Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Muskan Mumtaz
Muskan Mumtaz is a sophomore at University of Virginia.
Sameer Rah was eight years old when he was beaten to death by Indian soldiers in the disputed region of Kashmir. His killing came in the height of what is dubbed the “summer bloodbath,” during which the Indian army killed around 100 minors and injured another 500. The military targets teenage protestors as a way of discouraging the next generation of Kashmiris from engaging in civil unrest, and more importantly, from restarting the independence movement within Kashmir.
Of course, the Indian military cannot discharge or imprison every soldier that has a hand in killing a civilian. The entire purpose of these extrajudicial killings is to make known their military presence and suppress whatever strains of resistance emerge among the youth. To provide their soldiers impunity, the Indian government uses an old law known as the “Armed Forces Special Powers Act.” (Ironically, the British government used this same law on Gandhi’s independence movement).
Essentially, AFSPA encourages Indian soldiers to counter insurgency by ripping apart the social fabric of the separatist region through civilian killings, illegal detainment, mass rape, torture, solitary confinement, and various other forms of human rights violations. AFSPA gives soldiers complete and utter impunity on the field. The idea isn’t to simply cleanse the valley of Pakistani or ISI-funded militants, but to demoralize the entire community that supports these insurgents.
The act itself has four main provisions: (1) It allows the central government to declare an area as “disturbed,” (2) It allows non-commissioned officers to arrest and search without warrant, (3) It allows non-commissioned officers to shoot and kill anyone who they suspect is a “threat,” and (4) It allows non-commissioned officers to bomb houses and buildings and the inhabitants within them on “mere suspicion” of militant activity. V.R. Raghavan comments on the outcome of this law in Policy Choices in Internal Conflict, stating “Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government's judgment on why an area is found to be disturbed subject to judicial review.”
It should be noted that since its independence in 1947, India has faced several secessionist movements. The early government struggled to centralize such an ethnically, linguistically, and culturally diverse nation. Naturally, several politically marginalized groups sought to detach themselves from a domineering, intrusive central state. When this law was originally passed as a one-year emergency measure under the independent Indian government in 1958, only the state could declare itself “disturbed.” In 1972, this power shifted from the states into the hands of the central government, which later used it to declare Manipur and Kashmir disturbed. The central government was able to use Article 355 of the Indian Constitution to argue that it was not breaching international law, but simply protecting the states from internal disturbances by suppressing their secessionist movements. This attracted widespread domestic and international criticism regarding the increasingly authoritarian nature of India’s central government.
International criticism isn’t limited to the political leanings of the government, however. Drawing a parallel between AFSPA and international humanitarian law reveals deep flaws within the act. These flaws were highlighted by the U.N. Commission on Human Rights: “The suggestion that human rights violations are permissible in certain circumstances is wrong. The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter what the ends.”
By upholding complete unaccountability within its military, the Indian government violates public international law regarding war and human rights. In particular, it violates the Common Article 3 of the Geneva Convention, which forbids “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture [and] the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.” A U.N. official voiced the concerns of the international community, stating “AFSPA clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well.”
On a domestic level, the law has garnered disapproval for two reasons. First, the practical implications on the ground undermine the objectives of the law. Independent investigations have found that officers abuse this law to frame militant encounters and gain promotions. One instance occurred in Kashmir, where the military recruited local boys to serve as transporters, took them near the border, killed them, and then framed the boys as militants returning from training in Pakistan. The officers involved were promoted.
These sort of instances, which have also been reported in Manipur, demonstrate how the law is not only abused to get away war crimes, but also used as an illegitimate tool to further military careers. Notably, the Indian government amended the Unlawful Activities Prevention Act in 2004, a law that is now more than capable of enabling the government to address insurgency in a more humane method.
Second, the law goes against the spirit of democracy. It creates a vacuum of absolute lawlessness within the judicial system of the world’s largest democracy. The Asian Center for Human Rights highlights the undermining effect this has on India, stating that “the strength of any country claiming itself as ‘democratic’ lies in upholding the supremacy of the judiciary and primacy of the rule of law [and that] AFSPA violates basic tenets of criminal justice system in any civilized society.”
Surely, India will have to respond to domestic and international pressures to repeal what the U.N. has labelled a “draconian” law. As its trade relations with the United States strengthen and its tensions with Pakistan heighten, India will be placed under an international limelight for its continued use of an act that is completely incompatible with international humanitarian law to subdue insurgencies. Pakistan is already redirecting its military attention from Afghanistan back to Kashmir, and the potential for the insurgency to revive in the disputed valley is very real.
Will India uphold its commitment to democracy and human rights, or will it disregard international pressures and continue to use AFSPA to suppress militant strains? How India uses this law in this upcoming decade will define its image as a democracy that either is or is not committed to upholding accountability within its judicial system.
 Peer, Basharat. "An Eight-year-old Kashmiri Went out to Play. He Came Back Home Dead." The Guardian. Guardian News and Media, 23 Sept. 2010. Web. 03 Apr. 2014. <http://www.theguardian.com/commentisfree/2010/sep/22/kashmir-dead-hopes-of-2007>.
 UN Economic and Social Council, 58th Session. Commission on Human Rights and Follow Up to the World Conference on Human Rights. 27 February 2002 (E/CN.4/2002/18). Official Record.
Photo Credit: Flickr user Kevin T. Quinn