IntroductionThe Armed Forces (Special Powers) Act of 1958(AFSPA) is one of the most arbitrary and despotic legislation that has beenpassed by the Indian Parliament in the last 45 years in the Parliamentaryhistory. This act provides all security forces with unrestricted andunaccounted power to carry out their operations, once an area is declareddisturbed. Non- commissioned officersare also granted the right to shoot to kill merely on suspicion under the guiseof maintaining public order.
The Act provides armed forces with powers to shoot,arrest and search anyone in the name of maintaining public order and aidingcivil power. First states to apply this Act were North Eastern states of Assamand Manipur later it was amended in 1972 which extended the act to all sevennorth eastern states which includes Assam, Manipur, Tripura, Meghalaya,Arunachal Pradesh, Mizoram and Nagaland they were known as the “seven sisters.”Currently AFSPA is applicable in the states of Assam, Nagaland, Manipur, Meghalaya,Arunachal Pradesh and Jmmu and Kashmir. 1Enforcementof this Act has led to numerous instances of random and capricious detention,torture, rape and looting by security forces. The justification given for thislegislation by the Government of India is preventing the North East states fromseceding the Union of India. Time and again substantial efforts have been made toimprove the conduct of the security personnel and armed forces and holdinggreater accountability and scrutiny on them while acting under the provisionsof AFSPA. Certain guidelines were laid down for the army operations in thejudgment of the Supreme Court case of Naga People’s Movement Against HumanRights etc.
vs. Union of India, safeguarding the adherence to proceduralguidelines by the armed forces.Serious efforts have been made by the government tominimize inconvenience to the people and minimize human rights violation atevery level. This has led to a reduction of complaints relating to human rightsviolations due to AFSPA. Legal AnalysisThe AFSPA transgresses Indian and Internationalstandards of law.
This was examined when India presented its report to UnitedNations Human Rights Committee in 1991. Numerous questions were asked by themembers of the UNHRC regarding the validity of the AFPSA and how it is deemedconstitutional under Indian law and asked justification for it under the lightof Article 4 of the ICCPR. The only argument given by the Attorney General ofIndia was that AFSPA was a necessary measure preventing the North Easternstates from seceding the Union of India.
He said that a response to this kindof agitation for secession in the North East had to be done on a “war footing”.The Attorney General also argued that Article 335 of the Indian Constitutionmade it the duty of the Central Government to prevent internal disturbance inthe state. 2This reasoning of the Government has given thepeople of the North East a reason to want to secede from the Union and theGovernment justifies their actions to use AFSPA by showing that the agitation ofthe people is to secede the Union of India. This is a vicious circle. There aremany cases pending before the Supreme Court challenging the validity of AFSPA.Since the Delhi High Court found AFSPA to be constitutional in the case of Indrajit Barua and the Guwahati HighCourt found this decision to be binding in the People’s Union for Democratic Rights, the only judicial way torepeal the act is for the Supreme Court to declare AFSPA unconstitutional.
AFSPA should be repealed by the legislature or declared unconstitutional by thejudiciary and the army rule should be ended in the North East. 1. Violationof Article 21 – Right to lifeArticle 21 of the Indian Constitution guarantees theright to life to all people. It reads, “No person shall be deprived of his lifeor personal liberty except according to procedure established by law.” 3Judicialinterpretation that “procedure established by law means a “fair, just andreasonable law” has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi4.This decision overrules the 1950 Gopalancase 5whichhad found that any law enacted by Parliament met the requirement of “procedureestablished by law”.Section 4(a) of the AFSPA grants the armed forcesand security personnel with the power to shoot to kill, therefore this sectionviolates fundamental right to life enshrined in the constitution of India.Excessive amount of force is allowed to be used by the armed forces which isnot fair or reasonable.
The offenses under section 4(a) are: “acting incontravention of any law or order for the time being in force in the disturbedarea prohibiting the assembly of five or more persons or the carrying ofweapons or of things capable of being used as weapons or fire-arms, ammunitionor explosive substances”. 6Noneof these offences necessarily involve the use of force. The armed forces arethus allowed to retaliate with powers which are grossly out of proportion withthe offence.For justifying the use of force there needs to beself-defense and a minimum level of proportionality to the force used againstthe offense committed. The UNHRC pointed out that since “assembly” is notdefined in the act, it could also mean a lawful assembly such as a familygathering and the fact that weapon is not defined it could include a stone.Therefore the interpretation of the offences may be wide, but the force used isdisproportionate and irrational. Several incidents show how the Border Security Force(BSF) and army personnel abuse their powers in the North East.
In April 1995, avillager in West Tripura was riding near a border outpost when a soldier askedhim to stop. The villager did not stop and the soldier shot him dead. Even moregrotesque were the killings in Kohima on 5 March 1995. The Rastriya Rifles(National Rifles) mistook the sound of a tire burst from their own convoy as abomb attack and began firing indiscriminately in the town.
The Assam Rifles andthe CRPF who were camped two kilometers away heard the gunshots and also beganfiring. The firing lasted for more than one hour, resulting in the death ofseven innocent civilians, 22 were also seriously injured. Among those killedwere two girls aged three and a half years and eight years old. The injuredalso included 7 minors.
