The Armed Forces Special Powers Act and the law of impunity

Javaid Magray’s file

Javaid Ahmad Magray was seventeen when a patrol of Indian soldiers killed him on the night of 30 April 2003. The army said he was what it calls a “militant”. A district magistrate who investigated found that the “deceased boy was not a militant” and had been “killed without any justification” by a junior commissioned officer of the Indian army and the men of his patrol. The state government asked New Delhi for permission to prosecute nine soldiers. On 3 January 2011 India’s defence ministry refused. It wrote that “the individual killed was a militant from whom arms and ammunition was recovered” and that “No reliable and tangible evidence has been referred to in the investigation report.”

No one told the family. “We simply never heard what happened with it,” his father, Ghulam Nabi, told Amnesty International India. “The problem is that the army never accept that sometimes these violations happen. They’re always in denial.” His uncle, Mohammad Amin Magray, called the law that protected the soldiers “a blank cheque from the government of India to kill innocents like my nephew”. If soldiers knew they would be charged and prosecuted, he said, “they will think ten times before they pull their triggers on an innocent”.

That law is the Armed Forces (Jammu and Kashmir) Special Powers Act of 1990, known as AFSPA. It lets Indian soldiers in Kashmir shoot to kill, arrest and search without a warrant, and it forbids any court to try them unless the central government first consents. Since 1990, the UN human rights office reported in 2019, that consent has not been given for a single prosecution in a civilian court.

A colonial ordinance revived

The law has a colonial ancestry. Human Rights Watch traces it to a British ordinance of 1942 intended to contain the Indian independence movement during the Second World War. Independent India revived the model in May 1958 for the Naga Hills, and parliament passed the Armed Forces (Special Powers) Act that August as a short-term measure. In the debate a member from Manipur, Laishram Achaw Singh, called it a “lawless law” that would “harass innocent folk and deteriorate the situation”.

In 1990 India turned the model on Kashmir. By that summer Indian illegally occupied Jammu and Kashmir was in open revolt. The plebiscite promised by India and the United Nations had never been held, the election of 1987 had been rigged, and young Kashmiris had taken up arms. New Delhi answered with Governor’s Rule and with firing on crowds at Gawkadal, Handwara, Zakura, Tengpora and Hawal. In the first week of July 1990 the governor, Girish Chandra Saxena, declared the Kashmir Valley and a belt twenty kilometres deep along the Line of Control in Poonch and Rajouri to be disturbed. After an ordinance, the Indian parliament passed the special powers as Act number 21 of 1990, dated 10 September 1990 and deemed to have come into force on 5 July.

What the Act allows

Section 4 is the heart of the law. In an area declared disturbed, any commissioned officer, warrant officer or non-commissioned officer may, after whatever warning he considers necessary, “fire upon or otherwise use force, even to the causing of death” against anyone acting against an order that bans the assembly of five or more people or the carrying of weapons. The soldier on the spot decides. The same ranks may destroy any “arms dump, prepared or fortified position or shelter”, arrest without a warrant anyone suspected of a cognisable offence, and enter and search any premises without a warrant, with the power to break open locks. A person arrested must be handed to the nearest police station “with the least possible delay”, a phrase that sets no limit in hours.

Section 3 sets out when the governor or the central government may declare an area disturbed. The grounds include “terrorist acts”, but also “activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India”. To question Indian rule over Kashmir is the political position of a great many Kashmiris. In the text of this law it is a reason to send in the army.

Disturbed for thirty-six years

According to Kashmir Life, the notification of 6 July 1990 covered every district the Valley then had and the border belt in Poonch and Rajouri. On 10 August 2001 the state government of Farooq Abdullah extended it to the whole Jammu division: the districts of Jammu, Kathua, Udhampur, Doda, Rajouri and Poonch. The extension followed two attacks by armed men: the killing of thirteen shepherds at Shrotidhar in Kishtwar and an attack at Jammu railway station in which thirteen people, some of them soldiers, were killed.

The state’s own Disturbed Areas Act, issued in 1990 and renewed in 1992 and 1997, was allowed to lapse. The declaration under AFSPA was never withdrawn. India’s Supreme Court ruled in 1997 that such a declaration must be reviewed before six months have passed, yet in Kashmir it has stayed in force without a break. When New Delhi dissolved the state and made it a union territory on 31 October 2019, officials said the whole territory remained a disturbed area and that the power to notify had passed from Srinagar to the centre.

