Part IV of the Kashmir Series. To read the previous parts click, for Part I, Part II, Part III.
Posted on 17 December 2019, Rekha Oleschak-Pillai
Picture (c) Government of India, Post, 2017; Commemorative Stamp on the 1942 Quit India Movement.
A little bit of history
8th August 1942: From a public park in Bombay, Mahatma Gandhi issued his call for the Quit India Movement. He called upon the British to quit India, the Indian people to mobilise with a commitment to ‘Do or Die’ in order to achieve independence. In his speech Gandhi reiterated that the movement can only be based on “Ahimsa”, non-violence. In the following days and weeks, thousands of non-violent protestors would be arrested and put in jail. The police would disperse the masses by using tear gas as well as through brutal beatings. They also would resort to firing.
The British repressive operations were unleashed by using 57 army battalions. While the official death toll, mostly in Bihar and the Eastern United Provinces, stated that 1,060 demonstrators were killed (as opposed to 63 policemen and a small number of military personnel), unofficial estimates put the death toll much higher (1,761 for Bihar alone).
The Viceroy and Governor General of British India, Linlithgow would need more instruments to legalise the violence that was being unleashed. Why should one have the hassle of bringing criminal cases, when the easy way out would be to shoot to kill? The ordinance to confer special powers upon certain officers of the armed forces, the Armed Forces (Special Powers) Ordinance No. XLI would be passed the 15th of August 1942, exactly five years before India would become independent. The Ordinance gave the British forces in India, immediately, the power to use force if it “is in his opinion necessary for the proper performance of his duty”, not only to arrest people but also to kill.
According to Section 4 of the Ordinance, which is titled “Protection to Persons acting under this Ordinance, “No prosecution, suit or other legal proceedings for any order purporting to be made under this … shall be instituted in any court except with the previous sanction of the Central Government and notwithstanding anything contained in any other law for the time being in force, no person purporting in good faith to make such an order or to do any act in obedience thereto shall, whatever consequences, be liable therefor.”
The necessity of whether they should shoot to kill was solely to be based on the opinion of the officer in command or carrying out the operation.In other words, the Ordinance gave the British officers, the right to shoot to kill and let them get away with it.
A little bit of current affairs
Fast forward to 1990. The same Ordinance is transferred to a more specific destination, namely Kashmir. The piece of colonial legislation used to suppress dissent and democratic protests, giving a free rein to the use of arms and violence was being adjusted to the specific needs of the Indian armed forces carrying out their purportedly anti-insurgent movements in Kashmir. Thus, came into being the Armed Forces Special Powers Act (1990). It has been in operation for almost thirty years now.
Below I will examine just a few selected parts of the Act, to show how problematic it is. According to Section 4a of the Act, (in non-legal terms), an armed forces officer may, if he thinks it is necessary to keep order, not only fire to kill but also kill by other means. He need not give a warning, only if he considers it to be necessary!
Another problematic subsection is 4b, which allows the army officer to destroy a house or building, which again, in his opinion, could be used or is being used by terrorists or any absconders wanted for any offence. Now, for non-lawyers this might seem reasonable, yet there is a big catch here. The wording so wide open, that whatever house or building gets destroyed, no one is liable (financially) or other wise for that. So, let’s imagine, you live in a “disturbed area” according to this law. You have all your winter stock of food grains, livestock etc. stored in your house, the army officer can order the destruction, without actually having any evidence that this place has been used in preparation of committing an offence.
Section 4b is also extremely problematic as this allows arrests with the use of force based on suspicion. Section 4d, allows for search without warrant, section 4 e, allows the same for vehicles. In any of these situations, the use of force is considered either necessary or seen as collateral damage.
Section 5 allows any person (does not have to be army officer) carrying out searches under the law to break open any safe, cupboard, drawer etc. So here the threshold is even lower, there is no requirement to be actually a member of the armed forces. It suffices that any civilian who might be involved is allowed the right to carry on with impunity.
Section 7 provides immunity from prosecution for any person acting under the law. Basically, this means, that any action which the armed forces would like not to have enquired can be subsumed under this law and would therefore not be entertained in a court of law. In short, it provides for total immunity.
While the Supreme Court has criticized the use of the AFSPA in several decisions, and has explicitly called it “bad law”, there seems to be no political move or will towards removing this law from the books.
The J.S. Verma Committee (2012) and the Justice Jeevan Reddy Committee (2005) have found the law arbitrary and have recommended its repeal. Irom Sharmila’s 5,574 days of fasting against the AFSPA in Manipur points to the utter impunity that the law entails with regards to violence against women. This was also pointed out by the Justice Verma Committee; that there are higher chances of women getting harassed and raped at the hands of Armed Forces in the disturbed areas.
How do we go forward?
I would like to reiterate a point that I made in an earlier part of this series, namely, that the Indian Armed Forces have always been subject to civilian authority. This piece of legislation removes them from the purview of the rule of law. Not only for the sake of upholding the constitutional values, democracy and freedoms, but also for the sake of the political balance of powers, it is absolutely necessary to remove this extremely disturbing piece of legislation.
The proportionality test in constitutional law requires, a measure to 1) be sanctioned by law; 2) be necessary in a democratic society for a legitimate aim; 3) the extent of such interference to be proportionate to the need for such interference; 4) have procedural guarantees against abuse of such interference. Measures under the AFSPA do fulfil the first requirement, namely that these are sanctioned by law, but fail with respect to the rest of the requirements.
Power corrupts and absolute powers corrupts absolutely. As history has shown, the powers conferred upon by the AFSPA have always been used in a manner that goes against the fundamental idea of accountability. The number of human rights violations in Kashmir by the armed forces have been discussed in the earlier posts, and it must be emphasised that if such immunity did not exist, a large number of these violations would not have taken place. Anyone arguing that this is an emergency legislation should realise that emergencies exist for short periods of time, with such a legislation, any emergency can last as long as the government wants. There is at least one whole generation in Kashmir that has lived their whole life under emergency.
It is upon the Government of India, its parliament and its courts to repeal the law or declare it unconstitutional and therefore null and void.
 Markovits Claude, India from 1900 to 1947, Online Encyclopedia of Mass Violence, [online], published on: 6 November, 2007, accessed 11/12/2019, http://bo-k2s.sciences-po.fr/mass-violence-war-massacre-resistance/en/document/india-1900-1947, ISSN 1961-9898
 The Armed Forces Special Powers Act, (AFSPA) 1958 was the first enactment of the colonial legislation in its present avatar.
 Before the enactment of the AFSP (Kashmir) Act, there was an Ordinance in place for a while.