Conclusions and recommendations: it is clear that under the AFSPA of 1958, the government of India has sacrificed the respect for human rights and fundamental freedoms guaranteed under the Constitution and international human rights treaties to which India is a party...

There is no need for AFSPA to deal with situations or groups that were dealt by the Unlawful Activities (Prevention) Act of 1967 as amended in 2004. Nonetheless, the review of the AFSPA is a step in the right direction. However, unless the Review Committee can ensure the rule of law, due process of law and supremacy of judiciary, cosmetic amendments are unlikely to be able to heal the wounds caused by the misuse of special powers by the armed forces and restore the faith of the people in the executive, legislative and administrative system of the country.

The Asian Centre for Human Rights makes the following recommendations:

Section 3: Declaration of Disturbed Areas

The state government alone be empowered to declare certain areas or the entire state as ?disturbed? subject to the approval by two-thirds majority in the state legislative assembly;

The declaration of certain areas as ?disturbed? must be exceptional and temporary and not extended beyond two times, six months at a time;

A clear definition of ?disturbed areas? similar to the one provided in the Disturbed Areas (Special Courts) Act, 1976 be provided.

Section 4 (a): Power to shoot even to the causing of death for the maintenance of public order;

Non-commissioned officers shall be prohibited from ordering the use of fire-arms;

Commissioned officers shall not order the use of firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

In the above circumstances, commissioned officers shall identity themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to others, or would be clearly inappropriate or pointless in the circumstances of the incident.

Rules and regulations on the use of firearms by commissioned officers should include guidelines that:

(a) Specify the circumstances under which law enforcement personnel are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

(c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;

(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;

(e) Provide for warnings to be given, if appropriate, when firearms are to be discharged;

(f) Provide for a system of reporting whenever commissioned officers order the use of firearms in the performance of their duty;

(g) Provide that superior officers are held responsible if they know, or should have known, that law enforcement personnel under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent or report such use;

(h) Ensure that no criminal or disciplinary sanction is imposed on law enforcement personnel who, in compliance with the procedures recommended above, refuse to carry out an order to use force and firearms, or who report such use by other officials;

(i) Ensure that obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.