This article is written by Moumita Mondal who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

Indian Army is known for its no civil casualties. Today, the globe appreciates the tasks performed by the Indian Army to counter every situation when it involves the safety of the state.

The Armed Forces (Special Powers) Act, 1958 was passed by the legislature whose main concern was to ascertain peace within the region where terror attacks were carried out. It also highlighted the atrocities of the armed forces when this act was actively imposed at the beginning without any restraint pertaining to the laws.

This article will help the readers to understand the meaning, purpose, constitutionality, and provisions of AFSPA.

About AFSPA

What is AFSPA

The Armed Forces (Special Powers) Act, 1958 was passed by the Parliament which grants special power to Indian Armed Forces to carry tasks in disturbed areas without any involvement of the State Government or police. The person arrested by the Army had no remedy to move to the court and wasn’t presented before the magistrate. Section 2 includes the definitions of armed forces, disturbed area, and all the words and expressions used in this act but does not include any definitions within the Airforce Act and Army Act as other meaning is already expressly laid out in respective of these Acts.

In simple words, the disturbed area means the region or part under India where the peace is disturbed due to violence carried by the terrorist for a long period.

Section 4 of this Act gives special powers to the person who is in a position of commissioned officer, warrant officer, non-commissioned officer, or any person who is equivalent to the rank of the armed forces.

After one year of imposition, the Central government added Do’s and Don’t’ s in this Act.

Origin of AFSPA

In order of incapability to maintain the area, the State Government expressed to seek help from the Central Government to establish peace in that concerned area. Upon the guideline of the Central Government, the Parliament passed the AFSPA which the objective was to set up law and order in the governing territory under India.

After the enactment of this Act, it was first imposed in the north-east states such as Manipur, Assam, Arunachal Pradesh, Nagaland, etc.

The person arrested had no right to move to the court. In other words, the fundamental rights of the person arrested were infringed by this Act during its imposition in 1990.

On seeing the arising atrocities of the armed forces, the Central government introduced provisions of Do’s and Don ’t’ s to limit the power exercised by the armed forces.

Provisions relating to AFSPA

Section 2 explains the meaning of  Armed forces and Disturbed Area. The Armed Forces includes the Army, Navy and Air Forces which function accordingly under the Central Government. This Act has also explained the meaning of Disturbed Area as the area where the terror activities are carried out against the State which is uncontrollable by the State Government of that territory or part under India and requires a special attention of Armed Forces to maintain peace and order.

Section 3 gives special powers to the armed personnel who is designated as commissioned or non commissioned officer or any other rank similar to the person holding a commissioned rank  or non-commissioned rank of officer in Armed forces to perform the following steps independently:

• He can fire or use any method to stop or cause death of the person or the unlawful assembly to carry any plan where the weapon or explosives to be used.
• He can destroy any hiding spots where he is in opinion that the group involving in terror activities may use for training or shelter and, in other way, if he believes that a criminal has escaped after commiting a crime.
• He can arrest that person if he believes that the person can execute or has already carried out the cognizable offence.
• He can carry out a search of the place of such a person if he believes that any person is detained illegally or is in the belief that any arms, weapons or explosives may have originated from that place, where it was stored for later use.

Section 5 of this Act says if a person is arrested by the armed forces, then the armed forces must take to the police station and deliver the arrested person to the charge of the police station.

Provisions of AFSPA in relation to Jammu and Kashmir

The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 is broadly enacted where additional provisions were inserted.

The following provisions related to the imposition on Jammu and Kashmir under this act are:

1. Section 3 proclaims the Jammu and Kashmir as disturbed areas if the governor of the State or the Central Government is in the opinion that the State is disturbed and there is the necessity to seek help from the armed forces to prevent- 

• The terrorist activities which out blow the government or creates a fear among the people or any group of the people or estrange the group of the people or prejudicially affect the harmony among different groups of the people.
• The activities which disrupts, disclaims, and questions the sovereignty and national integrity of India or brings cession of a part of the territory of India or breaks off a part of the territory of India from the Union or offends the Indian National Flag, the Indian National Anthem and the Constitution of India.

2. Section 5  grants power to the person to break the lock of any door, almirah, safe, box, cupboard, drawer, package, or other things while searching if the key is refused to be given.

3. Section 6 says that a person arrested will be taken to custody and every possession, arms, ammunition or explosive material or any vehicle or vessel confiscated under this Act with a minimum delay within reach, with the specific reason of arrest will be handed over to the police officer in charge of the police station.

4. Section 7 says that no person is entitled to move to court or claim proceedings without the official permission of the Central Government.

Is AFSPA in accordance with the Army Act?

The Army Act, 1950 is an Act implemented which includes the provisions and rules regarding the regular Army. Section 3(i) of this Act defines the meaning of Active service. Active service means the army personnel who are currently engaged in operations against the enemy or have been assigned a duty to engage in military operations or the line of control or has been assembled with the military work abroad. Section 3(x) defines ‘enemy’ which includes all the armed mutineers, armed rebels, armed rioters, pirates, and any person in arms against whom it is the responsibility of the military to take action.

The Army Act also specified the term of commissioned officer, non-commissioned officer and states their functions assigned to them which may also be discharged.

