)
 RESTRICTIONS BY SUPREME COURT

The Supreme Court’s verdict in 1988 in the matter of Naga Peoples’

Movement of Human Rights vs. Union of India was essentially that ‘Parliament
was competent to enact the central Act’ ---

• Orders of Central Government to grant or withhold sanction to prosecute

are subject to judicial review
• Do’s and Don’ts to be strictly followed
• Compensatory Justice – compensation to the victim
• Periodic review. Not to operate beyond six months
 AFPSA : 2016 SUPREME COURT JUDGEMENT

• In July 2016, a bench comprising justices Madan B. Lokur and

U.U. Lalit had ruled that every allegation of use of excessive
force that results in death of an individual by the armed forces
or state police in Manipur must be looked into

• The court made registration of a first information report (FIR)

mandatory in such cases
 THE SUPREME COURT AND THE AFSPA
CURRENT SITUATION
• In April 2017, the Apex Court rejected a curative petition filed by the Government
seeking to review the court’s 2016 verdict that mandates a compulsory police
inquiry of suspected extra-judicial killings by the Armed Forces in areas under the
AFSPA

• The Centre pleaded that the Court’s verdict is hampering the Army’s ability to
respond to insurgency-related situations and its daily operations in Kashmir and
the Northeast, both regions torn by militancy

• A curative petition, as we know, is the last legal recourse available after a litigant
exhausts all remedies such as appeals and review pleas

• The Apex Court is also currently monitoring the probe in the 1,528 cases of
alleged extra judicial killings
 RECOMMENDATIONS – YOU DECIDE
• The AFSPA does comply with international law and Indian law standards.
YES/NO
• This means the powers to shoot to kill under section 4(a) must be unequivocally
revoked. YES/NO
• Arrests must be made with warrants and no force should be allowed in the search
and seizure procedures. YES/NO
• Section 5 should clearly state that persons arrested under the Act are to be handed
over to the police within twenty-four hours. YES/NO
• Section 6 should be completely repealed so that individuals who suffer abuses at
the hands of the security forces may prosecute their abusers. YES/NO

Contd---
 RECOMMENDATIONS – YOU DECIDE
• The definition "disturbed area" must be clarified. YES/NO

• The declaration that an area is disturbed should be for a specified amount of time,
no longer than six months. Such a declaration should not persist without
legislative review. YES/NO

• Armed forces should not be allowed to arrest or carry out any procedure on
suspicion alone. YES/NO

• All personnel acting in a law enforcement capacity should be trained according to

the UN Code of Conduct for law enforcement personnel. YES/NO
AT TIMES THE WAY
IT IS APPLIED MAY
BE WRONG, BUT
INDIA'S ARMED
FORCES NEED THE
AFSPA
THE END