There has been a lot of hype about what is known as the draconian legislation, namely AFSPA, the Armed Forces Special Powers Act. The legislation is supposed to give special powers as well as immunity from legal prosecution to Armed Forces while dealing with insurgency in different parts of the country. There have been innumerable debates, statements from various sources making the legislation a “holy cow” which cannot be touched at all if the country has to survive as one integral unit. In fact, the tenacity of the debate has come to such a level that a choice has to be made whether AFSPA has to be retained on the statute book or Kashmir as part of India? It would be useful to know various aspects of the legislation. A very brief but precise piece on the Act is available on the internet on Wikipedia and is reproduced here:

“The Armed Forces (Special Powers) Act (AFSPA), was passed on September 11, 1958 by the Parliament of India. It conferred special powers upon armed forces in what the language of the act calls "disturbed areas" in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as the “The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990” in July 1990. According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:

• "Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law" against "assembly of five or more persons" or possession of deadly weapons.
• To arrest without a warrant and with the use of "necessary" force anyone who has committed certain offences or is suspected of having done so
• To enter and search any premises in order to make such arrests.

It gives Army officers 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. It was withdrawn by the Manipur government in some of the constituencies in August 2004 in spite of the Central government not favouring withdrawal of the act. In December 2006, responding to what he said were 'legitimate' grievances of the people of Manipur, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was 'humane' on the basis of the Jeevan Reddy Commission's report, which is believed to have recommended the Act's repeal. The Act has been employed in the Indian administrated state of Jammu and Kashmir since 1990. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the AFSPA. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards." Violence has increased in the past two decades since enforcement of the Act. The state has created a "Gallantry Awards" pool for the arms forces which are awarded for elimination of insurgencies and conduction of operations. The term 'encounters' is used by the security forces to describe confrontations where it is deemed appropriate, under the provisions of the act, to employ violence. Protests began in Kashmir valley on Sep 10, 2010, on the occasion of Eid and turned violent on Sep 11, the anniversary of the controversial act. Indian Government is considering partial withdrawal of the act.

The members of the UNHRC have questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination". A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by security forces against civilians in Manipur since the passage of the Act, and declares that the Act has "resulted in large-scale violation of the citizens under Articles 14, 19, 21, 22, and 25 of the Constitution". The report states that residents believe that the provision for immunity of security forces urge them to act more brutally. Many human rights organizations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by Indians such as "extra-judicial executions", "disappearances", and torture; the "Armed Forces Special Powers Act", which "provides impunity for human rights abuses and fuels cycles of violence. The Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations.”

The worst part of the Act is its section 4(a). Section 4 of AFSPA gives any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Indian Armed Forces in a disturbed area the power to “fire upon or otherwise use force, even to the causing of death” if he or she perceives that a person is carrying something capable of being used as weapons. The trooper can “arrest, without warrant any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest.” A trooper can “enter and search without warrant any premises to make any such arrest as afore-said”. Zubair Dar in an article on the Act quotes A G Noorani, “Section 4(a) of the Act is a statutory obscenity and it occurs in no statute any where in any democracy. It has been aptly called a ‘licence to kill’.” Besides these unbridled powers, section 6 of AFSPA provides protection to troopers: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.

In any conflict involving an external enemy the Army does not need any special powers. They are performing their genuine duty. It is only in a situation of a civilian type of armed insurgency or outside armed elements infiltrating into civilian areas that special powers are required. In such situations certain areas are declared disturbed which makes the Act operative in those areas. The aim is to protect Armed Forces from any litigation if their actions cause collateral damage to civilians. However, Armed Forces have no need for these powers when there is no armed insurgency and there are only thousands of unarmed civilian protestors. Even in case of civilian armed insurgency there are specific rules and stipulations under Geneva Convention of which India is a signatory. No international convention or human rights stipulations allow disproportionate use of force. The four Geneva Conventions of 1949 and their two Additional Protocols of 1977 are the principal instruments of humanitarian law. Chapter IV of the basic rules of Geneva Convention specifically relates to “Protection of Civilian Persons and Populations”. In fact Geneva Convention mentions that in any conflict even the Environment itself must be protected against widespread, long-term and severe damage. In Kashmir all these conventions and international laws have been thrown to winds and a virtual war has been declared on the civilian population protesting peacefully. It is only for these types of anti-civilian operations that people are clamouring for retaining various draconian legislations. The Government of India will have to make a choice. Would they prefer to retain AFSPA and other draconian legislations or Kashmir itself? Ultimately, they will have to give up AFSPA if they want to retain Kashmir otherwise the present policy of brutal suppression may cost Kashmir itself!