This article is written by Heba Ali, a BBA LLB Student at Symbiosis Law School, Noida. This article talks about Armed Forces Special Powers Act, 1958 in detail, specifically the violence carried on in different parts of the country where the act has been enforced in the past and the urgent need to repeal AFSPA.

Introduction

Armed Forces Special Powers Act (AFSPA), 1958 has been a controversial act over the years and has been criticized by different sections of the society since its enactment. This act gives unfettered powers to people deployed in armies to shoot and kill any person if they have any doubt that the person is a threat in any manner. This law has been and still continues to be misused by the armed forces which is a sheer violation of Article 21. The law enacted even gives immunity or protection to the armed personnel against any type of prosecution. AFSPA has been a topic of debate since its inception and it should be struck down because it is misused by the people to a great extent.

Armed Forces Special Powers Act, 1958 had its roots in the Lord Linlithgow Ordinance 1942  which was enacted to curtail the Quit India movement and Nagaland was one of the first former states to demand the withdrawal of itself from India. After this, the government enforced AFSPA which is a law that was used back then by the Britishers to curb the movement of struggle for freedom because of which many Indians were killed, imprisoned and many families were destroyed. AFSPA is same as other colonial laws which were enacted and enforced onto the people before independence. Now, it is even more arbitrary in nature than it was before because earlier the power to shoot was given to only the officers who were of the rank of captain in 1942 before independence. But, now it is extended to even the non-commissioned officers and thus making it arbitrary in nature.

AFSPA gives power to the people who are in the army to shoot a person if they believe or have any thought that the concerned person may cause a threat. The law even gives immunity to the armed personnel before getting prosecuted along with other types of immunity. AFSPA has been enforced in different parts of India after it has come into force in different states of India like in almost all the Northeastern States, Punjab and also many times in the state of Jammu & Kashmir. AFSPA is often referred to as a bad law since the time it was enacted because of its arbitrary nature. People in the past as well as now have many times protested against this law especially because of the problems and incidents of human rights violation in the states like Kashmir, Nagaland, Manipur and other northeastern states. It has been over 60 years since this act came into being in India but the conflicts related to the law have not changed and have remained the same till now. There have been incidents like in Kashmir where a large number of civilians were injured and many were killed and blinded for their whole life because of the use of pellet guns in the year 2016 and because of this people have been agitated of the government at the Centre than ever before because of their inability to take strict actions against such offences which outrageous in their nature.

If one go through the data and situation prevailing then will notice that there are people as young as between the age group of 12-17 years who have been booked under the  Public Safety Act, 1978 which is a state law that gives powers to the police to detain any person for months without taking his case to trial. Like, there has been a number of cases of fake encounters in Manipur as it was claimed in the case of Extra-Judicial Execution Victim Families Association and Anr. vs Union of India. Rapes and other incidents of sexual harassment have become common and even though such incidents are happening then also the voices of people in the region of Kashmir and Northeast have not been heard and taken into account by the concerned people.

The Supreme Court in its decision in the case of Naga People’s Movement of Human Rights v Union of India upheld the constitutional validity of AFSPA but laid down certain guidelines in the form of do’s and don’ts. The do’s and don’ts are a range of duties and responsibilities such as a person should not be detained for more period than what is required and then he should be handed over to the nearest police station and no force should be used on that person who is arrested except when he is trying to escape. No persons are allowed to use third-degree torture on the person arrested or against the person who is under suspicion that will cause pain to him in order to get information or make the person confess and only the armed personnel are allowed to arrest the person.

There have been many human rights activists who have protested against such acts like Irom Sharmila where she followed the example of Mahatma Gandhi. She is a 39-year old activist who was on hunger strike from November 2000. She is protesting against this most controversial law in India which is AFSPA which was enforced in Manipur in the late 1980s, after the incident when several groups in Manipur began a movement to free themselves from the Indian subcontinent. There has been conflict of interest with people residing in Manipur because of the political propaganda, which had eventually impaired the former princely state of Manipur when it was merged with India in the year 1949. Many people see the union of India be flawed and would prefer independence from it. There were several other ethnic groups which were fighting for independence from India like in the states of Nagaland, Assam, Tripura and some parts of Kashmir which are under the control of India. AFSPA is considered as bad law and criticized so much because it indemnifies the Indian soldiers who are deployed to fight battles.

Need For A Transformative Law

Now, its high time to change this law which does flagrant misuse of powers which in turn violates human rights. Also, the jurisprudence has also changed on the fundamental rights given to us by the constitution itself. The rights guaranteed under Article 21 has been extended and now it includes multiple rights in it like Right to privacy as held in the case of KS Puttaswamy and Anr. v Union of India. The Supreme Court in India in various cases over the years has made it important for human rights protection in India as well as under International law.

