Armed Forces Special Powers Act (AFSPA), as the name suggests, gives special powers to the armed forces to be exercised in a specific region, declared as “disturbed” areas. There are two Acts, AFSPA, 1958 extended to some parts of Arunachal Pradesh, Assam, Manipur, Nagaland, and Tripura (in 2018, Center revoked AFSPA from Meghalaya) and AFSPA, 1990 extended to the state of Jammu and Kashmir. In the present article, we shall look into the following points:
- Powers vested by AFSPA
- How AFSPA affects and has affected women’s rights
- Justice Verma committee’s report
Powers under AFSPA
AFSPA, 1958 and 1990 are concise Acts comprising of seven and eight sections respectively. However, it protects the personnel of armed forces acting under the Act from any legal proceedings, except the ones instituted with the prior sanction of the Central government.
AFSPA gives a wide-ranging power to armed forces. An officer of the armed forces empowered under the Act, if he thinks necessary, can exercise the following powers:
- Power to fire: an army personnel may, after giving warning, fire or use force, which may result into death, upon any person acting in contravention of law or order prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances
- Power to destroy structure/ establishment: any army personnel has the power to destroy any structure or establishment, which is being used or is likely to be used as a fortified shelter for armed attacks, or as a training camp for armed volunteers or is used as a hide-out by armed gangs or absconders
- Power to arrest: an army personnel can without warrant arrest any person who has committed a cognizable offence, or against whom there is a suspicion that he might have committed, or may commit a cognizable offence.
- Power to search and seize: officers of armed forces, under the Act, can, without a warrant, enter and search any premises to effect an arrest, seize any property believed to be stolen or any unlawfully kept arms, ammunition or explosive substances or recover any person believed to be wrongfully restrained in such premises.
- Power to stop, search and seize any vehicle (provision only present in AFSPA, 1990): army personnel, under the Act, may stop, search and seize any vehicle suspected of carrying, unlawfully, arms or ammunition or any proclaimed offender or any person who has, or who is a suspect of committing or about to commit a non- cognizable offence
AFSPA gives a wide-ranging power, from arrest and search to kill anyone. Exercise of such power is very subjective to every army personnel, who in addition to such powers, is protected from any legal proceedings.
As Lord Acton said, power corrupts, and absolute power corrupts absolutely. In the present scenario where there is a huge power vested in the armed forces, there is a likelihood of misusing and abusing the power.
AFSPA and Women’s Rights
In a survey conducted by International Committee of the Red Cross 1,491 detainees in Jammu and Kashmir were interviewed, it was found that there were 852 cases of ill-treatment of detainees, out of which 171 reported to have been beaten whereas the rest were subjected to torture which includes electrocution, hanging from ceiling, tortured with water, etc. including sexual violence cases1.
Due to the protection given under AFSPA and rigid administration in the areas where AFSPA is in force, such cases hardly see the light of justice. In the following, we shall look into the major women rights’ violation cases in the areas affected by AFSPA:
Kunan- Poshpora case, 1991
The infamous mass rape case of Kunan and Poshpora villages situated in the state of Jammu and Kashmir is the most gruesome and is a heinous violation of women’s and human rights. The incident took place between the night of February 23- February 24, 1991, where it is alleged that the armed forces while conducting search operation raped around 30 women from the villages.
Mufti Bahauddin Farooqi, Former Chief Justice of Jammu and Kashmir High Court, noted that “he had never seen a case in which normal investigative procedures were ignored as they were in this one.”2 Police machinery stopped the investigation into the case by October 1991 due to lack of evidence.
In 2011, State Human Right Commission (SHRC), made certain recommendations to the State government, which included reopening of the case and prosecution of a senior official, accused of deliberately obstructing the investigation. But the recommendation of the Commission was not enforced by the State, following which a PIL by Support Group for Justice for Kunan Poshpora, was filed in Jammu and Kashmir High Court in 2013 for its enforcement. High court found that the recommendations by SHRC were well-founded and backed by evidence, therefore the State must pay the compensation of Rs. 2 lakhs within three months3. State went in appeal in the Supreme Court against this order, where the order by the High court was stayed by the Supreme court in 2014.
Thangjam Manorama rape case, 2004
Manorama, 30 years old, was arrested by the 17th Assam Rifles on July 11, 2004, from her residence. She was found dead the next morning, with gunshots and bruises on her body. Due to widespread protest following the death of Manorama, a committee led by Justice Upendra Singh was held to investigate into the case. During the investigating process by the Committee, doctors conducting the autopsy report said that it is difficult to ascertain whether Manorama was raped or not because of the injuries in the lower part of the body. The Central Forensic Science Laboratory in Kolkata in its report submitted to Justice Upendra Singh committee found some semen marks on the clothes of Manorama4.