AFSPA gives special power to the military personnel who are active in service which clearly states that the person serving the Army actively regularly is considered to carry the operation as per this Act. The military personnel who are not deemed fit for service in operational areas are not allowed to volunteer in such operational areas. And, also the retired military personnel are not included in the definition of active service as per the Army Act, 1950.

AFSPA empowers the Army to conduct military operations without any involvement of any administration or Governor of the State or the State Government. The Army Act strictly specifies the rules of the military personnel to be performed concerning any task assigned during service.

Hence, the Armed Forces (Special Provisions) Act is following the Army Act.

Constitutionality of AFSPA

Article 21 says that no person must be underprivileged of his rights of life and personal free will except the directions created by law.

Article 22 states the steps necessary to be followed which was passed by the legislature. Under this Article, the steps to be followed when a person is arrested are:

1. He has the right to be informed about the reason for which he is arrested.
2. He has the right to choose his lawyer who can act on his behalf.
3. He has the right to be presented before the Magistrate within 24 hours of the arrest.
4. He cannot be detained without the directions of the Magistrate.

The above steps are applicable for both arrested persons whether he is a citizen of India or belongs from a foreign country.

The main objective to enact Article 22 of the Indian Constitution was to protect the people from unnecessary detention which might lead to injustice. For instance: A Pakistani national was arrested in the case of the Bombay terror attack where the Constitution allowed him to seek his lawyer as per his choice. He did not want the Indian Lawyer to represent his case. So, he expressed his opinion to be represented by the lawyer from Pakistan but the aid was profusely denied from his home country. Later, he decided to hire a lawyer to appear on behalf of him. Therefore, he was not deprived of his right to seek legal remedy under Article 22. 

When the AFSPA was in force, the people were deprived of Article 22 which led the armed forces to do anything they feel like. There were no limitations to these provisions under this Act. After the reported incident, protests were arising which led the government to insert some restraints on the special powers of the armed forces under this Act.

The Terrorist and Disruptive Activities ( Prevention) Act, 1987 (TADA) was executed in Jammu and Kashmir, Punjab, and the north-east areas which were assigned to prevent the terror acts. The solution to restoring freedom was still available to arrested persons.

Article 34 says that the Parliament may reimburse the person during his service under Union or the State to restore or preserve the order when the martial law being in force and thus the effect of the indemnity can be taken by any sentence passed, the punishment imposed, instructed to forfeit or other act. This is only applicable to the members of the Armed Forces involved in restoring the order of the area within India. So, no question can be raised on the order passed by the Parliament.

Article 355 says that it is the responsibility of the Union to protect its nation against external aggression and internal disturbance.

Case Laws

• In Naga’s People Movement, Of Human… vs Union of India, 1997, many writ petitions were filed which probed the authenticity of the Armed Forces (Special Provisions) Act, 1958 and the Assam Disturbed Areas Act,1955. The petitions were filed upon seeing the injustice faced by the people of the disturbed areas. Based on the report, the inquiry found that the complaints were filed whenever there is a misuse of power but on the other side, many complaints were found false. Thus, it was held that the armed forces must function according to the Do’s and Don’ts while using the special power under this Act.
• In Indrajit Barua vs. The State of Assam And Anr, 1983, a writ petition under Article 226 of the Indian Constitution was filed to confront the orders passed by the President for the imposition of the Armed Forces (Special Provisions) Act. It was held that Section 4(a) of Armed Forces (Special Act), 1958 and section 4 of the Assam Disturbed Areas Act will remain in force but the limitation was to be considered to prevent the further misuse of power.
• In People’s Union For Human Rights vs. Union of India And Ors, 1991, the question was raised that could armed forces arrest a person, male or female without the involvement of the Police Authority or not. It was held that any person whether male or female can be arrested without the consent of the Police Authority during the time and place of which the act being in force.

Conclusion

Every individual has the right to enjoy the freedom and also to secure personal liberty. The Constitution of India has mentioned many provisions in which the citizen and non-citizens have the absolute right to enjoy and seek remedies. But certain restrictions were also put on these rights so that the harm is not caused to all due to the act of one person. 

It was a time when AFSPA proved itself to be dangerous when it was enacted without putting any limitations. It was necessary to put such provisions that do not infringe the right of freedom of human beings. On the other hand, many scholars and lawmakers were aware that the total abolition of AFSPA would not benefit and further, resulting in the rise of uncontrollable situations in the disturbed area. Thus, the Central government Do’s and Don’ts to keep a check on the powers exercised by the armed forces.

Therefore it is important to note that before introducing any Act, the powers and limitations should be mentioned in such a way that it goes parallel with each other.

References

• http://www.legalserviceindia.com/legal/article-212-afspa-and-human-right-.html#:~:text=AFSPA%20stand%20for%20the%20Armed,was%20implemented%20in%20the%201990%20.
• https://www.prsindia.org/media/articles-by-prs-team/all-you-wanted-to-know-about-the-afspa-2051
• http://legislative.gov.in/sites/default/files/A1958-28.pdf
• https://indianarmy.nic.in/writereaddata/documents/ARMYACTS190216.pdf

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