Permission from New Delhi

The provision that matters most is one of the shortest. Section 7 says that no prosecution, suit or other legal proceeding may be brought against anyone for what was done or claimed to be done under the Act “except with the previous sanction of the Central Government”. The Jammu and Kashmir police can register a case against a soldier and complete an investigation, but no court can try him unless New Delhi agrees.

The Supreme Court held in 1997 that the central government must pass an order “giving reasons” whenever it grants or refuses sanction. The reason given has almost always been the same: that the evidence did not establish a prima facie case. The families are usually not told at all. Not one of the families that Amnesty International India interviewed for its 2015 report Denied had been “directly informed by the authorities of the status or outcome of a sanction request in relation to their case”.

No request granted

The government’s own figures do not agree with one another. In an affidavit of 5 June 2009 the defence ministry said it had received 35 requests and granted none. On 6 September 2011 the state Home Department said it had sent 50 requests since 1989, 31 to the defence ministry and 19 to the home ministry: 26 declined, 16 awaited and eight described as “recommended”. The Jammu Kashmir Coalition of Civil Society, setting the figures side by side, called the provision “a fig leaf” and said that “there is 100% impunity for the soldiers operating in Jammu and Kashmir”.

In April 2012, answering a request under the Right to Information Act, the defence ministry said it had received 44 applications to prosecute soldiers since 1990, had refused 35 and was still considering nine. Of 46 cases the state Home Department listed as sent, the ministry had told the High Court it never received 27. The state said it had sent 29 applications to the home ministry, which commands the paramilitary forces, and the ministry refused to disclose what it had decided. “To date,” Amnesty wrote in 2015, “not a single member of the security forces deployed in Jammu and Kashmir over the past 25 years has been tried for alleged human rights violations in a civilian court.”

On 1 January 2018 the defence ministry told the Rajya Sabha that it had received 50 requests from the Jammu and Kashmir government between 2001 and 2016. It had refused 47 for lack of evidence of a prima facie case, and three were pending. The allegations included killings of civilians, torture and killing, deaths in custody, eight disappearances, rape and a fake encounter. When the transparency activist Venkatesh Nayak asked to see the files, India’s Central Information Commission ruled on 5 June 2020 that he could have copies of the refusal orders but not the case records, citing the larger public interest and the risk of unrest. For the 1990s no complete figure has been published; the Kashmir Times recorded in 2023 that no sanction at all had been communicated to the state between 1990 and 2011.

The names behind the refusals

Ashiq Hussain Ganai, his family says, was tortured and killed in army custody in 1993. The defence ministry refused sanction in 1997 “without providing any reasons for their denial”, in Amnesty’s words. The family petitioned the High Court on 14 May 1999. The last order Amnesty could trace, on 20 November 2006, gave the central government more time.

Manzoor Ahmad Mir disappeared in September 2003. The police charged a captain of the 23rd Rashtriya Rifles with his kidnapping and murder and with destroying evidence. On 23 February 2009 the defence ministry refused sanction, writing that “the allegation was motivated by vested interests to malign the image of security forces”. The family’s challenge, filed in the High Court in 2011, was still awaiting a government response in June 2015. “The whole system is corrupt,” his brother, Bashir Ahmad Mir, told Amnesty. “We are fighting for the guilty to be put behind bars, but it is impossible.”

The killing of the human rights lawyer Jalil Andrabi was registered as case number 29 of 1997 at Saddar police station in Srinagar against Major Avtar Singh. In 2011 the state listed the request for sanction as “awaited”; the defence ministry said it had never received it. By then Avtar Singh was reported to be living in the United States, and an Interpol red corner notice had been issued against him.

Courts and the army’s own trials

In November 1997 India’s Supreme Court upheld the 1958 Act, while ruling that declarations must be reviewed every six months, that soldiers must use “minimal force required for effective action” and that the army’s own dos and don’ts were binding. None of these conditions has brought a Kashmiri family a trial.

