Armed Forces (Special Power) Act, 1958 (AFSPA) is one of the more draconian legislations that the Indian Parliament has passed in its Parliamentary history. Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill (Section 4[a] of the said Act) based on mere suspicion that it is necessary to do so in order to “maintain the public order”. The AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of “aiding civil power.” It was first applied to the North Eastern states of Assam and Manipur and was amended in 1972 to extend to all the seven states in the northeastern region of India. The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. The people of Manipur unlike their counterparts in other states of India have been subjected to repressive measures and they are unable to enjoy the pleasure of being citizens of free India. The repressive provision of this act can only be unleashed after declaration of ‘disturbed area’ under section 3 of the said act.
Section 3: Undeclared Public Emergency
Section 3 of the Armed Forces Special Powers Act, 1958 provides that:
“If in relation to any State or Union Territory to which this Act extends, the Governor of the State, or the Administrator of the Union Territory, or the Central Government in either case, is of the opinion that the whole or any is in such a disturbed or dangerous condition that the use of Armed Forces in aid of civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area”.
The process of declaration of emergency under the Armed Forces Special Powers Act, 1958 as amended in 1972, violates the provisions of the Constitution of India and International Covenant on Civil and Political Rights to which India is a party.
Section 4: Operation of the AFSPA
The operative clauses of the Armed Forces Special Powers Act, 1958 allow extrajudicial executions under section 4(a), destruction of properties and firing upon any absconder without any warning under section 4(b), arrest without warrant under section 4(c) and search and seizure without warrant under section 4(d).
A comparison with the relevant provisions of the Indian Criminal Procedure Code (CrPC) and Indian Penal Code (IPC) shows that the AFSPA violates the laws of the land.
Section 6: Impunity to the armed forces
Under Section 6 of the Armed Forces Special Powers Act, "No prosecution, suit or other legal proceedings 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 powers conferred by this Act."
This provision virtually eliminates any prosecution of armed forces personnel. This despite the government of India already provides impunity under Section 197 of the Criminal Procedure Code.
The imposition of Armed Forces (Special Power) Act in the North East particularly in the state of Manipur is no more necessitate in the following grounds: -
First, the AFSPA has manifestly failed to contain, let alone resolve, any insurgency in the North East. When the AFSPA was imposed on 8 September 1980, there were only four armed opposition groups in Manipur – the United National Liberation Front, People's Revolutionary Party of Kangleipak, People's Liberation Army, and National Socialist Council of Nagaland. However, today there are over two dozens armed opposition groups including the Kanglei Yaol Kanba Lup, People's United Liberation Front, North East Minority Peoples Front, Islamic National Front, Islamic Revolutionary Front, United Islamic Liberation Army, Kuki National Army, Kuki National Front, Kuki Revolutionary Army, Zomi Revolutionary Army and the United Kuki Liberation Front, among others.
Second, there are adequate laws to deal with insurgency situations and the non-State actors. While India did not have specific laws in 1958 to deal with armed opposition groups, it has subsequently adopted numerous draconian laws such as the Terrorist and Disruptive Activities Prevention Act, 1985 and the Prevention of Terrorism Act (POTA), 2002. After the lapse of these laws, the government of India amended the Unlawful Activities Prevention Act of 1967 in December 2004 to incorporate the provisions of the POTA 2002. The Unlawful Activities Prevention Act of 1967 as amended in 2004 is adequate to deal with all insurgent groups and their unlawful activities.
Third, the strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences against the innocents and punishment for breaches of such provisions while exercising executive powers; and not in providing the arbitrary powers to the law enforcement personnel to be law unto themselves. The AFSPA violates basic tenets of criminal justice system in any civilized society – first by providing special powers which tantamount to awarding heavier penalty to the suspect that a convicted person would get under normal court, a clear violation of the cardinal principle of criminal justice system - nullum crimen, nulla poena sine lege1 and second, through non-application of due process of law which makes the armed forces to be their own judge and jury. Most importantly, by giving virtual impunity to the armed forces under Section 6 of the AFSPA which makes its mandatory to seek prior permission of the Central government to initiate any legal proceedings, the Executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious, abusive or frivolous.
Though, there is no need for retention of the AFSPA, the Review Committee appears to have already decided to retain the AFSPA with some amendments. It has called for representation on whether it should recommend to the government of India to “(i) amend the provisions of the Act to bring them in consonance with the obligations of the Government towards protection of Human Rights; or (ii) replace the Act by a more humane legislation.” Both the proposals have the same end – the retention of the Act.
In order to uphold the supremacy of the judiciary and primacy of the rule of law, the Review Committee must ensure that the judgements of the Supreme Court of India and opinions of international bodies including the United Nations Human Rights Committee on the AFSPA are incorporated in the amended AFSPA. Leaving it to armed forces to respect “Do's and Don'ts" issued by the army authorities as naively espoused by the Supreme Court of India in its controversial judgment on the constitutional validity of the AFSPA and to the courts to decide “case by case basis” have proved to be inadequate, ineffective and counter productive because of continued violations of human rights.
