A July Supreme Court Order Illustrates That Solutions to Issues with the AFSPA Can Only Come from the Government

07 September 2016
As an all-party delegation prepared to visit Kashmir on 4 September, on the eve of the visit, opposition leaders suggested the government withdraw troops deployed under the Armed Forces Special Powers Act from civilian areas in Kashmir.
Yawar Nazir/Getty Images
As an all-party delegation prepared to visit Kashmir on 4 September, on the eve of the visit, opposition leaders suggested the government withdraw troops deployed under the Armed Forces Special Powers Act from civilian areas in Kashmir.
Yawar Nazir/Getty Images

On 29 August 2016, the government lifted a curfew that had been imposed in Kashmir in the wake of protests that followed the killing of the Hizbul Mujahideen commander, Burhan Wani, on 8 July. During the curfew, which lasted 51 days, Kashmir saw its most violent uprising since 2010. Protests were buoyed by reports of a brutal crackdown by security forces—hundreds of Kashmiris were injured or blinded by the use of pellet guns, and incidents such as the killing of a schoolteacher by security personnel on 18 August received national coverage. By the time the curfew was lifted, nearly 70 civilian deaths had been confirmed, and close to 10,000 people had been injured. But the respite was short-lived. By 1 September, curfew had been reinstated in all major towns in the valley.

A few days before it was first lifted, on 25 August, during his second visit to the state since protests began,the home minister Rajnath Singh had announced that an all-party delegation would soon visit Kashmir. A home ministry official later said that the delegation would leave on 4 September. On the eve of the visit, leaders from the Communist Party of India and the Communist Party of India-Marxistsuggested, among other things, that the government withdraw troops deployed under the Armed Forces (Special Powers) Act, or the AFSPA, from “civilian areas” in the state. The withdrawal did not occur. During the visit, separatist leaders refused to meet members of the delegation. When the visit concluded on 5 September, little headway had been made on the situation in the state. Currently, political resolution in the near future seems unlikely. It is safe to say that mutual distrust endures on all sides, and that the continued application of martial laws such as the AFSPA will further fuel resentment and fear among the people of Kashmir.

In the context of this political dialogue, with the AFSPA as background, it is useful to go back to an event of 8 July. The same day that Wani was killed, far away from Kashmir, the Supreme Court passed a detailed interim order—a preliminary order before the final judgment—in the Extra Judicial Execution Victim Families Association (EEVFAM) case, which arose out of a writ petition lodged by the EEVFAM in 2012. The case considers 1,528 instances of alleged extra-judicial killings by security forces, including the army, deployed in Manipur under the AFSPA. (Disclosure: between 2013 and 2014, I assisted the Amicus Curiae, an impartial advisor to the court, on this case). In the current context, the order makes for an instructive read.

In the order, a two-judge bench held that any use of excessive force by security forces is unlawful, even if they are deployed in disturbed areas under the AFSPA. It also stated that any alleged use of such force must be investigated by the state, while chiding it for having done so in a shoddy manner in the past. Many media reports highlighted the order for its strong stance on excessive force, and some celebrated the court’s remarks as putting an end to the impunity afforded to the armed forces under the AFSPA.

While that perception may stand, the order actually says little that has not been said before by courts. In fact, it is primarily an act of consolidation, where the court brought together jurisprudence evolved over many cases. Through it, the court has retraced its past finding upholding the constitutionality of AFSPA, and retraced the restrictions it imposed on the scope of its provisions. These include restrictions on Section 4, which outlines the scope of the army’s power to use force. The court also restated its resentment at the way in which the state investigates allegations of extra judicial killings and again lamented the feeble interventions of human-rights bodies such as the National Human Rights Commission.

Manu Chaturvedi is a Delhi-based lawyer.

Keywords: Manipur Kashmir Indian Supreme Court AFSPA security Armed Forces Special Powers Act armed forces IPC democratic rights Extra judicial killings interim order
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