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Essex Human Rights Review Vol. 9 No. 1 June 2012

Lawfully Wedded to Democracy?

India and the Armed Forces (Special Powers) Act

MUKUL VIMUG

Abstract The Armed Forces (Special Powers) Act (AFSPA) has been intermittently in effect in the disturbed areas in India since independence (1947) in Punjab (1983-1992) and continues to be in effect in Kashmir and Northeast India since 1990 and 1958 respectively. The enactment is as a result of armed violence perpetrated between the state and the armed groups who are allegedly fighting for the right to self-determination claiming their activities as a justifiable response to the ‘occupation’ by the state. The Act confers sweeping powers on the armed forces, including the power to use lethal force, arrest without warrant, destroy or search without warrant any premises wrongly restrained or confined while the armed forces are all but immune from prosecution relating to any acts performed in the exercise of their duties. The protracted enactment and the substantive provisions of the Act has raised concerns in the light of the state’s international human rights obligations, the state’s failure to protect her own people by conferring excessive powers to armed forces and legitimising the use of force without sufficient limitations and, raising questions as to whether such actions oblige India to declare a state of emergency. Despite recourse to rhetoric about counter-terrorism, the AFSPA places the state in a difficult position at a time when it is aggressively canvassing for a permanent seat in the United Nations (UN) Security Council and post the UN Security Resolution against Sri Lanka (22 March 2012) calling the state to investigate serious allegations of civilian casualties from the LTTE civil war. The latter has, for the first time made headway into the ways and methods employed by the armed forces in democratic states to address localised situations where communities are fighting for secession though the right to self-determination. India too is under international scrutiny with the UN calling for the repeal of the AFSPA after barely seven days of the UN resolution on Sri Lanka citing that the Act has no role to play in democracy.

1. Introduction

The paper examines India’s responses key among them the enactment and invocation

of the Armed Forces (Special Powers) Act (AFSPA)1 to domestic unrest and armed conflict in light of the state’s international treaty obligations. While the armed groups that continue to cause this unrest view their activities as justified by the regional desire to obtain independent statehood and self-determination, the Government of India views their activities as terrorism. Although the discussion of the history of the conflict focuses on the demands of armed groups demanding secession through self-determination, the state’s responses and international obligations must be understood as falling within the arena of counter-terrorism; from the state’s perspective at least the issue is one of

Mukul Vimug has an LL.M. in International Human Rights Law, University of Essex, United Kingdom

(2003-04). He was a Visiting Researcher at Harvard Law School, Boston, MA (2005-06 and 2007) and is currently a Ph.D. fellow at the Tata Institute of Social Sciences, Mumbai, India. 1 The Armed Forces (Special Powers) Act (AFSPA), 1958; Act 28, 11 Sept. 1958. Available at: http://mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf. Last accessed 10 June 2011.

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terrorism, with all its attendant implications and arguments about the necessity of protecting innocent citizens sometimes requiring the suspension of rights.

The first section of the paper examines the historical background of the armed conflicts that gave rise to the AFSPA. This briefly includes an insight of India’s independence formed from a loose conglomeration of princely States and provinces which demanded independent statehood from the Indian state immediately after independence. This led to increased violence and the enactment of the AFSPA in 1958 which formally authorised the employment of the armed forces. The section also examines the state’s justification for the Act, despite severe domestic and international criticism raising serious concerns over the use of armed forces by the state against her own people and the enactment supplanting civil authority.

The next section explores the substantive provisions of the AFSPA in relation to India’s international obligations under various instruments, including human rights treaties. The rights threatened by the AFSPA include the rights to life and to liberty.2 Of equal concern is the fact that the AFSPA allows the armed forces to act with impunity, as it protects them from being prosecuted (except with the sanction of Central Government) for any acts carried out in the course of their duties.3 The paper also examines India’s reports, under Article 40 of the International Covenant on Civil and

Political Rights (ICCPR),4 to the UN Human Rights Committee and their responses, especially in relation to the right to life (Article 6), the right not to be subjected to cruel, inhuman or degrading treatment or punishment (Article 7) or to deprivation of liberty (Article 9), and the right to equality before the law (Article 14).5 In exploring these issues, the discussion also examines the powers vested in the law enforcement officials of other states experiencing similar difficulties and also the measures they have taken to address the need to ensure the accountability of the armed forces.

The penultimate section of the paper examines whether the AFSPA obliges the Government of India to declare a state of emergency prior to invoking the AFSPA.6 In doing so, the paper analyses the provisions and limitations of the Indian Constitution and compares these provisions with those in Article 4 of the ICCPR. The section also examines the conditions of proclamation of emergency under the Indian Constitution which limits the use of emergency powers in the possible event of a war, external aggression and an armed rebellion. Since India refers to these disturbed areas as acute law and order situations, the AFSPA does not oblige India to declare a state of emergency.

In Conclusion, the final section the paper raises concerns on the state’s justified necessity of protecting innocent citizens against terrorism by suspending their rights. This places the state in a difficult position at a time when it is aggressively canvassing for a permanent seat in the UN Security Council.

2 AFSPA, 1958. Section 4(a). See n.1. 3 Ibid. at Section 6. 4 United Nations General Assembly (UNGA) res. 2200A (XXI), 16 Dec. 1966. Entered into force 23 Mar. 1976 in accordance with Article 49. 5 Report of the Human Rights Committee, 52nd Sess. UN Doc. A/52/40 Vol. 1 No. 40 (1997) para. 433.

Available at: http://www.bayefsky.com/general/a_52_40_vol._i_1997.php. Last accessed 20 June 2011. 6 The Human Rights Committee, in their concluding observations on the second periodic report of the State, expressed hope that the Supreme Court of India would examine the AFSPA with regard to its compatibility with the ICCPR in the NPMHR case (CCPR/C/79/Add. 81, para. 18). The Judgment did not refer to any compatibility issues. See also briefing on the AFSPA 1958, Amnesty International ASA 20/025/2005. Furthermore, see report of the Human Rights Committee, 52nd Sess. UN Doc. A/52/40 Vol. 1 No. (1997), para. 434. Available at: http://www.bayefsky.com/general/a_52_40_vol._i_1997.php. Last accessed 20 June 2011.

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2. Historical Background

Following the partitioning of British India and the birth of the Dominions of India and Pakistan, one of the core challenges was to integrate the 562 princely States and provinces7 within the newly independent country of India, which technically became a sovereign state after the Independence Act 1947.8 Junagadh in Gujarat, Hyderabad in Punjab, and Manipur and Nagaland in Assam sought independent statehood but eventually acceded to India. Jammu and Kashmir initially chose independence before signing the instrument of accession9 on 26 October 1947, following the tribal invasion from Pakistan that precipitated the first Indo-Pakistani conflict (1947-48). Despite accession, violence continued to foment in Manipur, Nagaland and Punjab, all of which demanded secession. To quell the disturbances, India enacted the Armed Forces (Special Powers) Act 1948 (AFSPA).10 This was followed by the Assam Maintenance of Public Order (Autonomous District) Act 195311 and the Punjab Security of State Act 1953.12 Finally, the Armed Forces (Special Powers) Act 195813 came into force after the 1948 version was repealed.

The AFSPA 1958 formally involved the armed forces within the law enforcement paradigm, conferring on them special powers when deployed in disturbed areas.14 Notwithstanding, armed violence from those demanding secession has continued in these regions to the present day. The state has responded by deploying the armed forces (including the armed forces, the paramilitary forces and the Indian Reserve Battalions) in the north-eastern region (intermittently since 1958), Kashmir (since 1990) and Punjab (1983-1992) through the use of the AFSPA.15 In the north-eastern region, ‘the entire

7‘Parliament and India’, UK Parliament publication, 1858-1947. Available at: http://www.parliament.uk/business/publications/parliamentary-archives/archives-highlights/indian-independence/. Last accessed 20 June 2011. See also ‘Independent India’, The Telegraph. Available at: http://www.telegraph.co.uk/news/1399815/Independent-India.html. Last accessed 20 June 2011. 8 The Indian Independence Act 1947, Chapter 30, 10 and 11 Geo 6, 18 July 1947. ‘An Act to make provision for the setting up in India of two independent Dominions, to substitute other provisions for certain provisions of the Government of India Act 1935, which apply outside those Dominions, and to provide for other matters consequential on or connected with the setting up of those Dominions’. Available at: http://www.legislation.gov.uk/ukpga/Geo6/10-11/30. Last accessed 19 June 2011. 9 The agreement was subject to the holding of a plebiscite once the situation stabilised. India vested special status in the states of Jammu and Kashmir under Article 370 of the Indian Constitution at the time of the signing of the Instrument of Accession. 10 AFSPA Act 3, 1948. It is derived from the Armed Forces (Special Powers) Ordinance 1942, which was created to quell the Quit India Movement. 11 Assam Maintenance of Public Order (Autonomous District) Act 1953, Act 16. Until 1953, most of Northeast India was considered to lie within the Assam province. Nagaland was the first area to gain statehood (in 1963), followed by Meghalaya (in 1971), Tripura and Manipur (in 1972), and Mizoram Arunachal Pradesh (in 1987). 12 Punjab Security of State Act 1953, Act 12, 16 Apr. 1953. 13 AFSPA, Act 36, 1958 14 The term ‘Disturbed Areas’ was first used in the Assam Disturbed Areas Act 1955, aimed at restoring and maintaining public order in the face of increasing violence in the Assam province. No precise definition of the term was given but the State Government was empowered to declare any area a ‘Disturbed Area’ through notification in the official Gazette. It also conferred powers on law enforcement officials to quell disturbances. 15 The abbreviation ‘AFSPA’ is intended to include all amended enactments of the Armed Forces (Special Powers) Act 1958 since these amendments did not involve substantive changes. It continues to be in force by simply changing the material field of application. For example, the Armed Forces (Special Powers) Act

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State of Manipur (except Imphal Municipal area), Nagaland and Assam, Tirap and Changlang district of Arunachal Pradesh and 20km belt in the States of Arunachal Pradesh and Meghalaya having common border with Assam have been declared ‘Disturbed Areas’ under the Armed Forces (Special Powers) Act, 1958 as amended in 1972. The Government of Tripura has declared the areas under 34 Police Stations in full and part of the areas under six Police Stations as a ‘Disturbed Area’.’16 Twelve districts of Jammu and Kashmir have been notified as disturbed areas. ‘The areas notified as Disturbed Areas under Section 3 of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 include the districts of Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda in Jammu Division and Srinagar, Budgam, Anantanag, Pulwama, Baramulla and Kupwara in Srinagar Division.’17

The AFSPA continues to draw fierce criticism from international human rights organisations like Amnesty International for being draconian, supplanting civil authority, and violating basic human rights, as well as granting the armed forces impunity.18 The state has also been criticised for its failure to protect her own people by conferring excessive powers to armed forces and legitimising the use of force without sufficient limitations.19 These include: Fire upon even to the causing of death for the maintenance of public order,20 arrest without warrant,21 destroy22 or search without warrant any premises wrongly restrained or confined.23 The armed forces are protected from persecution, as the Central Government must sanction any prosecution or legal

1958 (Act 28) was initially enacted solely with respect to Assam and Manipur. It was amended twice in 1972 (Act 7) for Manipur and in 1986 (Act 69) to make it applicable to Arunachal Pradesh (Act 69), Meghalaya in Mizoram (Act 34), Nagaland and Tripura. The Armed Forces (Punjab and Chandigarh) Special Powers Act 1983 (Act 34) was enacted in Punjab between 1983-92 when the situation turned violent following demands that an independent state of Khalistan be created. Similarly, the Armed Forces (Jammu and Kashmir) Special Powers Act 1990 is still in force in Jammu and Kashmir. 16 Ministry of Home Affairs, Government of India (2010-11) Annual Report: Internal Security, para.2.6 at 24. 17 Ministry of Home Affairs, Government of India (2006-07) Annual Report: Internal Security, para. 2.6 at 7. 18 Amnesty International, ASA 20/025/2005, 9 May 2005. Available at: http://www.amnesty.org. Last accessed 4 Sept. 2010. 19 Asian Centre for Human Rights, ‘The AFSPA: Lawless law enforcement according to the law?’ Available at: http://www.achrweb.org/reports/india/AFSPA_report.pdf . Last accessed 10 Dec. 2010. 20 AFSPA, Section 4(a): ‘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’. See fn.1. 21 AFSPA, Section 4(c): ‘Arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest’. See fn.1. 22 AFSPA, Section4(b): ‘if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence’. See fn.1. 23 AFSPA, Section 4(d): ‘enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that purpose use such force as may be necessary’. See fn.1.

