Revisiting AFSPA, 1958

Revisiting Armed Forces Special Power Act, 1958

(Armed Forces Special Power Act, 1958 has been a bone of contention between proponent of Human Rights and Indian State due to seemingly arbitrary powers it vest in Armed Forces where they are deployed under the provisions of the act. Here is a analysis of such contentious provisions…  

Constitutionalism demands that Power vested in the States need to be balanced by the Rights granted to the citizen of the country. This delicate balance need to be maintained and practiced impartially during enactment and implementation of laws to safeguard the democratic norms and values. Constitution of most of the democratic nations in the world has provisions to relax some of the rights of citizens during emergency conditions like war and external disturbances but even for such times there are built-in safeguards to protect any prejudiced action due to the exercising of additional power vested in the state.

It has been alleged by none other than United Nations, that the Armed Forces Special Power Act (AFSPA), 1958 is condemnable in the sense that it doesn’t incorporate required checks and balances even during peace times. Elaborating on this Christof Heyns, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions said, “The AFSPA in effect allows the state to override rights in the disturbed areas in a much [more] intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency,” .Heyns commented on scrapping the AFSPA, at the end of his 12-day fact-finding mission meant to examine situations of extrajudicial, summary or arbitrary executions in India. He visited Gujarat, Kerala, Jammu & Kashmir, Assam and West Bengal meeting secretaries of various ministries, police officers, human rights activists and other officials in these states.

Salient Features of AFSPA

Some of the contentious provisions of the act are cited below-

Sec 4: Special Powers of the armed forces – Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or move persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.

Sec 6:  Protection to persons acting under Act – No prosecution, suit or other legal

proceeding shall be instituted, except with the 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.

Critique of the contentious provision

AFSPA has attracted major controversy due to provision contained in Sec. 4 (a) which deprives  Right to life, the basic core of all human rights and fundamental freedoms, at the altar of  mere suspicion. Human rights are basic inalienable rights essential to ensure dignified existence for any human being..These inalienable rights are protected and guaranteed as absolute, non-suspendable and non-derogable in international human rights declarations. The Indian constitution incorporates them in Article 21 which reads as: "No person shall be deprived of his life and personal liberty except according to procedure established by law".  Article 21 is absolute and non-suspendable even in emergency times. Absolute means that it can be deprived only in accordance with the procedure established by law.

Though apex court has held the act as constitutional in Naga People's Movement for Human Rights (NPMHR) v. Union of India (1997) by taking a narrow reading of the phrase ‘procedure established by law’ it continued to be questioned by eminent legal luminaries for its arbitrary and unjust provisions. The narrow reading of the phrase ‘Procedure established by law’ in the judgement was taken even when Justice P.N. Bhagwati in the landmark Maneka Gandhi case (which practically over ruled Gopalan case) held "procedure established by law" must be right, just and fair and not arbitrary, fanciful or oppressive, otherwise it would not be procedure at all and the requirements of Article 21 would not be satisfied". The act becomes applicable when the areas is declared ‘disturbed’ by either centre or state government and army is deployed to control law and order situation. Presently, it has been slammed in Jammu and Kashmir and five North-Eastern states- Manipur, Tripura, Assam, Nagaland and Arunachal Pardesh.

Demand for repeal

The demand for repeal of the act has been raised time and again by people of the states where the act has been slapped. Human Rights Organizations like Amnesty International, which went to the extent of describing the act as ‘Draconian’, too has been raising the demand. Manorama Devi rape and subsequent killing in 2004 in Manipur by Armed forces sparked major uproar demanding repeal of the act. It also resulted in now infamous nude protests by mother of innocent persons killed by armed forces with handouts displaying ‘Indian Army rape us’. In an unprecedented protest, Irom Sharmila has been on continuous hunger strike for eleven years with the demand to repeal AFSPA. She sat on hunger strike after an incident in November, 2000, when armed forces in Malom, Manipur killed a dozen of civilians on a bus stop while hunting for insurgents. None of those killed were related to the insurgents.

The impunity enjoyed by the armed forces in the act has resulted in the deep feeling of denial of justice by the people of states where act is in place even after hundreds of innocent people have died due to human rights violations. Though recently in a welcome judgement on February 4, 2012, India’s Supreme Court stated that the Indian army could not invoke the AFSPA to avoid the prosecution of eight officers charged with the March 2000 killing of five Kashmiri villagers at Pathribal. After series of protests in Manipur and Jammu and Kashmir in 2004, India’s Union government appointed a five-member committee led by a former Judge of the Supreme Court, B. P. Jeevan Reddy to review the AFSPA.

BP Jeevan Reddy Committee

The committee, in its June 2005 report, recommended the repeal of the act, but wanted its substantive provisions to be transferred to an existing legislation – the Unlawful Activities (Prevention) Act, 1967 – a move which drew protests from human rights organizations. The Group of Interlocutors on Jammu and Kashmir also in their final report called for a positive response from the Union Defence Ministry to proposals for repeal of and amendments to the draconian Act. The report quoted Prime Minister’s Working Group on Confidence-Building Measures which had recommended reviewing the Disturbed Areas Act and AFSPA.

Army’s Position

India’s Armed Forces and the Ministry of Defence are steadfastly opposed to the repeal of AFSPA. They argue that the situation is far from ‘Normal’ for the revocation of the act. The argument though doesn’t stand on the facts as brought in Annual Report, 2011-12 of Ministry of Home Affairs. As per the report the civilians killed due to insurgency in Manipur, the most affected state in North-East, has come down from 130 to 26 in period ranging from 2007-11. Similarly the causalities of armed forces have reduced from 39 to 10 in the same period. Jammu and Kashmir too has seen major reduction in insurgency incidents in recent past.

Concluding Remarks

The line of defence adopted by the Attorney General, Ashok Desai in 1991 before the UN Human Rights Committee to justify AFSPA was that the law was the most effective instrument to prevent the secessionist movement in the North East India. Thus, the Act seems to be for the purpose of containing the secessionist movement in the region, which is political in nature contradictory to the Government's regular plea that it was a measure for maintaining law and order. 

It is most likely that such measure would only be counter productive in long run as it may fuel further resentment among the people of the involved states due to armed excesses of the forces as shown by the working of Armed Forces Special Power Act for five decades in North-East India and two decades in Jammu and Kashmir. Recent United Nation draft report, has also asked India to repeal the act as it has no place in democracy and is inconsistent with international commitment of India towards protection of human rights being violative of Universal Declaration of Human Rights. Given the turn of events, the current situation provides the Indian State an opportunity to seriously re-examine the continuation of the act in a manner which is consistent with its democratic credentials.

By Saurabh Naruka