Introduction

The Armed Forces (Special Powers) Act of 1958
(AFSPA) is one of the most arbitrary and despotic legislation that has been
passed by the Indian Parliament in the last 45 years in the Parliamentary
history. This act provides all security forces with unrestricted and
unaccounted power to carry out their operations, once an area is declared
disturbed.  Non- commissioned officers
are also granted the right to shoot to kill merely on suspicion under the guise
of maintaining public order.

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The Act provides armed forces with powers to shoot,
arrest and search anyone in the name of maintaining public order and aiding
civil power. First states to apply this Act were North Eastern states of Assam
and Manipur later it was amended in 1972 which extended the act to all seven
north 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. 1Enforcement
of this Act has led to numerous instances of random and capricious detention,
torture, rape and looting by security forces. The justification given for this
legislation by the Government of India is preventing the North East states from
seceding the Union of India.  

Time and again substantial efforts have been made to
improve the conduct of the security personnel and armed forces and holding
greater accountability and scrutiny on them while acting under the provisions
of AFSPA. Certain guidelines were laid down for the army operations in the
judgment of the Supreme Court case of Naga People’s Movement Against Human
Rights etc. vs. Union of India, safeguarding the adherence to procedural
guidelines by the armed forces.

Serious efforts have been made by the government to
minimize inconvenience to the people and minimize human rights violation at
every level. This has led to a reduction of complaints relating to human rights
violations due to AFSPA.

 

 

 

Legal Analysis

The AFSPA transgresses Indian and International
standards of law. This was examined when India presented its report to United
Nations Human Rights Committee in 1991. Numerous questions were asked by the
members of the UNHRC regarding the validity of the AFPSA and how it is deemed
constitutional under Indian law and asked justification for it under the light
of Article 4 of the ICCPR. The only argument given by the Attorney General of
India was that AFSPA was a necessary measure preventing the North Eastern
states from seceding the Union of India. He said that a response to this kind
of 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 Constitution
made it the duty of the Central Government to prevent internal disturbance in
the state.   2

This reasoning of the Government has given the
people of the North East a reason to want to secede from the Union and the
Government justifies their actions to use AFSPA by showing that the agitation of
the people is to secede the Union of India. This is a vicious circle. There are
many 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 High
Court found this decision to be binding in the People’s Union for Democratic Rights, the only judicial way to
repeal the act is for the Supreme Court to declare AFSPA unconstitutional.
AFSPA should be repealed by the legislature or declared unconstitutional by the
judiciary and the army rule should be ended in the North East.

 

1.      Violation
of Article 21 – Right to life

Article 21 of the Indian Constitution guarantees the
right to life to all people. It reads, “No person shall be deprived of his life
or personal liberty except according to procedure established by law.” 3Judicial
interpretation that “procedure established by law means a “fair, just and
reasonable law” has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi4.
This decision overrules the 1950 Gopalan
case 5which
had found that any law enacted by Parliament met the requirement of “procedure
established by law”.

Section 4(a) of the AFSPA grants the armed forces
and security personnel with the power to shoot to kill, therefore this section
violates fundamental right to life enshrined in the constitution of India.
Excessive amount of force is allowed to be used by the armed forces which is
not fair or reasonable.

The offenses under section 4(a) are: “acting in
contravention of any law or order for the time being in force in the disturbed
area prohibiting the assembly of five or more persons or the carrying of
weapons or of things capable of being used as weapons or fire-arms, ammunition
or explosive substances”. 6None
of these offences necessarily involve the use of force. The armed forces are
thus allowed to retaliate with powers which are grossly out of proportion with
the offence.

For justifying the use of force there needs to be
self-defense and a minimum level of proportionality to the force used against
the offense committed. The UNHRC pointed out that since “assembly” is not
defined in the act, it could also mean a lawful assembly such as a family
gathering 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 is
disproportionate and irrational.

Several incidents show how the Border Security Force
(BSF) and army personnel abuse their powers in the North East. In April 1995, a
villager in West Tripura was riding near a border outpost when a soldier asked
him to stop. The villager did not stop and the soldier shot him dead. Even more
grotesque 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 a
bomb attack and began firing indiscriminately in the town. The Assam Rifles and
the CRPF who were camped two kilometers away heard the gunshots and also began
firing. The firing lasted for more than one hour, resulting in the death of
seven innocent civilians, 22 were also seriously injured. Among those killed
were two girls aged three and a half years and eight years old. The injured
also included 7 minors. Mortars were used even though using mortars in a
civilian area is prohibited under army rules.

This atrocity
demonstrates the level of tension prevalent in the North East. For a tire burst
to be mistaken for a bomb proves that the armed forces are perpetually under
stress and live under a state of siege.

