A law that's past its use-by date

If the armed forces are going to be used within the country to deal with insurgencies and other serious internal disturbances, it is reasonable to expect that they must have the right to use force. But the requirements of democracy and even military discipline make it imperative that this right be exercised at all times and places in a lawful and reasonable manner. Regardless of what specific statutes may authorise, the use of force in both international and municipal law is considered reasonable only when it satisfies the twin tests of necessity and proportionality. It goes without saying that rules governing the use of force are meaningful only when there is some mechanism to ensure compliance. International law is often criticised for the absence of such a mechanism, especially when it comes to disciplining powerful states. But there is no excuse for civilised societies failing to take action when the laws that define what kind of violence is permissible are wilfully violated. By this yardstick, India is not doing well at all. The Armed Forces (Special Powers) Act, 1958, which grants soldiers far-reaching powers to arrest and kill, has impunity scripted into it. In line with Section 197 of the Criminal Procedure Code, Section 6 of AFSPA prohibits the prosecution of a soldier accused of misusing its provisions unless the central government grants sanction.

In Kashmir, the Army brass has used this section to protect its men from going to trial even in incidents where they stand accused of heinous crimes such as the abduction and murder of unarmed civilians. In States like Manipur, so powerless have the civilian authorities become in the face of the Army presence that no one is even willing to take cognisance of serious crimes allegedly committed by soldiers. In 2004, Prime Minister Manmohan Singh promised the people of Manipur that he would seriously consider replacing AFSPA with a more humane law. He appointed a committee headed by Justice B.P. Jeevan Reddy to examine the functioning of the law; and the committee, noting the way in which the law was being abused, suggested its replacement by an amended version of the Unlawful Activities (Prevention) Act. In the face of the Defence Ministry's objections, however, the report was quietly shelved. Now, in the wake of the resurgence of mass protest in the Kashmir valley, the central government has once again started making vague promises about amending AFSPA. The time to make these changes is now. Section 4 should be amended to explicitly incorporate the principles of necessity and proportionality and Section 6 must be changed to allow for the prosecution of illegal acts in all cases except where the government is able to convince the courts otherwise. Expedient steps like taking some districts out of the ambit of “declared areas” just won't do.