The findings of the committee were not taken into consideration by the Guwahati HIgh court, and the petition was dismissed. However, when the matter went to the Supreme court, the court as an interim award, ordered a compensation of Rs. 10 lakhs5.
Shopian Double Murder Case, 2009
In May 2009 two sisters in law- Asiya and Neelofar went missing from their house and were found dead- raped and murdered. It was alleged that the duo was raped and murdered by the personnel of security forces. The CBI investigation report found that the two women, sisters in law, were neither raped or murdered. CBI filed a charge sheet against six doctors involved in the prior post mortem which held that the cause of death were cardiovascular arrest and neurogenic shock, five lawyers and two civilians, including the brother of one victim. The report found that these thirteen people are liable for conspiring to direct public anger towards security forces6. It had been nine years and the justice has still not been given.
The term “ half widows” is given to those women in Kashmir, whose husbands have gone missing. The plight of these women is that they don’t know if their husbands are dead or alive, because of which they are called half widow7. In this state of unsurety, half widows were not allowed to remarry. But in 2013, the fatwa was passed which allowed half widows to remarry after the waiting period of four years8.
Justice Verma’s report
In 2013, in the aftermath of Nirbhaya gang rape, the Supreme court appointed a committee headed by Justice Verma. The purpose of the committee was to recommend amendments and changes in the criminal legal system with respect to women’s rights. Among its recommendations, specific emphasis was made to women’s rights and AFSPA. The committee acknowledged that there a number of cases of sexual violence with women in ‘conflict areas’, and those cases must be treated with equal dignity as the cases in ‘non-conflict areas’ of the country are treated. The committee recommended9:
- The cases of sexual violence against women by the army personnel must be tried under ordinary criminal law, and must not be prevented by the provisions of AFSPA.
- There must be special commissions, either judicially or legislatively appointed, to ensure the safety of women, female detainees and initiate action for redress and criminal prosecution in all cases of sexual violence against women by armed personnel.
- The law with respect to the detention of women during specific hours of the day must be strictly followed
- Jurisdictional issues and AFSPA must be reviewed.
Supreme court has given guidelines for army personnel so that they do not exceed the jurisdiction and exercise only the powers vested by AFSPA10. The court has time and again asserted that any act done by the army personnel, out of their jurisdiction and powers conferred by AFSPA like cases of sexual violence or extra judicial killings, shall be tried in ordinary courts under ordinary law and shall not be prevented by the provisions of AFSPA11.
As it has been pointed out time and again, may it be by Justice Verma committee report or Supreme court, it must be understood that AFSPA only protects those acts which were done in accordance with the authorized power vested in army personnel. It should not and does not protect armed forces for any such acts which fall outside of the purview of the Act.
We must treat the violation of women’s rights with as much dignity and respect, as we do where AFSPA is not in force. The gravity and heinousness of an act does not diminish if it happens where AFSPA is enforced.
1. WikiLeaks cables: India accused of systematic use of torture in Kashmir, December 6, 2010, The Guardian, accessed from: https://www.theguardian.com/world/2010/dec/16/wikileaks-cables-indian-torture-kashmir
2. India Moves Against Kashmir Rebels, April 7, 1991, accessed from: https://www.nytimes.com/1991/04/07/world/india-moves-against-kashmir-rebels.html
3. Kunan-Poshpora rapes: HC asks J&K to consider paying compensation in 3 weeks, July 2, 2014, accessed from: https://indianexpress.com/article/india/india-others/kunan-poshpora-rapes-hc-asks-jk-to-consider-paying-compensation-in-3-weeks/
4. Manipur: Semen found on Manorama’s clothes, August 26, 2004, accessed from: https://www.rediff.com/news/2004/aug/26mani.htm
5. Union of India & anr. v State of Manipur and anr., SLP(C) 14726-14730/2011, accessed from: https://www.sci.gov.in/jonew/bosir/orderpdf/2125698.pdf
6. No rape or murder in Shopian: CBI, December 15, 2009, accessed from: https://economictimes.indiatimes.com/news/politics-and-nation/no-rape-or-murder-in-shopian-cbi/articleshow/5338401.cms
7. Soudiya Qutab, “Women Victims of Armed Conflict: Half-Widows in Jammu and Kashmir” Sociological Bulletin, vol. 61, no. 2, 2012, pg. 255–278, accessed from: www.jstor.org/stable/23620967.
8. Kashmir’s Half Widows can remarry after four years, December 27, 2013, accessed from: https://www.indiatoday.in/india/story/kashmirs-half-widows-can-remarry-after-four-years-222161-2013-12-27
9. J. J.S. Verma, J. Leila Seth, G. Subramaniam, Report of the Committee on Amendments to Criminal Law(2013), pg. 149-151
10. Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431
11. Extra Judicial Execution Victim Families Association & Anr. v Union of India & Anr., WP (Cr) No.129/2012
Symbiosis Law School, NOIDA