2.      Protection
against arrest and detention – Article 22

Article 22 of the Indian Constitution states that
“(1) No person who is arrested shall be detained in custody without being
informed, as soon as maybe, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his
choice. (2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the journey from the place of
arrest to the court of the magistrate and no such person shall be detained in
custody beyond the said period without the authority of a magistrate.” 7The
remaining sections of the Article deal with limits on these first two sections
in the case of preventive detention laws. On its face, the AFSPA is not a
preventive detention law therefore the safeguards of sections (1) and (2) must
be guaranteed to people arrested under the AFSPA.

Section (2) of Article 22 was the subject of much
debate during the framing of the Indian Constitution. There was argument over
whether the time limit should be specified or whether the words “with the least
possible delay” should be used. Dr Amedkar, one of the principal framers of the
Indian Constitution argued that “with the least possible delay” would actually
result 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 of
twenty-four hours. The application of these terms has since shown that a
specified time period constitutes a greater safeguard. Under the AFSPA, the use
of “least possible delay” language has allowed the security forces to hold
people for days and months at a time.

In Nungshitombi
Devi v. Rishang Keishang8, the
petitioner’s husband was arrested by CRPF on 10 January 1981, and was still
missing on 22 February 1981. He had been arrested under AFSPA Section 4(c). The
court found this delay to have been too long and unjustified, even under Section
5 of the AFSPA. In Civil Liberties
Organisation (CLAHRO) v. PL Kukrety9, people
arrested in Oinam were held for five days before being handed over to
magistrates. The court found this to be an unjustified delay.

 

3.     
Military’s Immunity / Lack of
Remedies

The members of the Armed Forces in the whole of the
Indian territory are protected from arrest for anything done within the line of
official duty by Section 45 of the CrPC. Section 6 of the AFSPA provides them
with absolute immunity for all atrocities committed under the AFSPA. A person
wishing to file suit against a member of the armed forces for abuses under the
AFSPA must first seek the permission of the Central Government.

This section of the AFSPA was also reviewed in
Indrajit Barua. The High Court justified this provision on the grounds that it
prevents the filing of “frivolous claims”. The court even said that this
provision provides more safeguards, obviously confusing safeguards for the
military with safeguards for the victims of the military’s abuses.

Instances of human rights abuses by the army have
shown that unless there is public accountability there is no incentive for the
army to change its conduct. This was exemplified in Burundi when security
forces killed 1,000 people in October 1991.

Amnesty International reported, “The failure to
identify those responsible for human rights violations and bring them to
justice has meant that members of the security forces continue to believe that
they are above the law and can violate human rights with impunity.” Without the
transparency of the public accounting, it is impossible to be sure that
perpetrators are actually punished.xxii

Habeas corpus cases have been the only remedy
available for those arrested under the AFSPA. A habeas corpus case forces the
military or police to hand the person over to the court. This gives the
arrested person some protection and it is in these cases that legal counsel
have been able to make arguments challenging the AFSPA. However, a habeas
corpus case will not lead to the repeal of the act nor will it punish
particular officers who committed the abuses. Also, only people who have access
to lawyers will be able to file such a case.

Section 6 of the AFSPA thus suspends the
Constitutional right to file suit. Mr Mahanty raised this crucial argument in
the first Lok Sabha debate on the AFSPA in 1958. He said that Section 6 of the
AFSPA “immediately takes away, abrogates, pinches, frustrates the right to
constitutional remedy which has been given in article 32(1) of the
Constitution.” This further shows that the AFSPA is more than an emergency
provision because it is only in states of emergency that these rights can be
constitutionally suspended.

Section 32(1) of the Constitution states that “the
right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.”

Dr B R Ambedkar said, “If I was asked to name any
particular article of the Constitution as the most important – an article
without which this Constitution would be a nullity. I would not refer to any
other article except this one (Article 32). It is the very soul of the
Constitution and the very heart of it.”

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

The
state is justified in taking precautionary measures to prevent terrorism and
protect the civilians of the country, maintaining law and order and bring the
culprits under justice of committing such offences In order to serve justice
the state should be reasonable and use force in a humane and proportionate manner.
Legislations like AFSPA need to be reviewed thoroughly and repealed if
necessary as the Act itself violates basic human and fundamental rights and
hass failed to achieve its objective for which the Act itself was made and the
Act is also being misused by the armed forces. Many incidents provide clear
indication that AFSPA is a big failure and grossly violates human rights. Even
after such tragic instances the government feels AFSPA has to be used to
control 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 give
highest pedestal to the human rights of the people. The training given to the armed
forces should be made known to the public so as to maintain complete transparency
regarding accountability and human rights issue. These changes are sure to help
the 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, 2018

2 http://e-pao.net/epSubPageExtractor.asp?src=education.AFSPA-A_Law_Review.AFSPA-A_Law_Review_6/
, 1st January, 2018

3 INDIA CONST. art 21

4
1978 SCR (2) 621

5
1950 SCR 88

6
ARMED FORCES (SPECIAL POWERS)
ACT. sec 4 sub sec (a)

7
INDIA CONST. art 22

8
(1982) 1GLR 756

9
(1988) 2 GLR 137

x

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