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proceeding against a member of the armed forces in relation to acts done or purported to be done in the exercise of their duties.24

Although the Act has been challenged three times since 1975 in the domestic courts (the Supreme Court and the High Court of India), each time it has been upheld. 25 However, in the Naga People’s Movement of Human Rights v. Union of India ([1997] ICHRL 117)26, the Supreme Court not only upheld the constitutional validity of the AFSPA, but also reversed the earlier decision of the Guahati High Court27 on the correctness of the twelve declarations. However, the ruling attempted to moderate the provisions of the AFSPA by issuing a list of ‘Dos and Donts’.

The Jeevan Reddy Review Committee28 recommended the repeal of the Act in 2004, but with the caveat that it should be included as an additional ‘Special Power’ chapter in the Unlawful Activities (Prevention) Act 196729 to enable the armed forces to quell internal disturbances. The Review Committee criticised the Act as a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.30 The Second Administrative Reforms Commission in 2007 and the National Minorities Commission in 2006 finally recommended the total repeal of the Act on the basis that it violates fundamental rights.31 The state is yet to respond, while the armed forces oppose any dilution of their current powers.32

24 AFSPA, Section 6: ‘Protection to Persons acting under Act – No persecution, 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’. See n.1. 25 The Act was first challenged in 1983 in the Delhi High Court in the case of Indrajit Barua v. State of Assam (A.I.R. 1983 Del. 513) in which the court upheld the constitutionality of the AFSPA. The AFSPA was challenged again in 1990 at the Guwahati High Court in the case of People’s Union for Civil Liberties v. Union of India (A.I.R. 1991 Gua. 23). The court reviewed the army's powers and overturned the identification of the twelve districts of the State of Assam as disturbed on the grounds that the Government had not provided sufficient evidence to justify the invocation of the AFSPA in all those districts. When the Central Government appealed to the Supreme Court, the case was granted partial stay pending final hearing. The parts stayed were the orders requiring the Government of Assam to withdraw the disturbed area declaration in respect of the twelve districts where the invocation had been held to be unjustified. The Act was thereafter challenged in the Supreme Court of India in the case of the Naga People’s Movement of Human Rights v. Union of India ([1997] ICHRL 117). 26 India Centre for Human Rights and Law ([1997] ICHRL 117). 27 People’s Union for Civil Liberties v. Union of India. See n.25. 28 ‘Report of the Committee, headed by Justice (Ret.) B.P. Jeevan Reddy, to Review the Armed Forces (Special Powers) Act 1958’ (Ministry of Home Affairs Office Order No.11011/97/2004-NE-III, 19 Nov. 2004). Available at: http://www.hinduonnet.com/nic/afa/. Last accessed 5 Feb. 2011. The Review Committee was constituted following the alleged extra-judicial killing of Ms Thangjam Manorama Devi by the troops of the Assam Rifles in Manipur in 2004. On the night of 11 July 2004, Ms Thangjam Manorama Devi was arrested for being a member of the People’s Liberation Army. Her body was recovered the following day. The Assam Rifles personnel were charged with incommunicado execution and sexual assault. The incident fuelled sentiments against the armed forces and the power conferred on them by the AFSPA. Following this, a group of 32 civil society organisations based in Manipur formed a coalition called the Apunba Lup to protest abuses committed under the AFSPA and call for its repeal. 29 The Jeevan Committee Report, UN Doc. CCPR/C/10/Add. 13 July 1983, 83. 30 Varadarajan, ‘Jeevan Reddy Committee recommends repeal of AFSPA’. See n.15. 31 Praveen Swami, ‘Bit of Consensus’, Frontline, 24(9), 15-24 May 2007. Available at: http://pmindia.nic.in/speech/content.asp?id=529. Last accessed 24 Jan. 2011. 32 ‘A modest proposal on AFSPA’, The Hindu, 21 Dec. 2010. Available at: http://www.thehindu.com/opinion/columns/siddharth-varadarajan/article615837.ece. Last accessed 20 Dec. 2010

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International scrutiny of the Act followed India’s ratification of the ICCPR33 in 1979 and, especially, the submission of India’s first periodic report (under Article 41) to the Human Rights Committee (HRC) in 1983.34 The HRC noted that certain provisions of the AFPSA effectively derogated the rights contained in Article 6, 9 and 14 of the ICCPR.35 India responded by attempting to justify the AFSPA as necessary to address insurgent activities, maintaining that the armed forces played a vital role in helping civil authority to apprehend armed offenders and locate and seize illegal weapons and ammunition.36

However, in 2010 the activities of the Maoist movement37 revived calls for the deployment of the armed forces, following the death of seventy-three Central Reserve Police Force (CRPF) personnel on 6 April 2010 in Chattisgarh.38 The Cabinet Committee on Security is currently examining whether the armed forces should be deployed in the most affected regions.39 Therefore, the Act is unlikely to be repealed despite questions over whether human rights should be defended through military means and whether the rights of the majority of the population should be sacrificed in order to address localised pockets of unrest.

3. India’s Human Rights Obligations

33 India ratified the ICCPR on 10 Apr. 1979 and it entered into force on 10 July 1979 in accordance with Article 49 of the ICCPR. Available at: http://www.bayefsky.com/html/india_t1_ratifications.php. Last accessed 20 June 2011. 34 The Jeevan Committee Report. See n.22. 35 UN Doc. CCPR/C/SR.1042, para. 16. 36 The issue of the deployment of the armed forces in aid to civil authority was also raised during consideration of India's second periodic report by the UN Human Rights Committee in 1996. In reply, India noted that ‘[T]he Armed Forces (Special Powers) Act 1958 was enacted when India was faced with an acute law and order situation on account of activities of insurgents in the border areas in the eastern frontiers of India. Armed raids were being carried out by such insurgents in the small towns, villages and in the tea gardens followed by destruction of property, wanton killings, kidnapping and other acts of violence with the result that people in these areas were living under constant terror and were apprehensive about the safety of their lives and property. The army had to be called out to aid civil authorities for the apprehension of the offenders, who were usually armed, and to assist in the detection and search for the sources of weapons and ammunition supply.’ See UN Human Rights Committee (HRC): Addendum to the Third Periodic Reports of States Parties Due in 1992, India, CCPR/C/76/Add. 6 (17 June, 1996), para. 52. Available at: http://www.unhcr.org/refworld/docid/3ae6b02f3.htm. Last accessed 21 June 2011. 37 Maoist terrorism has followed from the merger of the Maoist Communist Centre and People’s War Group. Ideologically, the organisation seeks to wage war against the Indian Government with the aim of triggering peasant revolution, abolishing class hierarchies, and expanding Maoist-controlled ‘liberated zones’ that might serve as the foundation of an independent Maoist State. India officially recognised the problem in the 2003-04 Report of the Ministry of Home Affairs (MHA 2003-04, p.12, para. 18). One of the core strategies of the movement involves militarisation by acquiring technology and gaining skills relating to the fabrication of improvised explosive devices. The 2004-05 MHA Report recognised that the number of districts affected has increased to 76; thus, the issue is ‘no longer a law and order problem’ but should be ‘tackled on political, social, economic and security fronts’ (MHA, 2004-05, p.18, para. 1.9). In the 2006-07 MHA Report, the situation was again referred to as having complex socio-economic dimensions (MHA, 2006-07, p.24, para. 2.6). 38 Ejaz Kaiser, ‘Maoists kill 73 CRPF men in Dantewada’ The Hindustantimes. Available at: http://www.hindustantimes.com/Maoists-kill-73-CRPF-men-in-Dantewada/Article1-527667.aspx. Last accessed 20 Jan. 2011. See also Sandeep Unnithan with Bhavna Vij-Aurora, ‘Weapon of Last Resort’ India Today. Available at: http://indiatoday.intoday.in/site/Story/100226/weapon-of-last-resort.html?complete=1. Last accessed 20 Jan. 2011. 39 The army has noted that it is too stretched to spare additional troops and that, if deployment is ordered, its members must have adequate legal protection in the form of the AFSPA and related instruments; a view supported by the Ministry of Defence. ‘Too stretched to fight Maoists: Indian Army’, Available at: http://rupeenews.com/2010/06/05/too-stretched-to-fight-maoists-indian-army/. Last accessed 20 Dec. 2010.

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In the case of the Naga People’s Movement of Human Rights v. Union of India (the NMMHR case),40 the legislative competency of the AFSPPA was challenged in the Supreme Court of India on the grounds that the maintenance of public order should be dealt with by the civil administration of individual Indian States and thus, that Parliament had no legislative competency in this matter. The Court argued that even if the AFSPA did not fall within the State ‘list’41 (i.e. the list of matters falling under the powers of the civil administration of individual States), Parliament would still have residuary powers under Articles 246 and 248 of the Indian Constitution,42 read in conjunction with Entry 97 of the Union list.43 The Court further held that since the forty-second amendment to the Indian Constitution, Parliament was competent to enact the AFSPA as Article 355 of the Indian Constitution imposes a duty upon the Union (i.e. on the state of India) to protect every individual Indian State from internal disturbance.44 Therefore, the deployment of the armed forces under the AFPSA can be regarded as intended to aid civil administrations, as opposed to being intended to maintain public order, which remains an individual State subject under Entry 1 of List II.45 Thus, the Court argued that the AFSPA did not supplant civil administration since the purpose of the ‘aid’ was to ‘enable’ the civil administration of individual States to discharge its functions regarding the maintenance of public order in disturbed areas. Furthermore, the idea of aid presupposes the continued existence of the authority to be aided, which implies that civil powers are expected to continue to govern those matters they are mandated to deal with, even after

