This article is written by Reeti Prakash. 

Introduction

On scratching the surface of the complex matrix of cultural identities stemming right from their folklore and mythology, the Seven Sisters (seven states) of Northeast India are a beguiling yet grotesque reality of India’s “Unity in Diversity”. Owing to the heterogeneous, linguistic and cultural religious faiths in the valley, the stage for a plurality of transitional continuum for community and collectivity of a nation is deeply impacted, as different lifestyles support different ideologies and thus a different image of a nation emerges from different cultural groups.

This heterogeneity further builds up to create a culturally hegemonic discourse, resulting in a perpetual and prolonged social unrest. Needless to mention, the acts of legislature in this respect are primarily aimed to curb down the cultural anarchy and social turmoil. This article is an attempt to analyze the constitutionality of the much-debated implementation of the Armed Forces Special Powers Act, 1958 in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura and suggest viable amendments to the same. It would also plunge into the integral courts of the Indian Armed Forces and analyze how credible and neutral are the Court Martial Proceedings.

History of the Armed Forces Special Powers Act, 1958

As highlighted by Duncan McDuie-Ra, a sociologist whose research interest lies in exploring lifestyles in remote areas and borderlands, explains the possibility of victimization of the people of Northeastern States in terms of their location, cultural, geographical, ethical, social and territorial alienation from the mainland Indians is high. He feels that the Northeastern states of India have and will always be an alien land to the mainstream society of India. He owes these differences not only to the geographical distances but also due to different cultural and social mindsets stemming from the same and writes:

“While regions and people throughout India are constructed and viewed differently to each other and those differences are pronounced and often articulated forcefully at the local level, they still fit into the larger nation, although rarely seamlessly, in the ways the Northeast does not.”

However, contrary to Duncan’s beliefs, the Union had plans otherwise and had started making efforts of unification of the Northeast both politically and geographically and had an aim of a single idea of nationality.

Historical Background

Going back to the roots and studying the genesis of the act, the origin of the present Act can be traced to the Armed forces Special Powers Act, 1948, which was an amalgamation of three ordinances – The Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, The Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, the United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance which were formulated by the central government with an aim to curb down internal disturbances within the country in 1947.

As a matter of fact, the Armed Forces Special Powers Act of 1948 was modelled on the basis of the Armed Force Special Powers Ordinance of 1942, which was set together by the British on August 15, 1942 to suppress the Quit India Movement, thus implying the use of “special powers” bestowed upon “officers” of the armed forces to curb down the unrest during an “emergency”. These “special powers” included use of force to an extent of death of the person, who does not halt or discontinue his act when challenged by a sentry or an army personnel or causes damage to property or resists an arrest. These officers were exclusively deputed by the Union of India.

This boils us down to the conclusion that the ordinance provided an absolute immunity to army personnel deployed under this Act, and it is implied that all the laws formulated in that era were made on the requisition of the legislation, keeping in mind the higher pedestal of the British Officers and thus promulgated the distinctive line of hegemony between a country’s government and its citizens, as popularly perceived by the masses.

It must be emphasized on the fact that several attempts were made to amend the then existing Armed Forces Special Powers Ordinance post-independence. With the formation of a strong rebellious army from the Naga Community in the Naga Hills, and the upsurge of a parallel government called the Naga Nationalist Council (NNC) on March 22, 1956 in the backset, the state administration found itself incapable of controlling the unrest and requested central assistance. 

Responding to the request by the state government, the center deployed the army in order to restore normalcy in the conflicted region. Following these circumstances, the then President of India promulgated the Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22, 1958 in order to bestow upon the armed forces some “special powers” and a legal framework to function strongly in the “disturbed area” of Assam and Union Territory of Manipur.

The impugned ordinance when presented in the Monsoon Session of the Parliament of 1958 saw supporting and contrasting arguments. While the Home Minister G. B. Pant highlighted that the Bill would function effectively in a situation marked by arson, looting and dacoity, a lot of numbers highlighted the arbitrariness of the Bill and stated that giving such sweeping powers to the armed forces would result into violation of fundamental rights of the masses and would allow the government to circumvent the Constitution to impose an emergency without declaring it.

Nevertheless, after dissecting and balancing the potential outcomes of the Bill, it was passed by both the Houses of Parliament with a retrospective effect from May 22, 1958 after being assented by the President on September 11, 1958, the Armed Forces Special Powers Act, 1958 came into being. It was applicable on Assam, Manipur, Mizoram, Arunachal Pradesh, Meghalaya, Nagaland and Tripura.

