In this blogpost, Priyanka Kansara, Student, National Law University, Jodhpur writes about the Armed Forces Special Power Act, and analyses the problems faced which arise while dealing with it in practical situations, and how the Armed Forces Personnel misuse the powers given to them by this Act.
The Constitutionality of the Armed Force (Special Power) Act
The borderline between Law and politics in the area of civil liberties and human rights is so narrow that the influence of one on the other cannot be ignored. The interference with any aspect of an individual’s life requires the strongest justification.
The intention behind enacting, the Armed Force Special Power Act, 1958 (hereinafter referred as the Act 1958) was basically to put a control on the Quit India Movement; but the recent developments or rather the loopholes give the Governor, of those states or Union Territories, the power to declare those areas as disturbed areas, and empower the armed force to take actions so as to ‘maintain law and order’ in those
The Act confers certain special powers upon the members of the armed force in disturbed areas state of[1] [Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura]. The Act aims to suppress the disorder and to restore and maintain the public order in the disturbed areas. The word ‘Disturbed Area[2]’ was though not significantly defined. It vests powers on the Central Government for the same.[3] In the case of Indrajit Barua vs. State of Assam,[4], Hon’ble Delhi High Court stated that the lack of precision in the definition of a ‘disturbed area’ was not an issue because the Government and people of India understand the meaning of it. But in the case of Menaka Gandhi vs. Union of India[5], it was also held that the restriction imposed on the Fundamental Rights should be just, fair and reasonable. A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.
The Act provides sweeping powers to soldiers, including the power to shoot, to kill in certain situations, and to arrest people without warrants. The law has facilitated grave human rights violations, including extra-judicial executions, enforced disappearances, rapes and tortures and other ill-treatments. Section 3 of the Act empowers the Central Government to declare, suomoto, any area in North East area as disturbed and call upon armed forces to ‘aid’ civil administration in order to maintain law and order in the state. On 7th April 2015, the 12 districts of Arunachal Pradesh had been declared as ‘disturbed areas’; similarly, on June 2015, the Union Home Ministry had declared whole of the Nagaland as a disturbed area for a further period of one year, which means that the Armed forces will get power to search, raid, arrest without a warrant and will allow them to use force by the army personnel even to the extent of causing death, against one who puts law and order in disturbed area, in peril. These are not the only incidents wherein the Government had declared some areas as ‘disturbed areas’; in 1955, Naga inhabited areas of Assam were declared ‘disturbed area’ under the Assam Disturbed Areas Act, 1955. In 1958, the Armed Force (Special Power) Act took up the position to regulate the ‘disturbed areas’ of Assam.
The abuse of power enshrined under this Law by the Army Personnel can be misused in rampant fake encounters, molestation of women, and illegal detention of the civilians in the name of maintenance of law and order in the area.
The Constitutionality of the Act was challenged in the case of Naga People’ Movement of Human Rights vs. Union of India[6], wherein the Supreme Court of India upheld the Constitutionality of the Act but laid down certain measures so as to prevent the unlawful encroachment of the Civilians’ Fundamental Rights, such as, a suomoto declaration can be made by the Central government. However, it is desirable that the state government should be consulted by the central government before making such a declaration. The Act of 1958, does not confer arbitrary powers to declare an area as a ‘disturbed area, it was stated by the SC that the declaration has to be for a limited duration and there needn’t be any periodical review of the declaration; it was also stated that the authorised officer should use minimal force necessary for effective action; and the authorised officer should strictly follow the ‘Dos and Donts’ issued by the army.
The AFSPA and various Committees’ Report
The Committee on Amendments to Criminal Law (popularly referred to as the Justice Verma Committee), 2013 stated that the AFSPA legitimised impunity for sexual violence, and recommended an immediate review of the continuance of the Act 1958 in internal areas of conflict. Currently, the Armed Force (Special Power) Act in conflict areas needs to be reviewed; it requires a sanction by the Central Government for initiating proceedings against Armed Force Personnel[7]. The Committee had recommended that the requirement of the prior sanction of the Central Government for initiating proceedings against Army Personnel should be specifically excluded in case of charges against sexual offences.