40 See n.26. 41 Indian Constitution, Part XI: ‘Relations between the Union and State’, Seventh Schedule (Article 246) List II State List. Available at: http://lawmin.nic.in/coi/coiason29july08.pdf. Last accessed 21 June 2011. 42 Indian Constitution, Articles 246 and 248. Available at: http://lawmin.nic.in/coi/coiason29july08.pdf. Last accessed 21 June 2011. 43 Part XI of the Indian Constitution (Article 245 to 263) relates to the relations between the Union and the States and the distribution of legislative powers between the Union and the States are spread out over Article 245-254. Amongst them Article 245 (‘Extent of laws made by Parliament and by the Legislatures of States’), 246 (‘Subject-matter of laws made by Parliament and by the Legislatures of States’) and 248 (‘Residuary powers of the Legislation’) are particularly important. Article 245 deals with the distribution of powers between the States and the Union authorising the Union Parliament to make laws applicable in the whole or any territory of India while the State Parliament is empowered to make laws applicable in the whole or any part of the state within the state itself. There is a three-fold distribution of legislative power-represented by three lists – Union, State and Concurrent. The Union List includes 97 subjects while the Concurrent List includes 47 subjects and 66 subjects are contained in the State List. However, the federal powers reign supreme since the Parliament can also make laws in national interest to any of the 66 subjects contained in the State subject to recommendations of the Rajya Sabha (Council of States or the Upper House in Parliament) and also has the exclusive powers to make any laws not mentioned in the Concurrent or the State List under Article 248 (‘Residuary powers of the Legislation’) of the Indian Constitution. List I or the Union List, List II or the State List and List III or the Concurrent List are included in the Seventh Schedule. See the NMMHR case, para. 2., fn.20. See also Union of India v. Harbhajan Singh Dhillon (1971) 2S.C.C. 779: (1972) 2S.C.R. 33. S P Mittal v. Union of India, (1983) 1 S.C.C. 51: (1983) 1 S.C.R 729. Kartar Singh v. State of Punjab, (1994) 3S.C.C. 569. 44 Indian Constitution, Art. 355. Available at: http://lawmin.nic.in/coi/coiason29july08.pdf. Last accessed 23 June 2011. 45 The State Subject List, Entry 1 ‘Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof’ in aid of civil power. Available at: http://www.vakilbabu.com/Laws/SubList/SList.htm. Last accessed 22 June 2011. The Constitution (42nd Amendments) Act 1976 inserted Entry 2A into the Union List. It covered ‘Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.’ Available at: http://www.constitution.org/cons/india/tamnd42.htm

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the deployment of the armed forces.46 The ruling also upheld the fact that invoking such an act is not ultra vires and that it does not constitute a state of emergency in the affected regions. However, it remained silent on whether the law enforcement threshold constituted a state of emergency under Article 4 of the ICCPR. Thus, the Supreme Court upheld the AFSPA, ruling it to be constitutional.

Although the Court did not define what is meant by the term ‘disturbed area’,47 it did rule that under Section 3 of the AFSPA (as amended by Act 7 of 1972) the Central Government was empowered to make such a declaration without consulting the specific State in whose jurisdiction the area falls.48 Indeed, a declaration that an area is disturbed depends on the satisfaction of government officials and is not subject to judicial review. However, the Court sought to clarify that such an order does not result in the taking over of the State’s civil administration by the armed forces of the Union since the powers granted by the AFSPA can only be exercised with the cooperation of the civil authorities. The ruling remained silent on the substantive provisions of the AFSPA but did issue a list of legally binding ‘Dos and Don’ts’ within the terms and reference of the Act. Despite this, in considering India’s second period report, the HRC expressed concern about the application of the AFSPA and stated that its provisions are incompatible with India’s obligations under the ICCPR (especially as regards Articles 4 and 6 of the ICCPR).

3.1 The Right to Life

The right to life is both a standard of customary international law and a specific right in various international conventions. Article 6 of the ICCPR, Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,49 and Article 4 of the African Charter on Human and People’s Rights50 refer to the ‘right to life’. Article 4 of the American Convention on Human Rights refers to it as ‘the right to respect for one’s life’.51 It has been accorded the status of a ‘supreme right’52 from which

46 Government of India, Ministry of Home Affairs Report of the Committee, headed by Justice (Ret.) B.P. Jeevan Reddy, to Review the Armed Forces (Special Powers) Act 1958. PART-V Draft Chapter V I A to be inserted in the Unlawful Activities (Prevention) Act, 1967. Deployment of the Armed-Forces of the Union, 2005, 82 at para.4. The Jeevan Reddy Committee recommended that the armed forces, ‘shall act in aid of civil power and shall, to the extent feasible and practicable, coordinate their operations with the operations of the Security Forces of the State Government. However, the manner in which such forces shall conduct their operations shall be within the discretion and judgment of such forces.’ 47 The question of the ambiguity of the term ‘Disturbed Area’ in the AFSPA was first challenged in the case of Indrajit Barua v. State of Assam (AIR 1983 Del 513). The Court decided that the lack of precision was not an issue because the Government and people of India understood its meaning. On the other hand, the Disturbed Areas (Special Courts) Act 1976 states that when ‘a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquillity, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may (. . .) declare such area to be a disturbed area.’ 48 The NMMHR case. See n.20. 49 Council of Europe, ‘Convention for Protection of Human Rights and Fundamental Freedoms’, Rome, 4.XI.1950, ETS No 5. Available at: http://conventions.coe.int/treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG.

Last accessed 23 June 2011. 50 African [Banjul] Charter on Human and Peoples’ Rights, adopted 27 June 1981. OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 Oct. 1986. Available at: http://www1.umn.edu/humanrts/instree/z1afchar.htm. Last accessed 23 June 2011. 51 American Convention on Human Rights, OAS Treaty Series No.36, 1144 U.N.T.S. 123, entered into force 18 July 1978. Available at: http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm. Last accessed 23 June 2010. 52 General Comment No.6: Article 6 (Right to life), 16th Sess. (1982), 1. The term ‘inherent’ (in Article 6 of the ICCPR) is intended to emphasise the supreme character to the right to life; a right that cannot be

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no derogation is permitted even in times of public emergency.53 The right imposes obligations upon the ‘state to respect and to ensure the enjoyment of the right on the part of all persons within its territory and subject to its jurisdiction’54 as part of jus cogens in international human rights law.55 The obligation ‘to respect’ the right implies that there is a duty upon the state not just to refrain from violating the right, but also to take steps to protect it while the obligation to ensure stems from the obligation of affirmative action, including by punishing those responsible for violations and providing redress for victims. The violations that the state should protect individuals from include criminal acts and also arbitrary killings by its own security forces.56

The right to life and personal liberty guaranteed by Article 21 of the Indian Constitution was initially not absolute: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law. It was a qualified right circumscribed by the possibility or risk of being lost according to the procedure established by law.’57 Subsequently, the developing jurisprudence equated the phrase with ‘prescribed by law’ in the sense of ‘according to due process of law’:58 later the term was construed as a guarantee against executive action unsupported by law. In the case of Sunil Batra v. Delhi Administration,59 Justice Krishna Iyer held that, after the decisions in R.C. Cooper v. Union of India60 and Maneka Gandhi v. Union of India,61 the due process clause must be deemed to be ingrained in Article 21 of the Constitution.62 In Maneka Gandhi v. Union of India,63 the Court held that Article 21 means that in order to deprive a person of his/her liberty the ‘procedure established by law’ must be just, fair and reasonable; the ruling also stated that the courts would have the power to judge the fairness and justness of the procedure.64 Similar views were expressed by Mr Shri C. Upendra Singh, retired

conferred on the individual by society or by the State. See also Nihal Jayawickrama, The Judicial Application of Human Rights Law, National, Regional, and International Jurisprudence (2002), at 256. 53 General Comment No.6, HRI/GEN/1/Rev. 7 (1982), Article 6 (Right to life). See n.58. See also Article 4 of the ICCPR. 54 General Comment No.31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Adopted during the 18th Sess. (2004) on 29 Mar. 2004 at its 2,187th meeting, para.10. 55 UN Doc. ‘International Covenant on Civil and political Rights’. Adopted and opened for signature, ratification and accession by UNGA res. 2200A (XXI) of 16 Dec. 1966, entry into force 23 Mar. 1976, Article 2(1). Available at: http://www.bayefsky.com/treaties/ccpr.php. Last accessed 23 June 2011. Also see General Comment No.31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Adopted during the 18th Sess. (2004) on 29 Mar. 2004 at its 2,187th meeting, para. 10. 56 General Comment No.6. See n.54. 57 The Constitution of India, Article 21. Available at: http://lawmin.nic.in/coi/coiason29july08.pdf. Last accessed 23 June 2011. 58 A K Gopalan v. State of Madras, AIR 1950, SC 27. The violence and riots that occurred during partition and following the assassination of Mahatma Gandhi influenced many members to opt for this clause instead of ‘according to due process of law’. 59 A.I.R. 1978, Supreme Court 1675; (1978) 4 Supreme Court Cases 494(1978)4 SCC 494). 60 All India Reporter 1970SC 564 (AI.R. 1970SC 564). 61 All India Reporter 1978 SC 597 (A.I.R. 1978 SC 597). 62 D.J. De, Interpretation and Enforcement of Fundamental Rights (2000), at 607. 63 Any procedure dealing with the regulation of the exercise of fundamental rights must be ‘fair, not foolish, carefully designed to effectuate, not to subvert, the substantiate right itself. Thus understood, ‘procedure’ must rule out anything arbitrary, freakish bizarre (. . .). This quality of fairness in the process is emphasised by the strong word ‘established’ which means ‘settled firmly’ not wantonly, whimsically. If it is rooted in the legal consciousness of the community it becomes ‘established’ procedure’. Supreme Court of India, 2S.C.R. 621. 64 See also Bachan Singh v. State of Punjab, A.I.R 1982 SC 1325.

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District and Sessions Judge in Manipur, during the Naorem Village Inquiry Commission. The investigation concerned a 1996 incident in which a member of the armed forces fired his weapon, killing a woman from the village.65 The commission held that ‘security forces should resort to firing only if absolutely necessary, that it should not be aimed at ‘taking the life of the assailants’ but only to apprehend the latter after causing the minimum injury and for avoiding immediate danger’ and that ‘special care should be taken in inhabited areas to protect the life and property of innocent civilians’.66

Section 4(a) of the AFSPA confers the same substantive powers to the armed forces as the Armed Forces (Special Powers) Ordinance 1942, including the power to use lethal force if:

‘of [the] 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 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 substance.’67

Thus, in mandating the armed forces to use lethal force, the AFSPA allows them to violate the right to life if it is necessary to do so to maintain public order. The Supreme Court upheld the clause ‘if he [i.e. a member of the armed forces mandated to make decisions about the use of lethal force] is of opinion that it is necessary’, citing the fact that the experience of the armed forces supported the conclusion that when in command of a team in a counter-insurgency operation, officers needed to be able to operate on their own initiative; it cannot be said that that conferment of powers under section 4 on non-commissioned officers (NCOs) reduces the provision invalid on grounds of arbitrariness.68 Thus, the Court ordered that the AFSPA does not violate Article 14 (Equality before law), Article 19 (Protection of certain rights regarding freedom of speech) or Article 21 (Protection of life and personal liberty) of the Indian Constitution.69 However, the Jeevan Reddy Committee proposed that only members of the armed forces ‘not below the rank of a non-commissioned officer’ be empowered to use lethal force.70

The ruling requires examination for two reasons. First, the sheer number of personnel authorised by law to take decisions about the use of lethal force is a concern. Second, the training and expertise afforded to NCOs to allow them to independently assess threats in situations involving innocent civilians, especially given that soldiers already enjoy the customary right to self-defence, may well be insufficient. The level of training provided, irrespective of an individual NCO’s battlefield experience, is not commensurate with the powers conferred: The minimum civil education for an NCO is higher secondary. NCOs’ military training varies across section and platoon levels: While a sergeant is expected to lead a section of ten other ranks to battle, a lance corporal has basic knowledge of section tactics but is expected to act only under the command of the section commander, unless acting in self-defence or under the ambit of well-established

65 Between July 2003 and May 2004, the Asian Centre for Human Rights documented over twenty extrajudicial executions and arbitrary killings in Manipur. The AFSPA: Lawless Law Enforcement According to Law? Asian Centre for Human Rights, 21 Jan. 2005. 66 See AFSPA: Lawless law enforcement according to the law? A representation to the Committee to Review the Armed Forces Special Powers Act, 1958. Asian Centre for Human Rights, 21 Jan. 2005, at 28. Available at: http://www.achrweb.org/reports/india/AFSPA_report.pdf (10 Dec. 2005). 67 See n.1. 68 The court referred to the case of Indrajit Barua v. State of Assam, AIR 1983 Del 513 in the Naga People's Movement of Human Rights v Union of India [1997] ICHRL 117 (27 Nov. 1997), para. 44. 69 Naga People’s Movement of Human Rights v Union of India, at 436. See n.20. 70 The Jeevan Reddy Committee, at 5. See n.22.