The important thing to note is that the reports do not include the atrocities and violence committed by the militants. In the case of Extra-Judicial Execution Victim Families Association v. Union of India, where the court had laid down the guidelines regarding the enquiry to be conducted for the fake encounters in the state of Manipur. The Supreme Court held in its decision that the decisions taken by the Manipur Police in the exercise of force on to the people are not permissible even in the areas which were declared to be disturbed region and under Armed Forces Security Act in the state of Manipur. Also, directions were given to conduct an enquiry regarding the encounters resulting in deaths of persons which were carried on by the police of Manipur and by the armed personnel deployed in Manipur.

The judgement given by the Supreme Court was largely celebrated by the families of the victims as well as by the human rights activists. This decision was given despite the fact of Section 6, AFSPA, 1958 the courts gave this decision because they had to enquire that whether there was an abuse of power by the people in the armed forces or not and whether the encounters done were genuine or fake. This is not the first instance where the courts have taken such a decision because it was taken earlier by the Supreme Court in the Naga People’s Movement Of Human vs Union Of India. This decision taken was necessary to check the facts that the government in power had continued to deny any such allegation made on the armed forces relating to the encounters done in the state of Manipur and flagrant violation of human rights.

Apart from conducting the enquiries related to the death due to misuse of power by the police officials, the court also stressed on the issue of re-affirming whether we need this act by going for the judicial review of AFSPA. Reports have been submitted to the Supreme Court on fake encounters committed in the state of Manipur since 1979 which includes nearly 1,528 cases. If one goes through the reports on the number of innocent people killed then will notice that nowhere people in Manipur are actually safe. Especially the data shows that most young men are killed because they are suspected as militants. The sad part is that these reports were submitted by the government only to the judges and a copy of the report was not given to the petitioners who were an important part of these cases. So they were unable to follow their case and know the status of the case. In spite of all this order was passed that the strength of the team investigating the case should be increased. It was also directed that the National Human Rights Commission (NHRC) should be involved as a part of the team doing the investigation.

Case Laws

In the Naga People’s Case, the courts looked at different issues specifically on the point of arbitrariness and the unconstitutional powers as declared by the courts under AFSPA. Many contentions were raised against the power to shoot under AFSPA, the immunity given under AFSPA and the powers granted by the Centre for prosecuting the armed personnel. But even after so many criticisms surrounding this act, there were no arguments related to the rights of people in such areas except that it should be less stringent so that people are not harassed. AFSPA needs to be looked from the point of view of constitutional morality also taking into account other approaches available that the Supreme Court has made important in a democracy. This eventually means that under AFSPA the governor of the state and the central government has the power to declare any part of the state or any small part of the state as a disturbed area. AFSPA was held constitutionally valid in this case by the Supreme Court of India. Parliament in all its way is competent to enact the act in the view of Entry 1 of State List and Article 248 which is read with Entry 97 and Entries 2 and 2-A of Union List and by this Parliament had the power to enact this in the year 1958.

In another famous case of Indrajit Barua v The State Of Assam And Anr, where the court found and declared that it is the duty of the state to assure the protection its citizens and their rights guaranteed under Article 21 which is also given to people where the AFSPA is enforced. The people in those area which is assigned as ‘disturbed areas’ are denied any type of protection of their lives and liberties including protection of the Criminal Procedure Code and even the right to approach the courts and seek redressal which in turn has violated Article 14 that is given by the makers of the constitution and is guaranteed to its citizens. By looking at the situation in the Northeastern side of India it could be concluded that people living over there are eventually under army rule.

In other cases like the Shopian Case, two women went missing while they were returning home from the orchards and the next day their dead bodies were found and it was alleged that they were raped and killed by the armed forces who were deployed nearby. Eventually what happened was that the injuries that were on the private parts of the girls that were supposed to be mentioned in the post-mortem reports were cleared off, so that the armed forces could not be blamed and questioned or brought into the matter, even no FIR was registered in this case where such horrifying incident took place. Then in case of Luithukla v. Rishang Keishing where a writ of habeas corpus was filed and the court ordered that the army should follow the rule of Code of Criminal Procedure but there was enforcement and nobody paid attention to the sayings of the Guwahati High Court. In return, the army officers had accused the judges of the High Court for weakening the powers of the military forces deployed in the northeastern part of the country.  

Campaigns to repeal AFSPA

There have been campaigns organized by people and human rights activists to repeal this abusive act which is known as AFSPA. Despite the campaigns organized by various international human rights activists as well as domestic ones, the Indian government is not willing to repeal the act. There have been committees in the past which were set-up in 2004 to repeal the act like the Justice Jeevan Reddy Committee which was set-up and Dr. Manmohan Singh formally agreed to review the AFSPA after the killing of Thangjam Manorama Devi in the year 2004. It was a committee set-up with Justice Jeevan Reddy, a retired Supreme Court judge as its head to review Armed Forces Special Powers Act, 1958. It was set to see whether it should be replaced with a more humane act while taking into account the duty of government to protect the basic human rights guaranteed of its citizens.