As per the Committee’s recommendations 2013, an amendment to the Code of Criminal Procedure, which removed the need for prior sanction for prosecuting Government officials for certain crimes involving violence against women, including rape, sexual assault, sexual harassment, voyeurism and stalking, was introduced in the Criminal Amendment Act 2013, the Act should also be amended on the same tune with respect to the Armed forces Personnel.
Furthermore, Justice Jeevan Reddy Committee (2005) made an alarming statement on the unfettered powers vested in the Act; it was mentioned that “the law had become ‘a symbol’ of oppression, an object of hate and an instrument of discrimination and high-handedness”. The Committee came with certain recommendations such as, the Act 1958 should be repealed and certain provisions should be added to the Unlawful Activities (Prevention) Act, 1967; the Act 1967 should be modified in order to have a clarified specification on the powers of the Armed Force Personnel in those areas; and grievances cells should be set up in each district where the Armed forces are deployed.[8]
A welcome step
The positive step towards the abolition of the ‘draconian law’ came when the State Government of Tripura, decided to withdraw the law, which had ruled with the sweeping powers and judicial immunity to security forces in conflict-hit areas for 18 years.[9]
What we learnt from Tripura is, to review whether we really need this Legal Provision for the maintenance of law and order, though the situations in those areas are quite delicate, this can be resolved by other ways so as the Fundamental Rights of the Civilians can be protected and the Rule of Law can be maintained.
What we need to do
Unlawful detention is the one of the biggest hurdles in the Human Rights in the matters of AFSPA; it was also stated in the case of Horendi Gogoi vs. Union of India[10] by Hon’ble Guahati High Court, it was held that in the case of arrest of any person, Army authority is duty bound to hand over the arrested person, to the officer-in-charge of the nearest police station with least possible delay[11].
The legal implementation of the Act is necessary, as the restrictive and protective measures are provided under the Act only, such as, a due warning should be given before taking any action i.e. firing, or using force against any person/s, and the arrest can be made only if there are some reasonable suspicion that the person had committed some cognizable offence.
The inhuman behaviour of Army Personnel is not just because of this Act, sometimes the overburdened situation and the training also becomes a reason for those grievous incidents. We need to have a Humanitarian Forced Power, which is trained in the fundamental principles of criminal jurisprudence, in line with the already established and celebrated Constitutional provisions relating to the Criminal Jurisprudence, simplification of judicial procedures and practices, uncomplicated and inexpensive justice system. Hon’ble Gauhati High Court in Luithukla vs. Rishang Keishing[12] while addressing the same issue stated: “the Armed Force could work in harmony when they deployed in disturbed areas”. And this can only be done by sensitization of the armed personnel towards the humanity and civil liberty. Sensitization of Army Force Personnel is the need of hour so as to maintain the humanity over the ghastly impact of this law.
[1] Subs by Act.69 of 1986.
[2] The Armed Force Special Power Act 1958, s. 2 (b).
[3] id., s. 4.
[4] AIR 1983 Delhi 513.
[5] AIR 1978 SC 597.
[6] (1998) 2 SCC 109.
[7] Supra Note 2, s. 6, the AFSPA, 1958.
[8] All you wanted to know about AFSPA, PRS Legislative Research, November 16, 2011, http://www.prsindia.org/media/articles-by-prs-team/all-you-wanted-to-know-about-the-afspa-2051/ (accessed on Deccember 9, 2015).
[9]AFSPA withdrawn from Tripura after18 years, FirstPost (May 28, 2015), http://www.firstpost.com/india/afspa-withdrawn-tripura-18-years-2266620.html (accessed on December 9, 2015).
[10] (1991) Gau CR 308.
[11] Supra Note 2, s. 5, the AFSPA 1958.
[12] (1988) 2 Gau LR 159.