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battle drills. Thus, it is extremely difficult for NCOs (certainly those below the rank of sergeant) to distinguish a situation in which law and order is threatened versus one in which the threat to law and order also threatens public order. While the Supreme Court has referred to NCOs as havaldar (sergeants), according to the Army Act 195071 the term NCO includes havaldar (sergeant), naik (corporals) and lance-naik (lance corporals).72 For example, an infantry company (usually comprising approximately 130 men) consists of more than fifty officers/junior commissioned officers/NCOs. Thus, a third of the personnel in a company have the power to make decisions about the use of lethal force. The basic unit of a fighting troop is a section commanded by a sergeant, who has the power to order him troops to fire. Except under exceptional circumstances, powers are usually delegated during the commencement of operations; detachments are rarely led by a Corporal or a Lance Corporal and therefore there is no justification for the AFSPA to confer such broad powers on all NCO.

Even the list of ‘Dos and Don’ts’ issued by the Supreme Court in the NPMHR case did not substantially alter the conditions under which lethal force may be used; crucially, the list does not even suggest that it should be considered a last resort. Section 4(a) of the AFSPA is imprecise and grants enough margin to the armed forces to act in contravention of established principles of civilian protection. For instance, the AFSPA contravenes the powers to fire provided under the Code of Criminal Procedure (CrPC) in relation to both the right to self-defence (Section 100)73 and the power to cause the death of a person resisting arrest (Section 46).74 However, the right to life is not merely the right to survive but to live with dignity as a civilised human being.75 Thus, the thresholds mentioned in the AFSPA should be construed as those normally applicable when determining whether state action is necessary in a democratic society76 and therefore, careful scrutiny should be paid to the surrounding circumstances.77

The concept of necessity applies to the hierarchy of coercive measures in which lethal or potentially lethal force is reserved as a last resort. It is complemented by the rule of proportionality, which applies to the nature of the law enforcement objective that the force is used to achieve.78 As the right to life is a supreme right,79 commentary on Article 3 of the UN Code of Conduct for Law Enforcement Officials80 clearly states that the use

71 The Army Act, 1950. Available at: http://www.legalindia.in/the-army-act-1950part-i. Last accessed 23 June 2011. 72 The Army Act 1950, Section 81. Lance corporals are appointed, thus this is not a specific rank. However, they are referred to as NCOs and cannot be awarded punishment of a Sepoy when tried under the Army Act 1950. 73 Code of Criminal Procedure, Section 100. Available at: http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973-3.htm. Last accessed 23 June 2011. 74 Code of Criminal Procedure, Section 46. Available at: http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973-3.htm. Last accessed 23 June 2011. 75 Francis Coralie Mullin v. Administrator, 1981 (1) Supreme Court Cases 608. 76 ICCPR, Article 10(2). See n.4. 77 McCann v. United Kingdom, European Court (1995) 21 EHRR 97. 78 Nigel S. Rodley, The treatment of Prisoners under International Law (Clarendon Press, 1999), at 185. 79 UN Doc. CCPR General Comment No.6. The right to life (art. 6), 04/30/1982, para. 1. Available at: http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3. Last accessed 23 June 2011. 80 UN Doc. Office of the United Nations High Commissioner for Human Rights, Code of Conduct for Law Enforcement Officials. Adopted by UNGA res. 34/169 of 17 Dec. 1979. Available at: http://www2.ohchr.org/english/law/codeofconduct.htm. Last accessed 23 June 2011.

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of firearms should be considered an extreme measure to be employed only when the offender offers armed resistance or otherwise jeopardises the lives of others.81 Principle 9 of the Basic Principles on the Use of Force and Forearms by Law Enforcement Officials82 goes even further.83 In Stewart v. United Kingdom, the European Commission of Human Rights held that:

‘in assessing whether the use of force is strictly proportionate, regard must be had to the nature of the aim pursued, danger to life or limb inherent to the situation and the degree of risk that the force employed might result in loss of life.’84

Section 4(a) of the AFSPA requires that lethal force may be used ‘after giving such due warning as he may consider necessary’; in determining the proportionality of using lethal force, the nature of any warning given must be measured against how immediate the threat is (i.e. how much time the armed forces can reasonably allow before employing lethal force)85 and how much time (if any) is given to the potential targets to respond to the warning. The Guerrero case in Bogotá 86 involved a police raid aimed at rescuing a person who had been kidnapped and was believed to be held prisoner in a house by a guerrilla organisation. The police hid in the house and, without warning, killed seven persons who entered the house solely on the basis that they were suspected to have links with the organisation. The HRC ruled that their actions were in contravention of Article 6(I) of the ICCPR and that they were disproportionate with regard to the applicable requirements of the law enforcement goals. The HRC also indicated that the Columbian police had an obligation, applicable to all state forces, not only to warn individuals before using lethal force but also to give them the opportunity to surrender or to offer an explanation for their presence or intentions.87

3.2 The Right to Freedom of Assembly

Section 4(a) of the AFSPA prohibits assembly of five or more persons and also ‘the carrying of weapons or [of] things capable of being used as weapons or [of] firearms, ammunition, or explosive substances’. The Supreme Court in the NPMHR case ruled that the two issues of carrying weapons or things capable of being used as weapons and the assembly of more than five persons is ‘not arbitrary or unreasonable since the two orders are different in nature in the sense that an order prohibiting the assembly of five or more persons can be issued under Section 144 of the CrPC,88 while an order

81 UN Doc. Office of the United Nations High Commissioner for Human Rights, Code of Conduct for Law Enforcement Officials. Adopted by UNGA res. 34/169 of 17 Dec. 1979, para. 3(c). Available at: http://www2.ohchr.org/english/law/codeofconduct.htm. Last accessed 23 June 2011. 82 UN Doc. Office of the United Nations High Commissioner for Human Rights, Prevention of Crime and the Treatment of Offenders, Havana, Cuba. 27 Aug. to 7 Sept. 1990. Adopted by the 8th United Nations Congress. 83 UN Doc. Office of the United Nations High Commissioner for Human Rights, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principle 9. Adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba. 27 Aug. to 7 Sept. 1990. 84 Stewart v United Kingdom, (Application No.10044/82), Decision of 10 July 1984, para. 19. 85 N. S. Rodley, The Treatment of Prisoners (1999), at 188. In critiquing the case of Kelly and Others v. United Kingdom (in which the European Commission for Human Rights held that the shooting of Kelly and the others who were trying to evade the army checkpoint was justified ‘to effect a lawful arrest’ for the purpose of ‘preventing them from carrying out terrorist activities’). Rodley noted that since the use of lethal force is a measure of last resort, the situation should not merely be hypothetical but imminent. Application 17579/90,74 Decisions and Reports 139 (1993). 86 Guerrero v. Columbia (45/1979), Report of the Human Rights Committee, GAOR, 37th session, Supplement No.42 (1982), Annex XI. 87 Ibid. 88 Code of Criminal Procedure. See n.73.

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prohibiting the carrying of weapons has to be issued under the Arms Act 1959 (or a related law).’89 However, ‘if the word ‘or’ linking the two prohibitory orders is read as ‘and’, then action could only be taken when both orders are contravened.’90 In practice, they are taken as two separate orders but the prohibition of assembly of more than five persons is not in isolation. The assembly has to constitute a threat to public order.

However, the list of ‘Dos and Don’ts’ issued by the Supreme Court in the NMMHR case upheld the provision without limiting the use of force to situations in which the threat to public order is imminent. Hypothetically, even if it is assumed that a threat is imminent, the first step towards the dispersal of an assembly of five or more person should be non-violent; if unsuccessful, next the step should be to gradually increase the degree of force employed, with lethal force reserved as a last resort.91 The applicable provisions of the Code of Criminal Procedure 1973 (Sections 129 to 132)92 require an order from an executive magistrate for the disbanding of an unlawful assembly; if however, an executive magistrate is not present, the order for the dispersal can be given by a commissioned officer93 (not NCOs, as per the AFSPA)94, thus the CrPC includes additional safeguards and restrictions. Moreover, the contravention of Section 144 of the CrPC, which also prohibits assembly of five or more persons, is considered a minor offence punishable by a month’s imprisonment.95 Similarly, Babulal Parate v. State of Maharashtra96 held that restrictions under Article 19 of the Indian Constitution,97 which allows people to ‘assemble peaceably and without arms’ (Article 19(b)), must be reasonable and that Section 144 of the CrPC does not confer arbitrary powers upon magistrates. The HRC has also noted that the AFSPA ‘seems to short circuit the various guarantees laid down in the CrPC (…) and might even short circuit the guarantees to be found in the Constitution itself’.98

Indeed the HRC, in referring to the two orders, asked with concern:

‘What happens if seven relatives are talking about how to conduct a wedding or about some cultural matter, or [are] assembling for family purposes? It seems to me that the wording here is so broad that it could cover lawful exercise of basic liberties’.99

3.3 Reconciling National Interests against Arbitrary Destruction of Property

89 The Arms Act 1959, No.54 of 1959, 23 Dec 1959. 90 NPMHR Case, A.I.R. 1998, at 437. See n.20. 91 UN Code of Conduct for Law Enforcement Officials, Policing Unlawful Assemblies. See n.80. 92 Code of Criminal Procedure, Section 129 (Dispersal of assembly by use of civil force). See n.73. 93 Code of Criminal Procedure, Section 131 (Power of certain armed force officers to disperse assembly). See n.73. 94 Section 2(a) of the British India Armed Force Special Powers Ordinance, 1942 conferred powers to fire on officers not below the rank of captain in His Majesty’s Military Force. 95 The Indian Penal Code, Chapter VIII: Of Offences Against Public Tranquillity, Punishment. Whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term that may extend to six months, or with a fine, or with both. Para. 143. Available at: http://www.indianlawcds.com/Criminalbareacts/IPC_8.htm. Last accessed 23 June 2011. 96 All India Reporter 1961 Supreme Court 884 (A.I.R. 1961 SC 884). 97 The Constitution of India, Article 21. Available at: http://lawmin.nic.in/coi/coiason29july08.pdf. Last accessed 23 June 2011. 98 UN Doc. Consideration of the initial report of India (CCPR/C/10/Add.8) at its 493rd, 494th and 498th meetings held on 28 and 30 Mar. 1984, CCPR/C/SR, 493. 99Ibid.