Constitutional Values and Humanitarian Laws Violated by Armed Forces Special Powers Act

If one follows the discussions on the Armed Forces Special Powers Act on media channels or online social media platforms, it is easy to come down to the conclusion of the Act being draconian, arbitrary and dictatorial. As pointed out by Nasir Ahmad Lone and Vikas Bhandari, the rights granted by the Constitution are waived off  and custodial deaths, fake encounters, rape, torture, mysterious disappearances and unmarked graves are a spine chilling yet common features of these “disturbed areas” under the act.

In view of the blatant violations of the fundamental rights and unaccounted mysterious deaths as well as disappearances in the picture, various international organizations like Amnesty International and Human Rights Watch came forward to fight for the rights of those affected under this act. As argued by Attar Rabbani, the Act renders meaningless the Fundamental Right of Peaceful Assembly (Article 19(b)), Protection in Respect of Conviction of Offences (Article 20) and Remedies for Enforcement of Fundamental Rights (Article 32) of the people residing in “disturbed area” as defined the Act.

Moreover, it also poses a threat to other human rights and humanitarian laws. It has also been argued that the Act, by its very essence, violates the Universal Declaration of Human Rights (UDHR), the UN Body of Principles for Protection of All Persons under any form of Detention and the UN Principles on Effective Prevention and Investigation of Extra-Legal and Summary Executions.

Powers under the Armed Forces Special Powers Act

On dissecting the Armed Forces Special Powers Act, 1958, it is observed that it confers upon the members of the armed forces in disturbed areas, certain special powers which helps them function as an aid to the civil administration and their own protection against the militant activities. The authority of declaring a State or a Union Territory a disturbed area is given to the Governor of the State or the Administrator of that Union Territory or the Central Government, by a notification in the Official Gazette.

Any commissioned officer, warrant officer, non–commissioned officer or any other person holding an equivalent rank within the armed forces, may use force to an extent of causing death or fire upon someone, prohibiting the assembly of five or more persons, carrying of weapons/firearms/ammunition/explosive substances for the maintenance of public order. He also has the power to arrest a person without a warrant who has committed a cognizable offence or if a reasonable suspicion of commission of a cognizable offence exists against that person.

Moreover, he can also enter and search without a warrant any premises to make any such arrest or recover a person who is believed to be wrongfully restrained or confined. These powers let the officers legally bypass the rules given under CrPC which is established in accordance with due process of law. However, it must be emphasized upon the fact that the laws and rights applicable in a mainstream social setup cease to exist in tense situations like these, giving the disputed act certain grounds for rational reasoning and justifying its implementation.

In light of Part III of the Constitution, focusing on violation of the right to equality under Article 14 of the Constitution, it can be claimed that the citizens of the disturbed areas are not given equal treatment when compared to citizens living in the mainland areas of the country. On application of Doctrine of Natural Justice which rests on the pillars of nemo iudex in causa sua (rule against bias) and audi alteram partem (right to fair hearing), it should be emphasized that “In a situation of national security one cannot insist for the strict observance of the principles of natural justice”. Moreover, on application of the Test of Reasonability for Equality, which sought to determine that the law must not be arbitrary and should be rational, requires the fulfillment of the following two parameters:

1. The classification must be founded on intelligible differentia which distinguishes those that are grouped together from others.

In view of the Act in speculation, the classification of differential groups is clear from the fact that the citizens residing in the “disturbed areas” under the act are sacrificing their rights when compared to those living in areas where there is no deployment or internal conflict.

2. The differentia must have a rational relation to the object sought to be achieved by the law under challenge.

On focusing on the rationality of the law, the primary aim of the implementation of the act must be looked into. The aim of the Act in question is national security, which justifies the implementation of the act.  Thus, it can be claimed that the Act fulfills both the parameters of the Reasonability Test.

Thus, it should be claimed that the Armed Forces Special Powers Act stands in violation of the fundamental rights and hence, under Article 13(1) of the Constitution, which talks about the laws in contravention and inconsistent with Part III being void.

In light of the parti pris essence of the act, a number of scholarly and academic debates have taken place, resulting in a widespread notion of the act being draconian, dictatorial and inhumane in nature. As argued by Rashida Manjoo, the United Nations Special Rapporteur on violence against women, the Act has resulted into the violation of human rights broadly. She calls out for the repeal of the Act as she believes that the interpretation and implementation of the Act is dissolving the exercise of fundamental rights and freedoms in the disturbed areas.