Mortars were used even though using mortars in acivilian area is prohibited under army rules.This atrocitydemonstrates the level of tension prevalent in the North East. For a tire burstto be mistaken for a bomb proves that the armed forces are perpetually understress and live under a state of siege.2. Protectionagainst arrest and detention – Article 22Article 22 of the Indian Constitution states that”(1) No person who is arrested shall be detained in custody without beinginformed, as soon as maybe, of the grounds for such arrest nor shall he bedenied the right to consult, and to be defended by, a legal practitioner of hischoice. (2) Every person who is arrested and detained in custody shall beproduced before the nearest magistrate within a period of twenty-four hours ofsuch arrest excluding the time necessary for the journey from the place ofarrest to the court of the magistrate and no such person shall be detained incustody beyond the said period without the authority of a magistrate.” 7Theremaining sections of the Article deal with limits on these first two sectionsin the case of preventive detention laws.
On its face, the AFSPA is not apreventive detention law therefore the safeguards of sections (1) and (2) mustbe guaranteed to people arrested under the AFSPA.Section (2) of Article 22 was the subject of muchdebate during the framing of the Indian Constitution. There was argument overwhether the time limit should be specified or whether the words “with the leastpossible delay” should be used. Dr Amedkar, one of the principal framers of theIndian Constitution argued that “with the least possible delay” would actuallyresult in the person being held for a shorter period of time, whereas “twenty-four hours” would result in the person being held for the maximum time oftwenty-four hours. The application of these terms has since shown that aspecified time period constitutes a greater safeguard.
Under the AFSPA, the useof “least possible delay” language has allowed the security forces to holdpeople for days and months at a time.In NungshitombiDevi v. Rishang Keishang8, thepetitioner’s husband was arrested by CRPF on 10 January 1981, and was stillmissing on 22 February 1981. He had been arrested under AFSPA Section 4(c). Thecourt found this delay to have been too long and unjustified, even under Section5 of the AFSPA. In Civil LibertiesOrganisation (CLAHRO) v. PL Kukrety9, peoplearrested in Oinam were held for five days before being handed over tomagistrates. The court found this to be an unjustified delay.
3. Military’s Immunity / Lack ofRemediesThe members of the Armed Forces in the whole of theIndian territory are protected from arrest for anything done within the line ofofficial duty by Section 45 of the CrPC. Section 6 of the AFSPA provides themwith absolute immunity for all atrocities committed under the AFSPA. A personwishing to file suit against a member of the armed forces for abuses under theAFSPA must first seek the permission of the Central Government.
This section of the AFSPA was also reviewed inIndrajit Barua. The High Court justified this provision on the grounds that itprevents the filing of “frivolous claims”. The court even said that thisprovision provides more safeguards, obviously confusing safeguards for themilitary with safeguards for the victims of the military’s abuses.Instances of human rights abuses by the army haveshown that unless there is public accountability there is no incentive for thearmy to change its conduct. This was exemplified in Burundi when securityforces killed 1,000 people in October 1991.
Amnesty International reported, “The failure toidentify those responsible for human rights violations and bring them tojustice has meant that members of the security forces continue to believe thatthey are above the law and can violate human rights with impunity.” Without thetransparency of the public accounting, it is impossible to be sure thatperpetrators are actually punished.xxiiHabeas corpus cases have been the only remedyavailable for those arrested under the AFSPA. A habeas corpus case forces themilitary or police to hand the person over to the court.
This gives thearrested person some protection and it is in these cases that legal counselhave been able to make arguments challenging the AFSPA. However, a habeascorpus case will not lead to the repeal of the act nor will it punishparticular officers who committed the abuses. Also, only people who have accessto lawyers will be able to file such a case.Section 6 of the AFSPA thus suspends theConstitutional right to file suit.
Mr Mahanty raised this crucial argument inthe first Lok Sabha debate on the AFSPA in 1958. He said that Section 6 of theAFSPA “immediately takes away, abrogates, pinches, frustrates the right toconstitutional remedy which has been given in article 32(1) of theConstitution.” This further shows that the AFSPA is more than an emergencyprovision because it is only in states of emergency that these rights can beconstitutionally suspended.Section 32(1) of the Constitution states that “theright to move the Supreme Court by appropriate proceedings for the enforcementof the rights conferred by this Part is guaranteed.”Dr B R Ambedkar said, “If I was asked to name anyparticular article of the Constitution as the most important – an articlewithout which this Constitution would be a nullity.
I would not refer to anyother article except this one (Article 32). It is the very soul of theConstitution and the very heart of it.” ConclusionThestate is justified in taking precautionary measures to prevent terrorism andprotect the civilians of the country, maintaining law and order and bring theculprits under justice of committing such offences In order to serve justicethe state should be reasonable and use force in a humane and proportionate manner.
Legislations like AFSPA need to be reviewed thoroughly and repealed ifnecessary as the Act itself violates basic human and fundamental rights andhass failed to achieve its objective for which the Act itself was made and theAct is also being misused by the armed forces. Many incidents provide clearindication that AFSPA is a big failure and grossly violates human rights. Evenafter such tragic instances the government feels AFSPA has to be used tocontrol the North Eastern States then all the armed forces should be trained properly.
The armed forces should respect human life and human dignity at all times and givehighest pedestal to the human rights of the people. The training given to the armedforces should be made known to the public so as to maintain complete transparencyregarding accountability and human rights issue. These changes are sure to helpthe innocent villagers who are stuck in between insurgents and military troops. 1 https://www.mapsofindia.com/my-india/india/afspa-understanding-this-special-act/, 1st January, 20182 http://e-pao.
net/epSubPageExtractor.asp?src=education.AFSPA-A_Law_Review.AFSPA-A_Law_Review_6/, 1st January, 20183 INDIA CONST. art 2141978 SCR (2) 62151950 SCR 886ARMED FORCES (SPECIAL POWERS)ACT. sec 4 sub sec (a)7INDIA CONST.
art 228(1982) 1GLR 7569(1988) 2 GLR 137