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Section 4(d) of the AFSPA allows the armed forced to ‘recover (…) any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that purpose use such force as may be necessary’. Meanwhile, Section 4(b) further provides that, if a member of the armed forces is ‘of the opinion that it is necessary to do so’, he may:

‘destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence.’100

Regarding the powers granted under Section 4(b) of the AFSPA, the Supreme Court ruled, in the NPMHR case, that:

‘Absconders wanted for an offence are persons who are evading the legal process. In view of their past activities the possibility of their repeating such activities cannot be excluded and the conferment of the power to destroy the structure utilised as a hideout by such absconders in order to control such activities cannot be ruled to be arbitrary or unreasonable’101

When tackling isolated hideouts or training camps in uninhabited places, these actions can be defended as proportionate, but the same may not be the case in an urban scenario. The operations of the armed forces in the northeast primarily occur in built up areas and, more often than not, armed groups operating in these areas take shelter or hide in (or even fight from within) houses, schools and public places, sometimes in connivance with, and sometimes against the wishes of, the local population. In fact, this modus operandi is an important tactic for armed groups; not only is it easy for armed groups to mix with the local population, but civilians serve as perfect human shields. Moreover, such settings provide greater sustainability to operations. Thus, destroying civilian property in the thick of an encounter between the armed forces and an armed group may well be disproportionate; it is certainly so when based on mere suspicion. Even in customary law, such destruction weighs against military necessity and proportionality and care is expected to be taken to spare the civilian population102 and civilian property.103 Furthermore, if an attack is expected to cause incidental loss of either civilian life or civilian objects when the attack could be considered excessive in relation to the concrete and direct military advantage anticipated, the attack must not be carried out.104

3.4 Deprivation of Liberty: The Power to Arrest without a Warrant

Section 4(c) of the AFSPA confers not only the power to ‘arrest, without warrant, any person who has committed (…) or against whom a reasonable suspicion exists that he has committed or is about to commit’ an offence, but also to ‘use such force as may be necessary to effect the arrest.’105 Under the AFSPA, the armed forces are often involved in active combat operations in urban settings: patrolling, raiding hideouts, and conducting searches. Not only is intelligence gathering extremely limited, but armed groups enjoy the advantage of being able to mix with the local population and strike at will. Therefore, when they strike from built up areas or villages, the population en mass comes under suspicion. Under these circumstances, ‘reasonable suspicion’ and the likelihood of committing an offence may have an extremely low threshold. The habeas

100 See n.1. 101 NPMHR Case, A.I.R. 1998 102 ICRC Doc. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 50(1)-(2). 103 ICRC Doc. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 52(1) and 57(1). 104 A. P. V. Rogers, Law on the Battlefield (Manchester: Manchester University Press, 2004), at 57. 105 See n.1.

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corpus case of Luithukla v. Rishang Keishing106 sought to ascertain the whereabouts of a man who had been arrested five years previously by the army. The Court found that the man had been detained by the army, mistakenly viewing the arrest as necessary to aid the local civil powers. As preventive detention under the clause ‘acts prejudicial to the maintenance of public order’107 have been broadly interpreted, the power to arrest without warrant increases both the ease and, often, the arbitrariness arrests;108 indeed, it has been argued that nearly 60 per cent of arrests in India are unnecessary or unjustified109 and that ‘the majority can be described as unreasonable, unforeseeable and disproportionate.’110

The armed forces are not obliged to communicate the grounds for making arrests. The only protection provided is that the suspect be handed over ‘to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.’ The AFSPA provides no definition of what constitutes ‘the least possible delay’ and it is usually interpreted as depending on the specific circumstances of each case.111 For instance, in the case of NPMHR, the Court did not explore the issue of reasonableness of the arrest but did require that the individual arrested be handed over within twenty-four hours as, in the northeast, it often takes at least twenty-four hours for the armed forces to travel from operation sites to the nearest police station. This implies that the law in itself creates the conditions under which the armed forces, acting in aid of civil authorities, may detain individuals in army camps before handing them over to the police. It would be in the interests of justice that the armed forces immediately hand over persons who have been arrested to the police representative accompanying them to operation sites. If however, a police representative does not accompany the armed forces, it would be better for the requirements of the CrPC to be applied and thus, for the armed forces to be obligated to hand over detainees to the police within six to eight hours, in recognition of the fact that the risk of abuse is

106 Guahati Law Review 159 (1988). 107 In the case of Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, Commissioner of Police and Others (1995(3) SCC 237), the Supreme Court suggested that ‘only activities beyond the regulatory capacity of the ordinary criminal law could constitute threats to the maintenance of ‘public order’ or ‘national security’.’ However, in the case of Amanulla Khan Kudratalla v. State of Gujarat (1999 S.O.L. Case No.376, 4), the court reasoned that that, ‘any act ‘prejudicial to the maintenance of public order’ is beyond the regulatory capacity of the ordinary law.’ 108 For example, courts have upheld detention orders based on the contention that the detainee had committed robbery (Gora v. State of West Bengal, A.I.R. 1975 S.C. 473), associated with a ‘notorious gang of dacoits’ (Gora v. State of West Bengal, A.I.R. 1975 S.C. 473), brandished and fired a weapon in a public place, hurled stones at the car of a political opponent (Kali Charan Mal v. State of West Bengal, A.I.R. 1975 S.C. 999.), set fire to a school building (Babul Mitra v. State of West Bengal, A.I.R. 1973 S.C. 197), threatened violence to coerce a contractor to provide him with employment (Babul Mitra v. State of West Bengal, A.I.R. 1973 S.C. 197) and fired at police officers (Kanu Biswas v. State of West Bengal, A.I.R. 1972 S.C. 1656; Suresh Jaiswal v. Dist. Magistrate of Lucknow, 1986 A. Cr. R. 591, 594.). See also Derek P. Jinks ‘The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India’ 22 Michigan Journal of International Law, at 330. 109 Inter-American Court of Human Rights (I-A Court of HR), Gangaram Panday Case v. Suriname, judgment of January 21, 1994, in OAS doc. OAS/Ser.L/V/III.31, doc. 9, Annual Report of the Inter-American Court of Human Rights 1994, at 32, para. 47. Extract taken from UN Doc. Office of the High Commissioner for Human Rights, Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Available at: http://www.ohchr.org/Documents/Publications/training9chapter5en.pdf. Last accessed 23 June 2011. 110 Ibid. 111 http://www.hrw.org/en/node/75175/section/7#_ftn204.

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particularly acute in the initial stages of deprivation of liberty.112 For instance, torture and ill-treatment aimed at gaining information to avert a ‘ticking time bomb situation’ (and thus, defended on the grounds that interrogators are acting in the interest of the wider population),113 or at obtaining a confession or other evidence that would prove the reasonableness of the arrest, are most likely to occur at the start of detention.114

Providing officers of the state with powers to arrest without warrant is common practice in much anti-terrorism legislation around the world as it is seen as a cornerstone of preventive approaches to combating terrorism. In Canada, Subsection 83.3(4) of the Criminal Code allows a peace officer to arrest persons without a warrant under exceptional circumstances in which it is believed that a terrorist act is about to occur (i.e. that an attack is imminent) and thus, it is impractical to take the time to obtain a warrant.115 Similarly, under Sections 24 and 25 of the United Kingdom’s Police and Criminal Evidence Act 1984, the police are able to arrest a person without warrant if they have reasonable grounds for suspecting that he has committed, or is about to commit, an offence (even not related to terrorism); moreover, Section 41 of the United Kingdom’s Terrorism Act 2000 enables a constable to arrest without warrant a person whom he reasonably suspects of ‘being a terrorist’.116 Even the ICCPR (Article 9(1)) allows derogation under circumstances of threats to public security and when the procedure is established by law.117 Similarly, Article 5(1)(c) of the European Convention on Human Rights establishes that making an arrest without a warrant should either be ‘reasonably considered necessary to prevent his [the arrested person] committing an offence or fleeing after having done so’ or there should be ‘reasonable suspicion’ that the person has already committed an offence. Section 42 of the CrPC includes similar provisions. Thus, all these documents share a requirement of ‘reasonableness’ to protect against arbitrariness, which is incompatible with the principles of justice and the dignity of the human person.118

112 Blaauw et al., ‘Prevention of suicides in the Dutch CJS’ in A. Liebling (ed.), Deaths of offenders: the hidden

side of justice, (Winchester: Waterside Press, 1998), at 201-23. 113 The standard examples concern ‘ticking bomb in a mall’ scenarios or cases involving kidnapping. For instance, in Sept. 2002, the German police arrested a man suspected of kidnapping 11-year-old Jakob von Metzler when the suspect arrived to collect the ransom. After being threatened with torture by the police, the kidnapper revealed the location of Jakob’s body. http://www.pbs.org/wgbh/pages/frontline/torture/justify/ (5 Dec. 2005). 114 Submission to the International Covenant on Civil and Political Rights Human Rights Committee: Armed Forces (Special Powers) Act 1958. A Report on Human Rights Violations in Northeast India [New York, Mar. (1991)]. A Supreme Court Advocate, Nandita Haksar recorded the use of torture by armed forces and police in the northeast (1984), including ‘beating with rifle butts, kicking with boots and hitting with blunt weapons’, ‘giving electric shocks’, ‘depriving persons of food and drink and beating on [the] soles of the feet’, and ‘threat[ening] to shoot [detainees and conducting] interrogation[s] with [a] gun pointed at [the detainee’s] forehead or inside the mouth.’ 115 http://ww2.psepc-sppcc.gc.ca/publications/national_security/ARC36_2003_e.asp#2 (14 Nov. 2005). 116 http://www.parliament.uk/commons/lib/research/rp2005/rp05-066.pdf (14 Nov. 2005). 117 ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.’ See also General Comment No.8: Article 9 (Right to liberty and security of persons), para. 4. Available at:

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument. Last accessed 26 May 2011. 118 The drafting of Art. 9 of the ICCPR suggests that the word ‘arbitrary’ was understood to mean ‘unjust’ or incompatible with the principles of justice or with dignity of the human person. UN Doc. A/2929, Chapter VI, Sections 29, 30, 31; A/4045, Section 49. See also Nihal, The Judicial Application of Human Rights Law, at 377. See n.53.

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The right to liberty under Article 9 of the ICCPR is not an absolute right. However, paragraph one provides a substantive guarantee that arrest or detention will not be arbitrary or unlawful, while paragraphs two to five provide the procedural guarantees. Elaborating on the Article, the HRC have highlighted that even if ‘preventive detention is used for reasons of public security it must be controlled by these same provisions’.119 Other international instruments also provide guarantees regarding the right to liberty, including Article 5 of the European Convention on Human Rights, which specifies the circumstances in an individual can be deprived of his/her liberty. The American Convention on Human Rights (Article 7) and the African Charter on Human and Peoples’ Rights (Article 6) also contain similar provisions.

3.5 The Right to Effective Remedy

Section 6 of the AFSPA renders the armed forces all but immune to prosecution:

‘No persecution, 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’.120

Similar discretionary powers are included in Section 179 of the CrPC121 in respect to public servants ‘acting or purporting to act in the discharge of official duty’. The Supreme Court in the NPMHR case held that there was no merit in challenging the validity of the Section 6 of the AFSPA because it cannot be regarded as granting impunity to the armed forces; it only provides protection. If a complaint about the abuse or misuse of powers conferred under the AFSPA is lodged, a thorough inquiry is carried out. If the allegations are found to be correct, the victim will be compensated and necessary sanction for prosecution granted.