These rights include freedom of movement, association and peaceful assembly, safety and security, dignity and bodily integrity rights for women. Countering this argument, it can be stated that the safety of masses and maintenance of reasonable extent of public order would be prioritized over freedom of movement and association not only by the local governing body but also by the citizens of that disturbed area.

Recommendations by various Commissions

In light of the applicability of international laws in situations of armed conflict, it was initially held that International Human Rights Laws do not apply to situations of armed conflict in a country, which are specifically governed by International Human Rights Law. However, the distinction is now done away with and thus it is widely believed that International Human Rights Laws apply equally in situations of armed conflict in a country.

As highlighted by Amnesty International India, the Armed Forces Special Powers Act not only legitimizes impunity for sexual violence among women but also opens up the floodgates to extrajudicial killings in the declared disturbed areas. It is imperative to mention the reports of The Justice Verma Committee, The Justice Jeevan Reddy Committee and Justice Hegde Commission.

The Committee on Amendments to Criminal Law (also known as the Justice Verma Committee) was a three-member committee headed by the retired Supreme Court Judge, Justice Jagdish Sharan Verma, formulated by the Central Government to review the laws against sexual assault in December, 2012. In the exhaustive 657-page report rolled out by the committee, it is mentioned about how the Armed Forces Special Powers Act legitimizes the immunity against sexual violence against women and how marginalized and neglected are the legal aids given to women in disturbed and conflicted zones.

It emphasized on how the women in conflicted areas are equally entitled to security and dignity as they are in mainstream lands of the country. In its recommendations, the committee talked about how such offences must be brought under the purview of the ordinary criminal law. An amendment to the AFSPA to remove the requirement of prior sanction from the Central Government for prosecuting security personnel for certain crimes involving violence against women was also recommended.

Insofar the Justice Hegde Commission is concerned, it primarily talks about the lack of enforceable safeguarding rights at the root level against the “sweeping powers” given to the armed forces. Along the same lines, The Justice Jeevan Reddy Committee appointed by the Central Government, headed by Justice B P Jeevan Reddy with an aim to review the act, said how the impugned law had become “a symbol of oppression, an object of hate and an instrument of discrimination and high headedness” and suggested that the act should be repealed.

Case Laws

However, the Centre emphasized on adhering to the implementation of such an Act as it fulfilled the main reason behind its existence – National Security. In light of the constitutionality of the Armed Forces Special Powers Act, a strong pillar on which the existence of the act exists despite multiple claims of it being insufficient according to the Indian Rule of Law and human rights is the landmark case of Naga People’s Movement in Human Rights v. Union of India, where the constitutionality and the application of the Armed Forces Special Powers Act on the states was questioned.

In view of the surrounding facts and circumstances of the case, it was held that the Parliament was competent to enact the Armed Forces Special Powers Act in exercise of the legislative power conferred on it under Entry 2 of List 1 (which talks about Naval, Military and Air Forces or any other Armed Forces of the Union) and Article 248 (elucidates the parliamentary power to make any law with respect to any matter not enumerated in the Concurrent or state list), read with Entry 97 of List 1 (any matter not enumerated in list 2 or list 3).

Moreover, the expression “in aid of the civil power” implies the armed forces will function in aid to the civil forces/local administration of the state and not take over the full autonomy of governance of the disturbed area, and the civil power will continue to function. Furthermore, the Central Act (Armed Forces Special Powers Act) cannot be regarded as a colorable legislation or a violation of the spirit of constitutionalism. It is not a measure intended to achieve the same result as contemplated by a Proclamation of an Emergency under Article 352 or a proclamation under Article 356 of the Constitution.

Another case law army favoring the implementation of the Armed Forces Special Powers Act and highlights the attempts to bring forth potential voids in the application of the act is the Extra-Judicial Victim Families Association (EEVFAM) v. Union of India, where the judgement is the partial verdict in a petition challenging the acclaimed “ fake encounters” in Manipur state by the police and armed forces.

“On 30th March, 2013 the States Human Rights Commission submitted its report of “fake encounters” by the Indian army and the case was taken up on 4th April, 2013. While recording its gratitude for the painstaking effort put in by the Commission, it was found that in all the six reported cases, the killing of the victim was not in any true encounter with the police and the security forces.” Hence it was concluded that the facts and numbers presented before the court were fraudulent in nature and out of the reported 1528 encounter cases, the number of actual victims is yet to be recorded.

