Though the Indian Defence Ministry is not in favour of lifting the operation of the AFSPA or diluting its provisions in the disturbed areas of the country, the Government’s judicial panel and the think tank, the Planning Commission has called for a review of the Act.

The Jammu and Kashmir Chief Minister OmerAbdullah has urged for lifting of AFSPA from some areas of the State where “normalcy” has returned. But the Indian Defence Ministry has communicated to the Union Home Ministry not to lift the operation of the Disturbed Areas Act from the insurgency ridden areas of the country which are designated as “disturbed areas” AFSPA, which gives special powers to the Armed forces, is being implemented in these “disturbed areas” where a foreign hand is behind the insurgency in the region.

The Indian Defence Ministry maintains that on the ground the situation has “not actually improved” to warrant a repeal or dilution of AFSPA as fears of cross-border infiltration still exist.

AFSPA is under implementation in the insurgency ridden northeastern region of the country and Jammu and Kashmir where several social sector schemes of the Government are in operation.

Himayat, SEE J&K and Parvaaz are among schemes for employment and skill development which are in operation in Jammu and Kashmir.

With the Planning Commission and Justice Verma panel giving its report a debate has come a fore over the issue of national security vis-à-vis human resources development and gender security

According to the Planning Commission women in disturbed areas face special issues including continuous army presence, suspended civil rights and lack of normal access to facilities/services due to continuous violence. They are most vulnerable to atrocities and need special attention in areas like health care measures, schools, free legal aid and so on. Gender sensitisation programs will be held for the authorities who implement specific legislations applicable to disturbed areas such as the Armed Forces Special Powers Act (AFSPA), and so on. The Twelfth Plan will also initiate review of the Armed Forces Special Powers Act (AFSPA) using a gender lens. Documentation of the gendered dimension of violations and needs assessment of women in disturbed areas presently under AFSPA will be done. Gender Resource Centres will be established.

The Government has appointed a three-member judicial panel headed by Justice JS Verma to suggest amendments to the Criminal Law in wake of the Delhi gangrape case of December 16. This judicial panel has expressed concerns over gender insecurity under AFSPA.

“At the outset, we notice that impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimized by the Armed Forces Special Powers Act, which is in force in large parts of our country. It must be recognized that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country. India has signed the International Convention for the Protection of All Persons from Enforced Disappearance, which has to be honoured. We, therefore, believe that strong measures to ensure such security and dignity will go a long way not only to provide women in conflict areas their rightful entitlements, but also to restore confidence in the administration in such areas leading to mainstreaming,” the Justice Verma panel report said.

According to the Justice Verma panel, there is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible. This is necessary for determining the propriety of resorting to this legislation in the areas concerned. Jurisdictional issues must be resolved immediately and simple procedural protocols put in place to avoid situations where police refuse or refrain from registering cases against paramilitary personnel.

The judicial panel, towards this end, suggested that sexual violence against women by the members of the Armed Forces or uniformed personnel must be brought under the purview of ordinary criminal law.

The panel has proposed amendment to Section 6 of the AFSPA, 1958 – “No prosecution, suit or other legal proceeding shall be instituted, except with 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.

“Provided that, no sanction shall be required if the person has been accused of committing an offence under Section 345, Section 345A, Section 345B, Section 354C, Section 376(1), Section 376(2), Section 376(3), Section 376A, Section 376B, Section 376C, Section 376D, Section 376D or Section 376E of the Indian Penal Code, 1860.”

The Justice Verma panel also suggested that special care must be taken to ensure the safety of women who are complainants and witnesses in cases of sexual assault by armed personnel.

The report has proposed appointment of special commissioners, vested with adequate powers, to monitor and initiate action for redress and criminal prosecution in all cases of sexual violence against women by armed personnel. These special commissioners should be appointed either through judicial or legislative processes and must be chosen from those who have experience with women’s issues, preferably in conflict areas.

Care must be taken to ensure the safety and security of women detainees in police stations and women at army or paramilitary check points and this should be a subject under the regular monitoring by the special commissioners.

General law relating to detention of women during specified hours of the day must be strictly followed. Training and monitoring of armed personnel must be re-oriented to include and emphasize strict observance by the armed personnel of all orders issued in this behalf.

Interestingly neither the Planning Commission nor the Justice Verma panel has called for total repeal of AFSPA of the Disturbed Area Act. It implies that both the panels have not underscored the importance of national security. Both the panels have suggested the review of AFSPA and diluting some of its provisions for ensuring gender security and safety. The Planning Commission in particular is interested in smooth operation of social sector schemes. However, the suggestions of both the panels have initiated a fresh debate in the country to look at the issue of national security vis-à-vis gender security.