Punishing the guilty is the key to the maintenance of the rule of law. Thus, the procedural impediment to prosecute gives rise to a failure on the part of the state to ensure the enjoyment of the right to effective remedy against any violation of a constitutional right.122 Addressing state Party obligations under article 2(3) of the ICCPR, the HRC has noted that the use of the word ‘purported’ in Section 6 of the AFSPA is dangerous ‘when one is dealing with the right to life’ as it can be ‘used in order to destroy fundamental rights with impunity except at the good pleasure of the central government.’123 All a member of the armed forces has to do, under the AFSPA, to

119 UN Doc. Office of the High Commissioner for Human Rights, General Comment No.8: Right to liberty and security of persons. Art. 9: 06/30/1982, CCPR General Comment No.8. (General Comments) (16th Sess. 1982), para. 4. Available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument. Last accessed 24 June 2011. 120 See n.1. 121 ‘When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such [a] thing has been done or such [a] consequence has ensued.’ See n.73. 122 Indian Constitution, Part III. Fundamental Rights, Art. 32. Remedies for enforcement of rights

conferred by this Part. Available at: http://lawmin.nic.in/coi/coiason29july08.pdf. Last accessed 21 June

2011. 123 UN Doc. CCPR/C/SR.1042, para. 16. ‘Examination of India’s Second Periodic Report to the Human Rights Committee on 26-Mar-91’. Mr Lallah comments on Section 6 of the AFSPA ‘In the section which gives immunity both from prosecution and from civil process I find a very dangerous word here. It says 'no prosecution, suit, [etc.] 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'. Purported is the dangerous thing because anyone killing anybody can say 'Well I thought I was performing my functions'. It is a highly dangerous one [word] when one is dealing with the right to life. I sincerely hope, Attorney General, that

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defend an extrajudicial killing is to claim that he thought he was performing his duty. Moreover, the fact that a complaint has to be lodged before an investigation can proceed, and only then can the Central Government consider whether to grant permission for prosecution, means that those ‘who out of fear, illiteracy, and poverty, the fear of further abuses or reprisals, do not have the capacity or the will to complain’ are excluded from the possibility of remedy. It is rare for complaints proportionate to alleged abuses to be made as protracted deployment, over the past several decades, have made the armed forces a near permanent presence. Impunity further prevails since the National Human Rights Commission of India and the State Commissions of the respective States in the country do not have the powers to conduct investigations under Article 19 of the Protection of Human Rights Act 1993.124

The obligation to interpret treaties in good faith is emphasised in Article 2(3) of the ICCPR, which obligates States to respect’ and to ‘ensure’ the enjoyment of the rights set out in the ICCPR. Thus, State parties have a duty ‘to prevent violations, to investigate violations, to take appropriate action against the violators, and to afford remedies and reparation to victims.’125 Article 2(3) of the ICCPR also obligates States to ensure that persons accused of violations are not immune from legal responsibility;126 moreover, any failure to investigate allegations comprises a violation. Similarly, paragraph seven of the UN Code of Conduct for Law Enforcement Officials obligates States to ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under the law. The phrase ‘Those found guilty should be held responsible’ in the first General Comment on Article 7, read together with Article 2, implies a duty to establish legal or disciplinary, albeit not necessarily criminal, liability for violations of Article 7.127 As the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions stated in her report to the 57th Session of the UN Commission on Human Rights:

‘Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity.’128

you will bring this to the attention of the government. True, there are disturbed areas but people also live in disturbed areas and not everyone causes disturbance in a disturbed area. This is like a hammer which can be used or purported to be used in order to destroy fundamental rights with impunity except at the good pleasure of the central government. This is a very, very serious matter.’ Also see Amnesty International report, India: ‘Examination of second periodic report by the Human Rights Committee: recommendations to bring Indian laws and practices in line with international human rights standards’ (ASA 20/005/1993. 1 Mar. 1993). 124 See India National Human Rights Commission, Human Rights Act 1993. Available at: http://nhrc.nic.in/hract.htm. Last accessed 23 June 2011. 125 UN Doc. The Office of the United Nations Commissioner for Human Rights, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Adopted and proclaimed by UNGA res. 60/147 of 16 Dec. 2005. Also see ‘Question Of The Human Rights Of All Persons Subjected To Any Form Of Detention Or Imprisonment’ E/CN.4/1997/104. Note prepared by the former Special Rapporteur of the Sub Commission Mr Theo van Boven, in accordance with para. 2 of SubCommission Resolution 1996/28, at 3. Also see General Comment No.31: ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, adopted during the 18th Sess., 29 Mar. 2004, 2,187th meeting, paras. 15-18. 126 UN Doc. General Comment No.31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. Adopted during the 18th Sess., 29 Mar. 2004 at its 2,187th meeting, para. 18. 127 N. S. Rodley, The Treatment of Prisoners (1999) at 111. See n.78. 128 UN Doc. E/CN.4/2001/9 and Corr.1.

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The obligation to punish violators includes a duty to attempt to prevent future violations and to address violations that have been brought to the notice of the State even if no formal complaint has been lodged.129 Although India is only a signatory to the UNCAT, these provisions run in spirit through Article 7 of the ICCPR, under which the right to effective remedy implies the identification and punishment of those responsible.130 Therefore the HRC, referring to the AFSPA, noted with concern that the provisions of Section 6 contribute ‘to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with Article 2, paragraph 3, of the Covenant’.131

4. The AFSPA and Article 4 of the ICCPR

The question of whether the AFSPA requires a declaration of emergency under Article 352 of the Indian Constitution and, under Article 4 of the ICCPR, whether it must notify all the treaty’s State parties (via the UN Secretary General) ‘of the provisions from which it has derogated’ came under scrutiny during the examination of India’s second periodic report to the HRC, as well as during the NPMHR case. India argued that, since the AFSPA had not been applied throughout the country, the Government is not obliged to make a formal derogation.132 Moreover, since the situations in which the AFSPA is invoked do not constitute an armed rebellion and thus, no threat to the security of the country or part thereof is posed, the Government is not obligated to issue a formal proclamation of emergency under Article 352 of the Indian Constitution. However, the HRC has disputed this argument on the basis that the State is effectively using emergency powers without resorting to Article 4 of the ICCPR.133 Moreover, the phrase ‘Public emergency threatening the life of the nation’ is intended to prevent the abuse of provisions concerning derogation of rights, so States are required to list the specific circumstances justifying derogation: ‘Two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency.’134 Moreover, the General Comment on Article 4 of the ICCPR requires that ‘States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’.135

4.1 The Concept of Emergency under Article 4 of the ICCPR

129 UN Doc. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted and opened for signature, ratification and accession by UNGA res. 39/46 of 10 Dec. 1984. Entry into force 26 June 1987, Article 1(1). 130 Aksoy v. Turkey (100/1995/606/694), para. 98. 131 UN Doc. CCPR A/39/40 (1984), India - Concluding observations adopted up to Dec. 31, 2003, para. 436. Available at: http://www.bayefsky.com/pdf/india_t4_ccpr.pdf. Last accessed 23 June 2011. 132 UN Doc CCPR/C/76/Add. 6, para. 50. This was in response to the HRC question during the examination of India’s second periodic report as to whether the special laws met with the test of ‘strict requirement’ laid down in art. 4 of the ICCPR (UN Doc.CCPR /C/SR/1042). 133 http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En?Opendocument (12 Aug. 2005). NGOs such as the South Asia Human Rights Documentation Centre, in its written statement to the Commission on Human Rights, also referred to the situation in Northeast India under the AFSPA as an undeclared emergency. See ‘Civil and Political Rights, Including the Questions of: States of Emergency’, 24 Jan. 2002, 58th Sess. of the Commission on Human Rights, E/CN.4/2002/NGO/38. 134 ICCPR General Comment 29, UN Doc. HRI/GEN/1/Rev.6, 2003, para. 3. 135 ICCPR General Comment 29, para. 3. Also see n.128.

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An emergency is defined as ‘an unforeseen combination of circumstances or the resulting state that calls for immediate action’.136 ‘Immediate action’ in this context involves the invocation of the ‘national security doctrine’,137 under which the affected state imposes a state of emergency when exigencies threaten the life of the nation;138 this allows the state to temporarily suspend certain of its human rights obligations provided that any derogation is only ‘to the extent strictly required by the exigencies of the situation’139 with respect to ‘the duration, geographical coverage and material scope of the state of emergency’.140 Thus, the term ‘public emergency’ in Article 4 of the ICCPR embraces a range of situations (including those involving states of emergency, catastrophes, internal wars, national defence, national necessity, military regimes, martial law and so forth);141 these situations are considered to ‘constitute exceptional circumstances’ resulting ‘from temporary factors of a generally political character which[,] in varying degrees involve extreme and imminent danger, threatening the organised existence of a nation’.142 The invocation of provisions available under situations of public emergency requires states to formally declare a state of emergency and also to notify the prescribed authority.143 For instance, the Commission in the Cyprus v. Turkey case 144 held that a formal and public act of derogation was essential for application of Article 15 of the European Convention of Human Rights.145 Moreover, the state is obliged to justify both the exceptional nature of the threat and whether the measure is ‘necessary and legitimate’146 (a consideration that

136 http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=emergency (15 Sept. 2005). 137 ‘The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency’, 10th Annual Report by Mr Leandro Despouy, Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37, para. 4. E/CN.4/Sub.2/1997/19, 23 June 1997. 138 ICCPR, Art. 4(1). See n.4. 139 UN Doc. CCPR General Comment No.29, States of Emergency, (Art. 4) adopted at the 1,950th meeting, on 24 July 2001 (CCPR/C/21/Rev.1/Add. 11 31 Aug. 2001), para. 4. 140 Ibid. 141 Venkat Iyer, States of Emergency: The Indian Experience (2000), at 4. 142 UN Doc. Economic and Social Council, Question of the Human Rights of Persons Subjected to any Forms of Detention or Imprisonment, Study of the implications for human rights of recent developments concerning situations as states of siege or emergency, n. Questiaux, (e/cn. 4/sub. 2/1982/15, 27 July 1982), para. 23. Available at: http://www1.umn.edu/humanrts//Implications%20for%20human%20rights%20siege%20or%20emergency_Questiaux.pdf. Last accessed 23 June 2011. Also see Iyer, States of Emergency, at 4, fn.135. 143 Derogations under Art. 4 of the ICCPR require notification of the UN Secretary General. Derogations under Art. 15 of the European Convention on Human Rights (ECHR) or Art. 27 of the American Convention on Human Rights (ACHR) require notification of, respectively, the Secretary Generals of the Council of Europe and of the Organisation of American States. 144 ECHR Application Nos. 6780/74 and 6950/75. 145 EU Doc. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No.11 and No.14, Rome 4.XI.1950. Art. 15. Derogation in time of emergency in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. No derogation from Art. 2, except in respect of deaths resulting from lawful acts of war, or from Arts. 3, 4 (para. 1) and 7 shall be made under this provision. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures that it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed. 146 UN Doc. CCPR General Comment No.29, States of Emergency, (Art. 4) adopted at the 1,950th meeting, 24 July 2001 (CCPR/C/21/Rev.1/Add. 11 31 Aug. 2001), para. 3.

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should encompass proportionality).147 The state must also demonstrate that there is no derogation of core rights148 and that there are reasonable guarantees.

