DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION 2019-20

SUBJECT: HUMAN RIGHTS LAW

FINAL DRAFT

ON

HUMAN RIGHTS VIOLATION IN J&K: AFSPA AND ARTICLE

370

Submitted to: Submitted by:

Dr. Abdullah Nasir Sankalp Patel

Assistant Professor (Law) BA.LLB (Hons) 7th Sem

Enrollment No.- 160101131

 ACKNOWLEDGMENT

I would like to express my gratitude to all those who gave me the possibility to complete this
project. This project is the result of extensive literature study, hard work and labour put in to
it to make it worth reading. I extend my heartily thank to Dr. Abdullah Nasir who inspired
me to do this project. I am deeply indebted to him.

I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA NATIONAL
LAW UNIVERSITY who helped me in getting all the materials necessary for the project.
 TABLE OF CONTENTS

 Introduction
 Source of Conflict
 Violation of Constitutional Rights
 Violation of Procedural laws
 Violation of International laws
 Important Cases
 Present Situation
 Conclusion
Introduction

“An effective international strategy to counter terrorism should use human rights as its
unifying framework. The suggestion that human rights violations are permissible in certain
circumstances is wrong. The essence of human rights is that human life and dignity must not
be compromised and that certain acts, whether carried out by State or non-State actors, are
never justified no matter what the ends. International human rights and humanitarian law
define the boundaries of permissible political and military conduct. A reckless approach
towards human life and liberty undermines counter-terrorism measures”.1, Mary Robinson,
the United Nations High Commissioner for Human Rights had said in her report to the 58th
session of the United Nations Commission on Human Rights. The Armed Special power Act
in India which gives the power to armed forces in the disturbed areas is somehow
compromising with human rights and humanitarian laws on the name of national security.

Source of Conflict

Prior to Indian independence in 1947, Kashmir was a princely state (majority Muslim) under
the control of a Hindu emperor named Maharaja Hari Singh. Inadequate representation in the
king’s governance structure and repression of the Muslim majority led to an uprising in 1946,
which resulted in a resolution being supported by many Kashmiri people which demanded
an Azad Kashmir i.e. autonomous dominion of Kashmir. The Maharaja’s indecisiveness to
join either one of the dominions, either India or Pakistan (post independence in 1947), led to
Pakistani tribals invading Kashmir and thus violating the Standstill Agreement. These
supposed Pakistani tribal attacks have been alleged to have taken place with the full support
of the Pakistani military. This was followed by a full-fledged military campaign
by Pakistan to pressurise Kashmir into acceding to Pakistan. After much deliberation with
the Pakistan camp, the Maharaja sought India’s help to save his state from Pakistani
infiltrators and agreed to accede to India in return for protection from Pakistani infiltration.
The same happened on 27th October 1947. With Pakistan claiming the accession to be illegal
and unjustified, a huge plebiscite or referendum demand followed. Through the plebiscite,
the people of Kashmir were to decide their own fate – whether they want to be a part
of India, Pakistan or even independent altogether.

1The Asian Centre for Human Rights, An Analysis of Armed Forces Special Power Act, 1958, PUCL (May
26, 2017, 7:04), http://www.pucl.org/index.htm.

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All three parties (Pakistan, India and the Maharaja of Kashmir) agreed to this initially.
However, due to tensions between India and Pakistan, and Pakistan not following all
provisions of the agreement, Kashmir finally acceded to India on a permanent basis without a
plebiscite. With continued tension in the region, there were sporadic outbreaks and demands
for independence in the region of Kashmir. The Indo-Pak war of 1971 ended with an
agreement by both parties to respect a new Line of Control (formally established in 1972),
and a resolution to come to an agreement on all future issues through bilateral discussions.

With the end of the Soviet occupation of Afghanistan, there was an influx of militants and
weaponry into Kashmir as well as various parts of Pakistan (especially POK). As per official
estimates, 10,000 desperate Kashmiri youth crossed-over to Pakistan for training and
procurement of arms. Indigenous and foreign militant groups besides pro-India renegade
militants proliferated through the 1990s. An estimated half a million Indian soldiers/officials
belonging to various Indian security forces have also been deployed in the Kashmir Valley
since the 1990s with increasing violence and human right violations by all sides leading to
tens of thousands of civilian casualties. This was followed by the Kargil war of 1999. In
1962, troops from the People’s Republic of China and India clashed in the North-eastern part
of the state claimed by both. China won a swift victory in the war, resulting in the Chinese
annexation of the region called Aksai Chin, which has continued since then.