The reports were submitted by the committee to the Home Ministry on 6th June, 2005. But, an accident occurred when the report which was not made available to the public was leaked and was available to the general public on the Internet. The reports showed that they had recommended to repeal the act and also made a conclusion that it was a bad act. And now when it has been enforced in so many parts of the country it has turned into a tool of discrimination and violence. The committee even recommended that some of the provisions should be transferred to Unlawful Activities (Prevention) Act, 1967 and even asked to set up an independent cell which will be called as ‘grievance cell’ that will do the work to enquire into the complaints filed for violation of basic human rights. It is not only this committee which has recommended to repeal Armed Forces Special Powers Act,1958 but committees like Justice Verma Commission in the year 2013 had also reported that there has been an abuse of powers by the armed forces. Other reports show that the killing of Thangjam Manorama Devi by Assam Rifles in the year 2004 was not disclosed by the government.

AFSPA and International Law

India is often considered as a country around the world that gives significance to the rights and liberties of its citizens. But, what is happening in the states of Manipur, Jammu & Kashmir, Nagaland looks like the law is making a mockery of the human rights which are guaranteed to its citizens. In the recent past, the violence which had occurred in Jammu & Kashmir has made people start to think that we really need AFSPA and now it has turned into a hot topic for a national debate.

The first state where Armed Forces Special Powers Act, 1958 was enforced was the state of Arunachal Pradesh then it went on and was also enforced in the state of Assam, Manipur, Meghalaya, Mizoram, Tripura and Nagaland and later in July 1990 it was enforced in the state of Jammu and Kashmir. It is a type of law that gives excessive power to the armed forces and the people who are suffering because of it consider it a draconian law. Over the years, people have campaigned to repeal the act and even international organizations like Amnesty International have asked the courts in India to look into the matter deeply and conduct investigations regarding rampant misuse of powers by armed forces as well as by other government officials that led to a number of cases where reports show violations of human rights.

Many people even compare the Armed Forces Special Powers Act, 1958 to the Rowlatt Act, where the Britishers gave themselves unbridled powers to imprison any person on the basis of any suspicion of them being involved in any terrorist activity against British India for up to 2 years without giving them a chance for a trial. Another important thing to note is that the Indian Army which is the organization being accused by the people for committing horrifying acts that were being carried on in the state over the years never came in front of the public to express their views and take a stand on this important issue. And data shows that the army is never called into question except in situations where it is beyond their capacity of administration, the police and other officials.

AFSPA and Human Rights Violations

It’s high time that AFSPA should be looked into seriously by the government and repealed because of the incidence of violence that had happened in the past and continues to take place even now. One of the incidences showcasing violence is the Operation Bluebird which was also reported by some of the prominent international organizations which happened in the month of January in 1987 at a place called Oinam in the state of Manipur where almost 30 villages occupied by the nagas were covered for committing violence that included torture, killing people in masses which also added to heinous acts of sexual harassment, theft and other criminal activities which were carried on for many days.

It is also important to note that even the authorities were not allowed to move into the areas where such activities were carried on. AFSPA is inhumane as it had made the lives of people as if they were in curfew-like conditions for their entire lives. This act overall does not abide by the principle of constitutional morality and is arbitrary in nature. The decisions of the government taken in cases that relate to the disturbed areas cannot be questioned in any court of law. And because of this many incidences that relate particularly to these areas where such activities are being carried on is not reported and justice is not given to the victims. So, it will be good for everyone if AFSPA is looked through the same perspective and constitutional morality and non-arbitrariness are taken into consideration with other modern approaches which the Supreme Court considers important for a democracy.

Basically, it would mean that AFSPA needs to be repealed because of the reports submitted by various committees and incidence happened from the early 1990s. This way only the morale of the armed forces will be broken if they are held accountable for actions they had taken under AFSPA. The important thing to take into account is that just amending the act will not solve the problem as there are many gaps which cannot be filled up by amending the act. It is important for the government to know that the rights of the people are to be protected and for that AFSPA needs to be repealed. It is not only that the fundamental rights of the citizens are violated but also it is against the Universal Declaration of Human Rights which India has signed. Also, what has happened in Kashmir has also highlighted the situation prevalent in the state from July in the year 2016 to April 2018. It also raises serious concerns about the activities that Pakistan carries on in the parts of Kashmir.

Conclusion

It is now very important to note that time has come and there is an urgent need to take into account the human rights violation happened in the past and is still being carried because of conflict of interest. And any decisions taken to resolve the situation prevalent in Kashmir should lead to the end of violence in Kashmir especially keeping in view the political conflict. Office of the United Nation Human Commissioner (OHCHR) reports also shows the increase in violence like shooting that has led to the casualties that eventually injure the civilians and has displaced many people that lived across the Line of Control. The experts on human rights including the experts from OHCHR say that the restrictions imposed on having access to Kashmir imposed by the government of India and government of Pakistan has led to hindrance in the work of the journalist and other organizations that are working for the good. And removing the restrictions imposed by the government in parts of Kashmir would lead to development in Kashmir and will give more transparency which would eventually lead to the growth.