The Siracusa Principle 39149 requires that the whole population must be affected by the situation for a state of emergency to be declared, while the European Court of Human Rights, drawing on the ‘Paris Minimum Standards’150 in the Lawless case,151 requires that the crisis or danger be ‘exceptional’ and ‘imminent’, that it must affect the ‘whole population’ (or one section of the community)152 and that it must constitute ‘a threat to the organised life of the community’. However, although the HRC has not defined what is meant by the term ‘public emergency threatening the life of the nation’, it has judged the proclamation of emergency in certain situations to be unjustified; for instance, Argentina153 was questioned with regard to a declaration of emergency based on mere probability of internal disturbances, while the UK154 was asked about the territorial application of emergency measures with respect to Northern Ireland. Similarly Bolivia’s declaration on the grounds of serious political and social disturbances was judged not to fulfil the conditions for proclamation.155 Furthermore, with regard to Chile, the HRC stated that ‘latent subversion’ was insufficient reason for derogation156 and with regard to Cameroon, that the high crime rate alone did not warrant a proclamation of emergency.157

The Inter-American Court and Commission on Human Rights have not yet had to interpret these terms but have made general statements in their advisory opinion on the conditions justifying the suspension of rights and freedoms under the Convention. In Habeas Corpus in an Emergency Situation, the Court held that the ‘suspension of guarantees lacks all legitimacy whenever it is resorted to for the purposes of undermining the

147 Ibid. at para. 4. 148 The core rights include the right to life (Art. 6), the prohibition of torture or cruel, inhuman or degrading punishment, the prohibition of medical or scientific experimentation without consent (Art. 7), the prohibition of slavery, slave-trade and servitude (Art. 8, paras. 1-2), the prohibition of imprisonment because of inability to fulfil a contractual obligation, the principle of legality in the field of criminal law (Art. 11), the recognition of everyone as a person before the law (Art. 16), and the freedom of thought,

conscience and religion (Art. 18). 149 UN Doc. Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984), part II. Derogations in a Public Emergency, A. ‘Public Emergency which Threatens the Life of the Nation’, Principle 39. Available at: http://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/SiracusaPrinciples.pdf. Last accessed 23 June 2011. 150 Paris Minimum Standards of Human Rights Norms in a State of Emergency, adopted by the International Law association in 1984. See 79 AJIL 1072 (1985). See also International Covenant on Civil and Political Rights Commentary by Manfred Nowak, 1993. 151 Lawless Judgement, Series A, No.3 of the European Court of Human Rights (ECHR). The case concerned a state of emergency declared on 5 July 1957 by the UK under Art. 15 of the European Convention Protection of Human Rights and Fundamental Freedoms Convention. The derogation was a response to the impending release of almost 100 IRA prisoners; this had led the Irish Government to fear an intensification of IRA terrorist activities. See Claire Macken, ‘Terrorism as a State of Emergency in International Law’, ANZSIL 2005 Conference, 16-18 June 2005, Canberra, at 4. 152 Ireland v United Kingdom (1978) 2 EHRR 25, para. 207. 153 UN Doc. GAOR, A/45/40, Report HRC, at 49-50. 154 Ibid. at 32. 155 UN Doc. GAOR, A/44/40, Report HRC, at 95. 156 Ibid. at 18. 157 Ibid. at 103.

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democratic system’.158 However, in examining the report of Nicaragua, the Commission stated that ‘the on-going penetration of these armed groups (former members of National Guards) into Nicaraguan territory demonstrates that there was a real and imminent threat to the security of the State’, providing useful case law for examining claims for derogation by other States.159

4.2 Proclamation of Emergency under the Indian Constitution versus the AFSPA

Emergency provisions are mentioned under Articles 352 and 356 of the Indian Constitution. Both articles can be invoked by the President when exercising the executive powers of the Union of India, subject to such actions being approved by both Houses of Parliament. There have been three formal invocations of emergency provisions under the Indian Constitution: Two on the grounds of external aggression (in 1962 and 1971), and one on the grounds of internal disturbance (in 1975). These emergencies were invoked under the powers in Articles 352-4 and 358-9 of the Indian Constitution relating to emergencies that threaten the life of the nation either as a result of war or external aggression or internal disturbance/armed rebellion.160

Following the wide abuse of powers in 1975, Parliament enacted the forty-fourth Amendment,161 which gave shape to the present emergency provision. Under the amendment, a declaration of emergency is only possible in the event of war, external aggression and ‘armed rebellion’.162 It requires the Prime Minister’s advice to the President accompanied by a decision, in writing, from the Union Cabinet163 that will automatically cease to operate on the expiry of one month, unless the decision is specifically approved by resolutions in both Houses of Parliament.164 Passing these resolutions requires that at least half the membership of each house vote in favour and that at least two-thirds of be present and vote.165 Moreover, the amendment provides that unless an emergency is re-approved every six months, it will cease to operate.166

India maintains that no emergency situation exists, but acknowledges that legislative measures like the AFSPA have been ‘enacted to meet certain special situations such as organised forms of terrorism, insurgency and acute law and order situations and are subject to adequate safeguards to ensure against violation of human rights.’167

158 Advisory Opinion OC-8/87, Series A, No. 8, at 38. 159 Inter-American Commission on Human Rights, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OAS Ser. L/V/II/62, doc. 10, rev. 113, 29 Nov.1983. 160 Iyer, States of Emergency (2000). See n.135. 161 The Constitution (44th) Amendment Act 1978. Most of the provisions entered into force on 29 June 1979, coinciding exactly with the entry into force of the ICCPR. Both these measures were intended to present a more robust model aimed at preventing the abuse of emergency powers. As a result, the State witnessed a complete overhaul of its post-1979 emergency provisions. 162 Art. 352(1). The phrase ‘armed rebellion’ was substituted for ‘internal disturbance’. 163 Art. 352(3). Previously, the Prime Minister could advise the President to declare an emergency on his/her sole authority. 164 Art. 352(4). This period previously comprised two months. 165 Art. 352(6). Previously, the majority prescribed had been a simple majority of the membership of each

house. 166 Art. 352(5). Also see Iyer, States of Emergency (2000), at 201 (See fn.135). The 44th Amendment came into force on 29 June 1979, coinciding with the coming into force of the ICCPR on 10 July 1979. Both these measures were intended to present a more robust model aiming to prevent the abuse of emergency powers. As a result, the State witnessed a complete overhaul of the post-1979 emergency provisions. 167 CCPR/C/37/Add. 13, para. 57 of India’s second periodic report under Art. 40 of the ICCPR and CCPR/C/76/Add. 6, the third periodic report, para. 37. ‘These Armed Forces (Special Powers) Act and the Terrorist and Disruptive Security (Amendment) Act legislative measures have been enacted to meet

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However, the HRC has noted that the AFSPA has been applied throughout Manipur since 1980 and, in some areas of that state, for much longer; in these areas, India is, in effect, using emergency powers.168 On the other hand, the Supreme Court ruled, in the NPMHR case, that the State is only acting under its obligations under Article 355 of the Indian Constitution to protect every State within the country against external aggression and internal disturbance. Moreover, the Court stated that if a disturbance is of insufficient magnitude to pose a threat to the security of the country or a part thereof, then there is no requirement to declare a state of emergency even if the situation arises from an armed rebellion. Indeed, the Court also noted that there was no material on record to show that the disturbed conditions in the States in which the AFSPA has been invoked were due to armed rebellion. Thus, while India maintains that the AFSPA does not supplant civil powers, these powers have been, de facto, institutionalised within the system, sacrificing individual guarantees and side lining the country’s obligation to restoring normalcy. Increasing the geographical base of the AFSPA has only increased the scope of application in the disturbed areas.

4.3 Counter-Terrorism and the AFSPA: Concluding Statements

The European Court of Human Rights in the Lawless case169 upheld Ireland’s declaration of a state of emergency, considering it justified by the existence of a combination of factors including (i) use of violence by the Irish Republican Army (IRA) to attain its purpose, (ii) the fact that IRA operations outside the country were jeopardising Ireland’s relationship with other countries, and (iii) the steady increase in terrorist activities.

Thirteen armed groups in northeast India have been declared ‘unlawful associations’ under the Unlawful Activities (Prevention) Act 1967 (Act 37 of 1967). The National Socialist Council of Nagaland (Isak/Muivah) was also declared to be unlawful, but the ban was allowed to expire on 26 November 2002 to facilitate the on-going peace talks that began on 1 August 1997. Similarly, ceasefire with the National Socialist Council of Nagaland (Kaplang) was declared on 28 April 2001; talks are continuing. However, according to the South Asia Terrorism Portal, numerous other militant groups (such as the People’s Liberation Front of Meghalaya, the Kuki National Army, the Bru National Liberation Front, and the Zomi Revolutionary Army) continue to operate in the region.170 Assam alone has thirty-six active armed groups, while Manipur has thirty-nine, Meghlaya has four, Nagaland has three and Tripura has thirty.171 As discussed above, all desire secession of their regions; indeed, many (including the Revolutionary People’s Front in Manipur) consider that they are suffering illegal occupation by the State of India.172 For instance, the National Socialist Council of Nagaland refers to its activities as

certain special situations such as organised forms of terrorism and insurgency and are subject to adequate safeguards to ensure against violation of human rights.’ 168 http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En?Opendocument (12 Aug. 2005). 169 Lawless v. Ireland, ECHR (Lawless Case), Series B 1960-1961 (No.1) 332/57. See also http://ius-software.si/EUII/EUCHR/dokumenti/1961/07/CASE_OF_LAWLESS_v._IRELAND_9No._3)_01_07_1961.html 170 See Annual Report of India 2004-05 to 2009-10. Available at: http://mha.nic.in/AR2004-2005/AR04-05Eng.pdf. 171 India: India - Terrorist, insurgent and extremist groups. Available at :

http://www.satp.org/satporgtp/countries/india/terroristoutfits/index.html. Last accessed 23 June 2011. 172 Memorandum Submitted to the Secretary General United Nations and the Chairman of the Decolonisation Committee (Committee of 24) for De-Colonisation of Manipur from Indian Colonialism and Alien Racist Regime, Enlisting Manipur in the List of the Non-Self-Governing-Territories of the United Nations and, Restoration of Independence and Sovereignty of Manipur Revolutionary People's

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constituting a struggle for self-determination against colonisation in the region, arguing that it is neither a question of separation nor secession from India because Nagalim 173 never was part of India; thus, the group has boycotted general elections, denouncing the authority of the state.174

Many of these groups have sophisticated weapons and armaments, including AK 47s, machine guns, rocket launchers, and large quantities of explosives. Therefore, they have been able to launch large-scale activities like ambushes, attacks on well-fortified military and civil installations, extortions, and kidnappings, as well as levying illegal taxes. The capacity of armed groups to cause damage to life and property is extremely high and their actions pose a significant threat to the sovereignty and integrity of the nation. In 2003 and 2004, there were, respectively, 1,332 and 1,076 terrorism-related incidents of violence.175 In one of the most appalling incidents, the United Liberation Front of Asom (ULFA) set off a bomb in a school, killing thirteen children and injuring twenty-one persons during the 2004 Independence Day celebrations.176 In September 2005, the All Naga Students Association of Manipur imposed a fifty day ‘economic blockade’, demanding the integration of several districts of Manipur into ‘Greater Nagalim’ as part of their secessionist movement. The only good highway, NH 39, running from Guahati to Imphal was essentially taken over by militants and no trucks were allowed to pass; a few got through under armed escort, but most essential supplies had to be air-lifted into the affected areas by the Indian Air force.177 The sheer number of groups operating in the northeast, as well as their size and sophistication, substantiate the need for a declaration of a state of emergency. The State’s claim that the situation is an issue of public order, and the deployment of the armed forces merely in aid of civil powers, is manifestly unfounded as the armed groups in the disturbed areas have the capacity to launch sustained, well-coordinated attacks against the armed forces and the civilians at will; thus, the situation is more properly described as constituting armed resistance or an armed rebellion against the State, especially given that the primary motivation of these

Front. Para. 3. Available at: http://www.upr-info.org/IMG/pdf/COHR_IND_UPR_S1_2008anx_Annex_VI_Memorandum_of_Revolutionary_Peoples_Front_Manipur.pdf. Last accessed 23 June 2011. 173 Nagaland (Nagalim) is a nation occupying an area of 120,000 sq. km of the Patkai Range at the tri-junction of China, India and Burma. Nagalim was apportioned between India and Burma. The part that India claims is subdivided and placed under four different administrative units: Assam, Arunachal Pradesh, Manipur and Nagaland states. The eastern part claimed by Burma is placed under two administrative units: Kachin State and Sagaing Division (formerly known as the Naga Hills). The area inhabited by the Naga tribes is bound by the Hukawng Valley in the northeast, the plains of the Brahmaputra Valley in the northwest, Cachar in the southwest and the Chindwin River in the east. In the south, the Manipur Valley marks the point of contact between the Naga tribes and the Kuki tribes. Available at: http://www.nagalim.us/. Last accessed 23 June 2011. 174 http://www.nscnonline.org/nscn/index-2.html. See also the Memorandum to the UN Secretary General and The Chairman of the Decolonisation Committee on 21 Sept. 1999, available at: http://www.geocities.com/CapitolHill/Congress/4568/memorandum/index.html and http://www.satp.org/satporgtp/countries/india/states/tripura/terrorist_outfits/nlft.htm. 175 See Annual Report of India, Government of India Ministry of Home Affairs 2004-05, Annexure III, at 165. The reduction in the number of terrorist-related incidents in 2004 was primarily due to the peace process initiated by the Government with insurgent groups. See also Annual Report of India, Government of India Ministry of Home Affairs 2004-05, at 34. Available at: http://mha.nic.in/AR2004-2005/AR04-05Eng.pdf. 176 See Annual Report of India, Government of India Ministry of Home Affairs 2004-05, at 34. Available at: http://mha.nic.in/AR2004-2005/AR04-05Eng.pdf. 177 Sridhar K. Chari, ‘Manipur’s highways of conflict’ The Tribune. Available at: http://www.tribuneindia.com/2005/20050913/edit.htm#6.