Violation of Constitutional Rights

The fundamental rights given in the constitution of India was made to safeguard the people of
the country. What makes it special is that these fundamental rights gives the power as a
matter of right to every individual of this country to go against state if any of the rights being
violated. But it is very disappointing when certain citizens of this sovereign nation living in
the so called disturbed area are not able to exercise these fundamental rights which any other
citizen residing in any other part of the nation can exercise.

Coming to how this act violates the fundamental rights of those people-

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Article 21 which says, “No person shall be deprived of his life or personal liberty except
according to procedure established by law”.2 As far as the ‘procedure established by law’ is
concerned it means a "fair, just and reasonable law" which supreme court has explained in the
case of Maneka Gandhi v. Union of India3 where it overruled Gopaln case which had found that
any law enacted by Parliament met the requirement of "procedure established by law". Now
where it is contradicted is the section 4 (a) which says, “Any commissioned officer, warrant
officer, non-commissioned officer or any other person of equivalent rank in the armed forces
may, in a disturbed area,-

if he is of opinion that it is necessary so to do for the maintenance of public order, after

giving such due warning as he may consider necessary, fire upon or otherwise use force, even
to the causing of death, against any person who is acting in contravention of any law or order
for the time being in force in the disturbed area prohibiting the assembly of five or more
persons or the carrying of weapons or of things capable of being used as weapons or of fire-
arms, ammunition or explosive substances”4

The UN Human Rights Commission has pointed out that, Justice requires that the use of
force be justified by a need for self-defense and a minimum level of proportionality. But here
in the section 4(a) of the act, "assembly" is not defined, as there could be lawful assembly
such as family gathering and the word used “weapon” can also have different meaning such
as a stone can also come in the ambit of weapon. This shows the wide interpretation of the
offences, illustrating that the use of force given to the officer in this act is disproportionate
and irrational.

While the drafting of the Indian constitution it was questioned whether the time limit should
be specified in section (2) of article 22 and it was Dr. Ambedkar known to be the father of
constitution who stated that, “with the least possible delay would actually result in the person
being held for a shorter period of time, whereas "twenty- four hours" would result in the
person being held for the maximum time of twenty-four hours”. But on the other hand the
AFSPA counters this very purpose of constitution where the use of words, “least possible
time” has given the liberty to army to hold people for days and months.

2
R.N Mishra, The Constitution of India 15.
3
Maneka Gandhi v. Union of India, (1978) A.I.R 597.
4
The Armed Force (Special Powers) Act, 1958, No. 28, Acts of Parliament, 1958(India).

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If AFSPA defended itself saying it as a preventive detention then also it does not prove itself
right because for preventive detention a person can be detained for maximum period of 3
months and according to article 22(4), if there is any detention more than 3 months it has to
be reviewed by an Advisory Board. Also, article 22(5) says that the person must be told the
reason of their arrest but on the counterpart section 4(c) a person can be arrested on a mere
suspicion without any warrant and the person arresting is also not bound to communicate the
reason for arrest.

Violation of Procedural laws

Then union home minister GB Panth said that, “the AFSPA is in subject to the provision of
the Code of Criminal Procedure and the Constitution of India but where the motive in CrPC
is the use of minimal force, AFSPA deviates from it. Moreover, army person who are
controlling this area has no knowledge of CrPC which is given to a police officer. Sections
129-131 under Chapter X of CrPC talks about unlawful assemblies which explain that the use
of force not be excessive which only civil force is are used for dispersal of the assembly. Also
it mentions that armed forces are to follow the directions of the Magistrate. So, in all ways
comparing these sections of CrPC with AFSPA, CrPC tends to be more justified as in the
case of AFSPA where even a non commissioned officer has given excessive powers and
excessive use of force.

There are very instances where a person is given death penalty such as under section 302 of
Indian Penal Code only murder is punishable with death but in AFSPA a mere suspect or a
member of a lawful assembly can be shot dead. Section 143 of the Indian Penal Code the
punishment for being a member of an unlawful assembly is up to 6 months or fine or both
and if the person is even carrying deadly weapon also the maximum punishment is up to 2
years which is far more justified than taking anybody’s life. Clearly this is the violation of
basic principle of the constitution to have equality before law for all the people by giving
different punishment to different people just because those people are living in the disturbed
area of the country.