The Pathribal case showed how far the shield extends. On 25 March 2000 the army announced that it had killed five foreign “militants” responsible for the massacre of Sikh villagers at Chattisinghpora. The dead were local civilians taken from their homes. India’s Central Bureau of Investigation charged five soldiers, among them a brigadier, with abduction, murder and conspiracy. On 1 May 2012 the Supreme Court held that sanction was needed before a civilian court could proceed but not for a court martial, and gave the army eight weeks to choose. Amnesty International called the ruling “a major setback”. The army chose its own court, and on 24 January 2014 it closed the case for “lack of evidence” without a trial.

Where the army has punished its own men, the punishment has not lasted. Shazad Ahmad Khan, 27, Riyaz Ahmad Lone, 20, and Mohammad Shafi Lone, 19, were killed in a fake encounter at Machil in April 2010. Five soldiers were sentenced to life imprisonment by court martial in 2014, and in July 2017 the Armed Forces Tribunal suspended their sentences and granted them bail. Captain Bhoopendra Singh, sentenced to life by court martial for killing three men at Amshipora in July 2020, was also granted bail by the tribunal.

When the police tried to act, the courts stopped them. On 5 March 2018 the Supreme Court halted the police investigation into the killing of three civilians at Ganowpora in Shopian on 27 January 2018 by soldiers of the 10 Garhwal Rifles. Ruling on killings in Manipur in July 2016, the same court had declared that “there is no concept of absolute immunity from trial by the criminal court” for soldiers. In Kashmir that sentence has not produced a single trial.

Repeal urged, repeal refused

After the killing of Thangjam Manorama Devi in Manipur in July 2004, the Indian government appointed a committee under a retired Supreme Court judge, B. P. Jeevan Reddy. Its report of 6 June 2005 recommended that the 1958 Act be repealed. The Act, it said, had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”, and it was “too sketchy, too bald and quite inadequate in several particulars”. The government did not act on it, nor on the later recommendation of Justice J. S. Verma’s committee that soldiers accused of sexual violence be prosecuted without sanction.

The UN Human Rights Committee recommended in 1997 that the requirement of government permission for prosecutions be abolished. In March 2009 the High Commissioner for Human Rights, Navi Pillay, called in New Delhi for the repeal of “dated and colonial-era” laws that give the forces excessive emergency powers. On 30 March 2012 the Special Rapporteur on extrajudicial executions, Christof Heyns, noted that in Jammu and Kashmir “the armed forces have wide powers to employ lethal force” and recommended “the immediate repeal of the laws providing for the immunity from prosecution of the police and the armed forces”. In July 2019 the UN human rights office reported that AFSPA “remains a key obstacle to accountability”. India called the report a “false and motivated narrative”.

Talk of withdrawal

Kashmir’s elected politicians have asked for much less than repeal. In 2010 and 2011 the chief minister, Omar Abdullah, sought to have the Act lifted from a few districts, among them Srinagar, Ganderbal, Jammu and Kathua. New Delhi did not do it. In April 2022 the defence minister, Rajnath Singh, said the armed forces themselves wanted it removed from Jammu and Kashmir “provided the peace prevails”. On 27 March 2024 the home minister, Amit Shah, said in an interview that revocation “will be considered” as the situation turned what he called normal, and that troops could gradually be withdrawn.

Kashmiri leaders heard it as an election promise. “I am waiting for this day since 2011,” Omar Abdullah said, warning that people might be misled. Mehbooba Mufti answered: “Better late than never but only if it isn’t jumlebaazi like generating two crore jobs every year”. No withdrawal followed. On 14 June 2026 Nasir Aslam Wani, adviser to Chief Minister Omar Abdullah, appealed to New Delhi that if it repealed the law anywhere, “they should first of all revoke it (AFSPA) from J&K”.

What the law has meant

When this article was reviewed the Act had been in force in Kashmir without interruption for more than thirty-six years, outlasting the state itself. It stands behind a deployment that has made Kashmir one of the most heavily militarised places in the world, a presence Kashmiris describe as an occupation.

The state’s own police and government asked New Delhi dozens of times to let soldiers be tried for killings, disappearances, torture and rape. The answer was always no, or no answer. The few soldiers tried by the army’s own courts have seen their cases closed or their sentences suspended. For the family of Javaid Magray, as for the families of Pathribal, the law has meant one thing: the men who killed their sons cannot be brought before a judge unless the government that sent them agrees.