Dos and Don’ts by the Supreme Court

Moreover, The list of Dos and Don’ts drafted under the directions of the Supreme Court gives an outline of the protocol to be followed by the armed force personnel when deployed in a “disturbed area” under the Armed Forces Special Powers Act. It elucidates the line of action before the operation, during the operation, after the operations and guides as to how to go about the due process of the civil courts if in case any legal complexities arise from the encounter. It also clearly mentions the acts and conducts to be steered clear of throughout the duration of deployment.

Furthermore, it also explicitly explains the line of action as well as the code of conduct to be followed when providing aid to any civil authority. In light of popularly acclaimed “inhumane” conduct and misuse of “unquestionable powers” availed by the security personnel, some instances of “don’ts” under the list include abstinence from use of excessive force, physical struggle with the mob, harassment and torture of the civilians. Thus, keeping in synchronization with the international treaties, The Armed Forces Special Powers Act, under its List of Do’s and Don’ts issued by the Army Headquarters, upholds the ideology of the Geneva Convention along with Principles of International Humanitarian Law and reflects that killing an “enemy” is not the only available solution and hence restraints the armed forces personnel from using excessive force on the civilians even in a distressed situation posing a security threat to the nation.

These instructions are treated as binding instructions which are required to be followed by the members of the armed forces exercising powers under the Armed Forces Special Powers Act and a serious note is taken to the violation of the instructions and the persons found responsible for such violation are suitably punished under the Army Act, 1950.

Shifting the focus of the article from an imperial research perspective and stepping into the shoes of an inquisitive citizen and having conversations with the officers of the armed forces on a personal level to get to the ground reality of all the paperwork, it was observed that the opinion of the masses when asked personally took a departure from the commonly accessible articles and literature pieces to the mainstream society, written by the elite section of the society of the disturbed area.

When asked about their experiences of agitation from the citizens on the implementation of the Central Act, it was recorded that the majority of masses blindly supported and resorted to the agency deployed by the Central Government in place of the local administrational authorities. A number of police stations went defunct in times of turbulence, which reflects the poor state administration and implementation of laws by the state. Owing to the cultural differences and inter-tribal tensions, the public stopped relying on the local instruments of administration.

It was further noted that the states witnessed a dramatic fall in militancy episodes once the army was completely deployed in the “disturbed areas”; there was a rapid economic growth observed from 1999 to 2015, once the army, along with the local governing authority and police had stabilized the social militancy eruptions and had later started to coexist with the citizens. It was also noted that the act was waived off for a period of six months (as the period of renewal for the title of “disturbed area” under the act is six months), where great economic hikes, cultural interactions and social stabilization to a great extent was observed.

The establishment of government institutions like Indian Institute of Management, National Institute of Fashion Technology and other such central government institutions were also observed, which is indicative of economic progress, increased literacy rate, and resonance of national identity with the mainstream Indian lands was also observed. Insofar, the legal affairs of armed forces and the fundamental right violations are concerned, there was a steep fall in human rights cases after the 1980s. However, recent cases related to the issues discussed above still exist and are being looked after in the respective courts.

The above arguments boil us down to the conclusion that the Armed Forces Special Powers Act is not just a law for protection, but also an organic framework governing the state and livelihood of the people when it comes to the North-eastern states. It can be observed that there are a plethora of reports as well as conventions standing against the implementation of the act, however, the ground reality of the disturbed areas as well as the internal laws dictate a protocol which is strictly adhered to, which gives human rights the paramount importance, as long as it in conjugation with the welfare of the nation.

Possible amendments to the present act and surrounding factors include strengthening of local administration authorities, efficiency in state police recruitment and training, drafting and implementation of more female-centric laws aiming towards the safety and well-being of women in such disturbed areas, inclusion of local police authorities to every encounter to ensure a transparent working of officials/sentrys under the Act and implementation of more stringent rules when it comes to interaction of armed force personnel with the civilians.

Conclusion

The article dealt with a wide spectrum of issues, regarding discussion of the Armed Forces Special Powers Act in view of violation of fundamental rights.

In light of the above discussion on the Armed Forces Special Powers Act, it was observed that there are authorities of national as well as international importance suggesting a repeal of the act on the grounds that it violates Human Rights in its due courses. However, we also discussed about the principles and lists commanding and guiding the act and processes under it at every step, which are implemented for the soul purpose of national security. Thus, keeping in view the national security and the welfare of the citizens as a whole, the implementation of the Armed Forces Special Powers Act is justified.

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