Army official are granted privileges, they are exempted from arrest for debts. Also high
courts have limited to interfere with their court martial system. Offences like murder and rape
are only not triable by a martial court unless done on active service and what adds into their
privileges is the section 6 of AFSPA which says that soldiers in theses disturbed area can

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only be tried by court martial and if any person wants to proceed against the army official he
or she has to take the permission of central government which is not easy for an ordinary
person and thus it left no civil remedy for the victims.

Whenever one thinks of emergency we always compare with a draconian law. The time for
which our nation went under emergency is considered to be the dark side of the democracy.
The situation in the disturbed area is similar to those which exist during emergency or even
worse than that. When Mr Mahanty raised an issue comparing AFSPA to a state of
emergency it was explained by then home minister that AFSPA is not comparable to
emergency. The argument given by him is that “In emergency an individual’s fundamental
rights are violated where as in AFSPA it is not the case”, but section 4(a) of the act clearly
violates the right to life guaranteed under article 21 of the Indian constitution. In emergency
fundamental rights are taken away under article 359 but after the 1978 amendment,
fundamental rights under article 20 and article 21 cannot be taken away. The condition in
AFSPA is worse where even article 21 is violated.

Violation of International laws

The UN General Assembly adopted the Code of Conduct for Law Enforcement Officials in
the resolution 34/169 of 17 December 1979 which tells about the guidelines that a officer
presiding in these disturbed area should follow. According to article 1 of this code, “Law
enforcement officials shall at all times fulfill the duty imposed upon them by law, by serving
the community and by protecting all persons against illegal acts, consistent with the high
degree of responsibility required by their profession”5 but the officials here are not concerned
with the law enforcement instead tries to operate on a war footing and no high degree of
responsibility is seen as mentioned in the article. Article 2 and Article 3 of the code talks
about maintaining human dignity and use of force but the section 4(c) of the AFSPA gives
the power to the official to use any amount of force to arrest a person merely on suspect ion.
Under 4(d), this force extends to “enter and search without warrant any premises to make
any such arrest”6.

According to 10th principle of the Body of Principles on Detention or Imprisonment that was
passed by the UN General Assembly on 9 December 1988, “Anyone who is arrested shall be
informed at the time of his arrest of the reason for his arrest and shall be promptly informed

5
http://www.ohchr.org/EN/ProfessionalInterest/Pages/LawEnforcementOfficials.aspx
6
The Armed Force (Special Powers) Act, 1958, No. 28, Acts of Parliament, 1958(India).

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of any charges against him”7, but in AFSPA it is not mandatory for the army official to
provide this information to the person arrested.
“The ICRC's mandate in the context of non-international armed struggle is based on Protocol
II to the Geneva Conventions. However, India has not signed either protocol to the Geneva
Conventions. Nevertheless, the ICRC can offer its services in such a conflict based on Article
3, paragraph 2, common to the four Geneva Conventions of 1949 ("an impartial humanitarian
body, such as the International Committee of the Red Cross, may offer its services to the
Parties to the conflict"). When the ICRC offers its services in such a situation, a state does not
have to accept them, or consider it interference in its internal affairs. However, in situations
of internal disturbance, the rules of international humanitarian law can only be invoked by
analogy.”8
As India was a colony of Britain and took most of its law from Britain. So, it is comparable to
British armed forces presence in Northern Ireland where they held detainees for more than
seven days according the Prevention of Terrorism (Temporary Provisions) Act, the European
court of human rights believed this to be violation of the European Human Rights Covenant
and similar to which happens in disturbed area of India under AFSPA is violative of human
rights.

Important Cases

In this case, “Indrajit Barua v. State of Assam and Anr”9, writ petition was filed under article
226 of the constitution in the Gauhati High Court challenging the validity of section 2, 3, 4
and 5 of the AFSPA act as they violate article 14, 19 and 21 of the constitution.
The court held that “lack of precision to the definition of a disturbed area was not an issue”10.

7
http://www.un.org/documents/ga/res/43/a43r173.htm
8
SAHRDC, Armed Forces Special Powers Act: A study in National Security tyranny, SAHDRC, (May 26,
2017, 9:00 P.M).

9
Indrajit Barua v. State of Assam and Anr, A.I.R 1983 Delhi 513.
10 CHAITY, SONAKSHI VERMA,YAMINI RAJORA, INTERPRETING PROVISIONS OF THE ARMED FORCES (SPECIAL
POWERS) ACT, 1958, LAWOCTOPUS (MAY 27, 2017,8:00 A.M)
HTTPS://WWW.LAWCTOPUS.COM/ACADEMIKE/AFSPA-FORCES-1958/.