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groups is the pursuit of independent statehood.178 The very fact that the provisions of the CrPC have not been invoked and instead, the armed forces have been deployed through the AFSPA, clearly indicates that the situation is above the threshold for an ‘internal disturbance’.

On the other hand, law enforcement agencies rarely encounter such sophisticated weaponry or planned military tactics in situations concerned with the maintenance of public order.179 In most public order situations, groups resort to the use of homemade weapons (e.g. ‘katttas’ or ‘tamanchas’), crude bombs, swords and spears. Moreover, the armed forces are able to take precautions that law enforcement agencies can rarely employ: For instance, the movement of armed forces troops and administrative columns is led by protection parties and their entire routes are sanitised Road opening parties secure entire communication links and search sensitive spots, as well as carrying out patrols and other operations. Despite the fact that the police have been armed with more sophisticated weapons, such as assault rifles, and better communication networks have been set up, they are not equipped to carry out the same functions as the armed forces.

The fact that armed groups have resorted to the guerrilla warfare tactics, exploiting the advantages of mixing with the local population to escape identification has resulted in civilians becoming targets of military operations. However, the armed groups themselves have also indiscriminately targeted civilians to show their strength to the Government and to induce fear in the civilian population. As each of the major armed groups have both political and military wings, especially as attacks are often random, led by decentralised organisations that desire to kill and maim as many people as possible.180 Thus, the Government’s responses can be seen as falling within the remit of counter-terrorism measures.

5. Conclusion

Decolonisation is closely linked to self-determination in many Third World States confronted with violence perpetrated by armed groups that desire secession for a region of an existing state. In these circumstances, states tend to advocate that localised conflicts are internal matters and, on this basis, have dealt with them by invoking special powers or by reinforcing domestic laws with special legislation without declaring a state of emergency. This approach also helps the States to face the challenges of asymmetric warfare and the complexity of intrastate conflict without any special invocation that invites international attention. States tend to employ special domestic legislation in such a way that they purposefully limit the international community’s capacity to intervene in relation to human rights abuses through privileging their right to sovereignty. The fact that the special legislation, in such cases, is usually enacted by a democratically elected parliament181 is used to argue that the rule of law and democratic governance are

178 Militants rule the roost: NE leaders tell Patil (11 Feb. 2005). Available at: http://www.theshillongtimes.com/A-11-feb.html (19 Dec 2005). 179 For instance, groups like the National Democratic Front of Bodoland (NDFB) and United Liberation Front of Assam (ULEF) have been using improvised explosive devices and landmines: Landmine Report

2004, available at: http://www.icbl.org/lm/ 180 S. Joseph, ‘Australian Counter-Terrorism Legislation and the International Human Rights Framework’ (2004) 27(2) UNSW Law Journal, at 428, 448. 181 Responding to the HRC’s question about its failure to comply with their ICCPR Art. 4 obligations in respect of special legislation like the AFSPA, India replied in its third periodic report, that ‘It may be emphasised that such statutes were enacted by a democratically elected Parliament, [and] their duration was

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prevailing. Keeping democracy at its show window, States vehemently insist that rights are internal matters and they have the margin of appreciation as a sovereign state to assess the threshold of the situation. Even if the special legislations have been imposed, such statutes have been enacted by a democratically elected parliament.182 This makes intervention by the international community particularly tricky to defend as interference in democratic states contradicts well-established principles of state sovereignty under Article 2(1) of the UN Charter.183 Thus, the UN Charter Article 2(7) protections, which limit the UN’s ability to intervene in matters under domestic jurisdiction, undermines Chapter VII, which allows for intervention. This contradiction renders it difficult to argue that democratic states forfeit their right to non-intervention due to either unlawful practices or an evident inability to protect human rights in deteriorating localised situations.184 Thus, India, Sri Lanka and Nepal all refer to the violence arising out of conflicts over self-determination for areas within their borders as issues of law and order rather than as armed conflicts.

The present conflicts in Kashmir and Northeast India are the result of the State’s attempts to integrate the local communities against their wishes; the majority aspire to self-determination and independent statehood post-decolonisation. Many local and regional communities in India feel threatened by what they view as an oppressive, dominant regime occupying their territory and infringing on their ethnic and tribal identity. While the affected states do not recognise secession as a viable means for the communities establishing themselves as legitimate, independent, democratic states, the Central Government maintains its own legitimacy based on the fact that it was democratically elected and, thus, all citizens with the vote had a choice in the matter.185 However, the right to secede from the State of India does not fit within this rubric.

subject to review’. UN Doc. CCPR/C/76/Add.6, para. 50. India further maintained that ‘since the initiation of terrorism in Jammu and Kashmir in 1989-90, the people of Jammu and Kashmir have voted in Parliamentary elections in 1996, 1998 and 2004, elections to the State Assembly in 1996 and 2002 and in Panchayat Elections in 2000, despite terrorist threats and calls for boycott of elections’. Ministry of Home

Affairs Report, Government of India, 2003-04, para. 3.3 at 10. 182 Responding to the HRC question on its failure to comply with the requirements under Art. 4 of the ICCPR in respect of the special legislations like the AFSPA, India replied in its third periodic report that, ‘It may be emphasised that such statutes were enacted by a democratically elected Parliament, their duration was subject to review’ UN Doc. CCPR/C/76/Add.6, para. 50. Also, India maintains that ‘since the initiation of terrorism in Jammu and Kashmir in 1989-90, the people of Jammu and Kashmir have voted in Parliamentary elections in 1996, 1998 and 2004, elections to the State Assembly in 1996 and 2002 and in Panchayat Elections in 2000 despite terrorist’s threats and calls for boycott of elections.’ See Ministry of Home Affairs Report, Government of India, 2003-04 para. 3.3 at 10. 183 The Constitution of India, Art. 2(1). Available at: http://lawmin.nic.in/coi/coiason29july08.pdf. Last accessed 23 June 2011. 184 A. Roderic, International conflict and the International Community: Wars without Ends (London: Ashgate Publishing Limited, 2004), at 91. 185 See for example, India’s report under Art. 40 of the ICCPR in reference to Art. 1 of the ICCPR where it states that the right does not extend to component parts or groups within independent sovereign States and that the internal aspects of self-determination includes the right of people to choose their own form of government and the right to democracy and they do not and cannot include the right of a fraction of the people to secede. The report further refers to the Vienna Declaration and Programme of Action of 1993 stating that the right of self-determination shall not be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states. UN Doc. India ‘State Party Report’, CCPR/C/76/Add. 6, 17 June 1996, para. 32. Available at: http://www.unhcr.org/refworld/docid/3ae6b02f3.html. Last Accessed 21 June 2011. Nepal similarly refers to self-determination as, ‘the immediate granting of this right to the people under the domain of colonialism.’ UN Doc. Nepal CCPR/C/74/Add. 2 (State Party report) 8 May 1994, para. 2. Sri Lanka also argues that the principle of self-determination cannot be construed as authorising any action

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Despite recourse to rhetoric about counter-terrorism, the Government of India continues to receive strong domestic and international criticism over the AFSPA. The inherent contradiction between democratic governance and special laws legitimising the use of a state’s armed forces against its own people raises serious concerns regarding the State’s capacity to tackle emerging civil unrest. India has justified the AFSPA as necessary to fight secessionist forces, despite the fact that it has not formally declared a state of emergency or invoked a public order measure.

The steady decrease in terrorism-related incidents in India has led to the ASPA being denounced in almost every public space, even those not associated with the situation. However, the State has not able to move away from its initial rationale for qualifying these areas as disturbed decades ago to consider a systematic repeal of the AFSPA in recognition of claims that the police do not need assistance any more to undertake domestic law enforcement activities.186 This has led to both political agitation and terrorist attacks from groups seeking to create socio-religious incidents in order to afford themselves a political platform; the common element, for all these groups, is the demand for revocation of the AFSPA and for secession.187

This State cannot justify the necessity for such a legislation meant for protecting innocent citizens requiring the suspension of rights. Even so, the protracted suspension of human rights and the abrogation of the fundamental laws by the armed forces place them, at times, outside the Constitution.188 The Act violates most of the non derogable rights guaranteed in the ICCPR. These include the right to life (Article 6), the right not to be subjected to cruel, inhuman or degrading treatment or punishment (Article 7) or to deprivation of liberty (Article 9), and the right to equality before the law (Article 14).

India has sought to exercise sovereign discretion to eliminate these movements through strong domestic legislations like the AFSPA. However the recent UN Security Resolution on 22 March 2012 against Sri Lanka calling for the State to investigate serious allegations of civilian casualties from the LTTE civil war has for the first time made headway into the ways and methods employed by the armed forces in democratic states to address localised situations where communities are fighting for secession though the right to self determination. India too is once again under international scrutiny with the UN calling for the repeal of the AFSPA after barely seven days of the UN resolution on Sri Lanka, citing that the Act has no role to play in democracy.189 This places the State in that ‘would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.’ See UN Doc. Sri Lanka CCPR/C/70/Add. 6, 27 Sept. 1994. 186 G. Sampath, ‘Kashmir police, not CRPF, should confront stone-pelting mobs,’ The Daily News and Analysis (DNA). Available at: http://www.dnaindia.com/opinion/interview_kashmir-police-not-crpf-should-confront-stone-pelting-mobs_1404969. Last accessed 21 Jan. 2011. 187 See for example, ‘Amarnath Land Row – Problem Intensifies and no Solution in Sight’ available at: http://www.zorsebol.com/latest-news/amarnath-land-row-problem-intensifies-and-no-solution-insight/ and ‘Dispatch from the Eurabian Front’ available at: http://www.brusselsjournal.com/node/554. Last accessed 20 Jan. 2011. 188 Inderjit Baruah v. State, AIR 1983 Del 513. 189 Christof Heyns, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions told reporters here at the end of his fact-finding mission that ‘The AFSPA in effect allows the state to override rights in the disturbed areas in a much [more] intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency’. See Aarti Dhar ‘UN asks India to repeal AFSPA’ The Hindu. Available at: www.thehindu.com/news/national/article3263687.ece

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a difficult position at a time when it is aggressively canvassing for a permanent seat in the UN Security Council.