SC RULINGS:

Every death caused by the armed forces in a disturbed area, whether the victim is a dreaded
criminal or a militant or a terrorist or an insurgent, should be thoroughly enquired into, the
Supreme Court held on Friday. This is to address any allegation of use of excessive or
retaliatory force beyond the call of duty, the court said.

“It does not matter whether the victim was a common person or a militant or a terrorist, nor
does it matter whether the aggressor was a common person or the state. The law is the same
for both and is equally applicable to both... This is the requirement of a democracy and the
requirement of preservation of the rule of law and the preservation of individual liberties,” a
Bench of Justices Madan B. Lokur and U.U. Lalit said in an 85-page judgment.

The judgment came on a plea by hundreds of families in the north-eastern State of Manipur
for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters
involving the Army and the police.

Throwing out the government’s argument that lack of immunity from prosecution would have a
demoralising impact on the security forces, the court asked the Centre to spare a thought for the
“equally unsettling and demoralising” picture of a citizen living under the fear of the gun in a
democracy.

“It would not be correct to say that merely because a person was carrying arms in a
prohibited area, he or she becomes an enemy or an active member of a banned or unlawful
organisation... Before a person can be branded as a militant or a terrorist or an insurgent,
there must be the commission or some attempt or semblance of a violent overt act,” the
judgment held.

A thorough enquiry should be conducted into “encounter” killings in disturbed areas because
the “alleged enemy is a citizen of our country entitled to all fundamental rights including
under Article 21 of the Constitution.”

he top court’s judgment last July ruled that despite the Armed Forces (Special Powers) Act, or AFSPA,
the armed forces cannot use “excessive and retaliatory force” in Manipur.

The Supreme Court invoked the nationalist spirit when it said: “If members of our armed forces are
deployed and employed to kill citizens of our country on mere allegation or suspicion that they are
‘enemy’ not only the rule of law but our democracy would be in grave danger.”

“SC ORDERS ON AFSPA PROVE THAT ITS A DRACONIAN PROVISION, NOT AN ENABLING ONE”
COMMITTEES ON REPORT:

A high-level Commission headed by the retired Supreme Court judge Santosh Hegde had
said in its report to the Supreme Court in 2013 that none of the victims of the ‘encounter’
killings in certain parts of ‘disturbed areas’ had any criminal record nor were any of them
involved in any kind of insurgency activity. In fact, the Commission found an identical
pattern in most of the killings.

The Hegde Commission had gone on record to say that AFSPA was an impediment to
achieving peace in both northeastern states as well as Jammu and Kashmir. Justice Jeevan
Reddy Committee, which was set up by the UPA government in 2005 to look into the charges
regarding the misuse of the provisions of the AFSPA also held that the draconian law was
against the spirit of the rule of law and must be repealed.

Even the JS Verma commiittee, which was set up by the UPA government in the aftermath of
the heinous Nirbhaya rape case, had some bitter truths to tell about AFSPA. In its report, the
Committee said: “We note that impunity for systematic or isolated sexual violence in the
process of Internal Security duties is being legitimised by the Armed Forces Special Powers
Act which is in force in large parts of our country. It must be recognised that women in
conflict areas are entitled to all the security and dignity that is afforded to citizens in any
other part of the country. India has signed the “International Convention for the Protection of
All Persons from Enforced Disappearance” which has to be honoured.”

The Verma Committee report went on to say: “To this end, we make the following
recommendation for immediate implementation:

‘Sexual violence against women by members of the armed forces or uniformed personnel
must be brought under the purview of ordinary criminal law.’

Justice JS Verma, a former chief justice of the Supreme Court, also made a forceful plea to
review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas
to restore confidence in the administration in such areas.

JEEVAN REDDY

Justice Jeevan Reddy Committee says the Act is a "symbol of oppression, instrument of high-
handedness"

. The 147-page report of the Justice B.P. Jeevan Reddy Committee a copy of which is now
with The Hindu unambiguously recommends the repeal of the controversial law against
which people in Manipur and elsewhere in the North-East have been agitating for several
years.

"The Armed Forces (Special Powers) Act, 1958, should be repealed," it notes in its
recommendations. "The Act is too sketchy, too bald and quite inadequate in several
particulars".

The report adds that the impression gathered by the Committee during the course of its work
is that "the Act, for whatever reason, has become a symbol of oppression, an object of hate
and an instrument of discrimination and high-handedness."
On this point, the Jeevan Reddy Committee's findings are clear: "It is highly desirable and
advisable to repeal the Act altogether, without, of course, losing sight of the overwhelming
desire of an overwhelming majority of the [North-East] region that the Army should remain
(though the Act should go)."

INTERNATIONAL ORGANIZATIONS ON SPAFA:

A perusal of the provisions of AFSPA illuminates the extent of unchecked power in the hands
of the armed forces. It is a stark violation of Articles 14, 21 and 22 of our Constitution. It
has left the people in North East and Kashmir at the mercy of uniformed men by declaring
these regions as “disturbed area”. Not only Indian Law but International Law has also been
violated. AFSPA 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, and the UN Principles
on Effective Prevention and Investigation of Extra- legal and sum

B) INTERNATIONAL LAW

Under relevant international human rights and humanitarian law standards there is no
justification for such an act as the AFSPA. 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, and the UN Principles on Effective
Prevention and Investigation of Extra- legal and summary executions.

A UDHR argument would just be repetitive with ICCPR so SAHRDC has not done it but the
UDHR articles which the AFSPA violates are the following: 1 – Free and Equal Dignity and
rights, 2 – Non- discrimination, 3 – Life, liberty, security of person, 5 – no torture, 7 –
equality before the law, 8 – effective remedy, 9 – no arbitrary arrest, 17 – property.

AFSPA violates INTERNATIONAL LAW

Under relevant international human rights and humanitarian law standards there is no
justification for such an act as the AFSPA. 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.

The UDHR articles which the AFSPA violates are the following: 1 - Free and Equal Dignity
and rights, 2 - Non- discrimination, 3 - Life, liberty, security of person, 5 - no torture, 7 -
equality before the law, 8 - effective remedy, 9 - no arbitrary arrest, 17 - property.

International Covenant on Civil and Political Rights ("ICCPR")

AFSPA violates International Customary Law

The UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for
Protection of All Persons Under any form of Detention, and the UN Principles on Effective
Prevention and Investigation of Extra-legal and summary executions all form part of
international customary law because they were passed by UN General Assembly resolutions.
They lend further strength to the conclusion that the AFSPA violates basic human rights
standards.

AFSPA violates International Humanitarian Law

The four Geneva Conventions of 1949 along with the two optional protocols, constitute the
body of international humanitarian law. These provisions are suited to human rights
protection in times of armed conflict. Under these conventions the International Committee
of the Red Cross (ICRC) is given access to all international conflicts. In non-international
armed conflicts, the ICRC can only offer its services.