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In the case, “Naga People’s Movement of Human Rights v. Union of India”11, writ petition
was filed under article 32 of the constitution which question about the validity of the AFSPA
and challenges it on the ground that it infringes human rights. The decision held by the court
was in favor of the government by upholding the validity of the AFSPA.
Both these cases decision became the landmark judgments and are formed as a principle case
deciding the question on the validity of the AFSPA and hence offered nothing in the hands of
those who are victims of this draconian act. The last door which is the judicial system failed
to provide these victims with any remedy.

Present Situation

The Centre on 5th August 2019 decided to revoke Article 370 of the Indian Constitution,
which gave special status to the state of Jammu and Kashmir. Home Minister Amit Shah,
who moved the resolution in the Rajya Sabha, also proposed the Jammu and Kashmir
Reorganisation Bill under which the state will be turned into a Union Territory with a
legislature, similar to Delhi, while the Ladakh region would be converted into a Union
Territory without a legislature.

An order from President Ram Nath Kovind also removed provisions under Article 35A of the
Jammu and Kashmir Constitution, which allowed the state legislature to define “permanent
residents” of the state and restricted outsiders from buying land.

Meanwhile, at least 8,000 paramilitary forces were deployed to Jammu and Kashmir to
reportedly strengthen security across the state. The Indian Army and the Air Force were also
put on high alert. A curfew had been put in place in the state and all communication services
had been suspended.

“In the weeks since Kashmir's lockdown, hundreds of elected politicians, activists and trade
unionists have been imprisoned or put under "house arrest". Thousands of young men -
including minors - have been arrested in night raids by the police, with many transported to
jails outside the state.”12 Despite criticism from human rights organisations, India says its
actions are legal under the strict emergency laws in place in Kashmir since an armed
rebellion began there in 1989.

Naga People’s Movement of Human Rights v.Union of India, (1988) 2 SCC 109 (India).
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12
https://www.aljazeera.com/news/2019/08/india-revokes-kashmir-special-status-latest-updates-
190806134011673.html

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As far as the revocation is concerened it has many legal flaws in it as rightly pointed out by
many jurists, Article 370 has created a trio relationship between the Centre, Jammu and
Kashmir State, and the President of India, with the Indian President given powers to define
the constitutional relationship or the instrument of accession only and only with the consent
and consultation of the State government. In this episode, the entire process has been
bypassed in the absence of a state representation or consultation which again should be
challenged (referring to precedents such as Mohd Maqbool vs State of J&K 1972 and Sampat
Prakash vs State of J&K 1970). Moreover a central government (in blatant violation of the
Instrument of Accession (or Indian Constitution) cannot arbitrarily “downgrade” the status of
the “State” to “Union Territory”. This is a violation of the fundamental right of the state and
its people. This act, without justification of any legal, economic or political grounds, alone
attracts violation of the constitutional rights and invites judicial review of the Supreme Court.
The President has only powers to amend or modify, not do away with it (as suggested by the
Indian Supreme Court in Sampat Prakash vs State of J&K 1970). Another ground of
challenge may be the fact the population of Ladakh, Kargil and Leh, which have been
brought together, have been given the same status as that of Indian Jammu And Kashmir.
This vague, unexplainable discrimination and violation of unbreakable accords too will be
strong grounds in the Indian Supreme Court petition challenging the presidential order and
constitutional amendment.

Conclusion

So, after analyzing the Armed Force Special Power Act, it is certainly a non justified act on
the part of some people who are coming under it and are citizen of this nation. Firstly, the Act
gives the administrative powers to Armed forces instead of Police which are surely not
designed to work for that. The act gives the army an official ultra vires power which violates
basic international conventions, individual’s fundamental rights and the procedural laws also.
It is agreed that to maintain peace and national securities some steps have to be taken but one
can come with the new alternatives, amending the Act in accordance to International laws as
well as laws of our country.

Moreover the recent revocation of Article 370 has created a whole new problem in Jammu
and Kashmir where there is violation of human rights everyday where minors are arrested just
on the basis of suspicion, politicians and activists are house arrested, internet basic human
needs such as internet and calling services have been suspended and government is not

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concerned about it rather it is proud to revoke the special status of Kashmir where the process
of revocation in itself is in question.

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