AN ANALYTICAL STUDY OF AFSPA IN CONTEXT OF PROCEDURAL AND INVESTIGATIVE POWERS BY: GAURAV
AN ANALYTICAL STUDY OF AFSPA IN
CONTEXT OF PROCEDURAL AND INVESTIGATIVE POWERS
AUTHORED BY: GAURAV
ABSTRACT
In the
world’s largest democracy, where the Legislature and the Judiciary have
continuously thrived to secure the fundamental rights and civil liberties
guaranteed by the Constitution of India, the Armed Forces (Special Powers) Act
enacted in 1958 wherein some special investigative and procedural powers have
been conferred upon the armed forces have been a controversial subject over the
years. Time and again, it has been opined that these special investigative and
procedural powers are derived from an ambiguously drafted set of rules leading
to human rights violations and thus it often leads to the question as to what extent
these powers can be exercised and should the personnel exercising such powers
be held accountable for any mischief against any person done in the name of the
national security. The researcher aims to study AFSPA brought in force for the
purpose of national security, extra-ordinary powers provided therein, the need
for them and the grey areas that often result into exploitation of fundamental
rights of people. The paper also discusses the landmark cases on the issue.
INTRODUCTION
"External
affairs will follow internal affairs.
Indeed,
there is no basis for external affairs if internal affairs go wrong."
Insurgency
and regional conflicts leading to violence in the border area situated states
is not something new. Besides the external threat from the neighboring
countries, India has been witnessing continuous internal threats from various
militant outfits and insurgent groups. Such threats require a timely response
and for that, some special investigative powers have to be conferred upon the
authorities so that they can bypass the procedural hurdles laid down by the
ordinary law of the land in order to deal with the threat effectively. Such
kind of attacks emanating from within the national boundaries pose a greater
threat to the security and unity of a nation and therefore flares up
discussions with as to how the ‘internal security’ shall be maintained. This is
why the use of armed forces was felt necessary in some areas to regulate the
internal affairs. So, taking into consideration the insurgency incidents and
the geopolitical situation of India where the neighboring countries
continuously attempts to disturb the public peace and tranquility, various
legislations has been enacted for the purpose of securing the national
security, AFSPA being one of them.
AFSPA is a
legislation which enhances states’ power to arrest, investigate and to search
any place. AFSPA can be traced back to the times of British rule in the year of
1942 when an ordinance called the Armed Forces (Special Powers) Ordinance was promulgated
by the Britishers to suppress the Indian freedom movement. Initially, it was
Armed Forces (Assam and Manipur) Special Powers Act, 1958 applicable to only
Assam and Manipur. It was adopted during the times of Naga rebellion. It was
initially proposed that the Act would be revoked after a period of 12 months.
However, the Act continued to remain in force in both the States and was also
extended to other “disturbed” areas of the neighboring States. It was later
renamed to Armed Forces (Special Powers) Act. It has been amended several times
to add new States under its ambit. In the 72nd amendment, the states
of AP, Meghalaya, Mizoram, Nagaland and Tripura were also brought under the
purview of AFSPA. In 1983, it was invoked in the State of Punjab and Union
Territory of Chandigarh and by the time in 1990 it was invoked in J&K as
well to control the rising insurgency incidents. Several governments in the
past decades has advocated for the AFSPA as an effective means to prevent
terrorist activities and to prevent people from carrying out activities
threatening the integrity of India and to prevent states from succeeding from
the Union of India. Under AFSPA, government has been provided with the absolute
authority to declare any area as “disturbed area” and thereby invests the
powers in the armed forces enabling them to restore peace and security in the
disturbed areas. AFSPA has been subjected to heating debates from time to time
with some terming it as a ‘draconian law’ while some defending it in the name
of larger interest of the nation’s security.
AFSPA AND ITS APPLICABILITY
AFSPA is a very small legislation
consisting of only 6 sections. Despite being so it has been the most
controversial legislation across all the legislations passed by the Parliament
of India. It has aided various famous operations carried out by the Indian
armed forces including Operation Blue Star in Punjab and lesser known Operation
Sarp Vinash at Surankot. This Act has been subjected to severe criticism both
at the national and international level. But at the same time, it has received
the continuing backing from the Government of India.
AFSPA is not an Act which is in force
pan India. It is invoked only in areas declared as the ‘disturbed areas’ by the
Central Government. From time to time AFSPA has been invoked in different
states as per the needs of the times. Since its enactment it has been in force
at least once in all the north eastern states and the state of J&K. During
the peak of insurgency incidents in the late 1990’s AFSPA was imposed at
multiple states at a single time in order to deal with the threats effectively.
With
insurgency-related incidents in the northeast region down by 85% from the
levels recorded at the peak of militancy two decades ago, the Centre has
withdrawn the Armed
Forces Special Powers Act (AFSPA)
totally from Meghalaya as
well as from eight out of 16 police stations in Arunachal
Pradesh, with effect from March 31, 2018.[1]
In 2015, the Tripura government
had lifted AFSPA from the state after 18 years. Until September 30, 2017, all
areas falling within a 20-km belt in Meghalaya bordering Assam were notified as
“disturbed” areas. Effective from October 1, 2017, this was reduced to a 10-km
belt.[2]
However, on March 31, 2018, it was decided that given the improved situation,
AFSPA need no longer be in force even in this 10-km stretch.
Presently, AFSPA, 1958, is
operational in the entire States of Assam, Nagaland, Manipur (except Imphal
Municipal area), three districts namely Tirap, Changlang and Longding of
Arunachal Pradesh and the areas falling within the jurisdiction of the eight
police stations in the districts of Arunachal Pradesh, bordering the State of
Assam. The notification declaring Manipur and Assam as “Disturbed Areas’ has
been issued by the State governments. For Nagaland, the notification is issued
by the MHA.[3]
PROCEDURAL AND INVESTIGATIVE POWERS
Section 4(a) is another provision
granting special investigative and procedural powers to the armed forces. It
empowers the armed forces personnel to use appropriate force against a person
acting in contravention of law in force in the disturbed area. This power even
includes the power to shoot after giving sufficient warning even to the effect
of causation of death. This provision has been widely criticized as being
violative of right to life guaranteed under the Article 21 of the Indian
Constitution. This provision is also against the cardinal principles of
criminal justice system. The powers provided herein are indeed arbitrary and
extensive in its very nature but the judiciary has upheld the validity of this
provision in the greater interest of the nation. The Delhi High Court in the
case of Indrajit Barua v. State
of Assam[4] has justified this provision by
stating that “if a law ensures and protects the greater social interest than
such law will be a wholesome and beneficial law although it may infringe the
liberty of some individuals : it will ensure the liberty of the greater number
of the members of the society at the cost of one and a few”[5].
Here the court followed the Bentham’s principle of “greatest happiness for the
greatest number of people. Any commissioned officer, non-commissioned officer,
warrant officer or any other officer of equivalent ranks is empowered to, in a
disturbed area, destroy any arms dump, prepared or fortified position or
shelter from which armed attacks are made or are likely to be made or are attempted
to be made, or any structure used as a training camp for armed volunteers, if
he is of the opinion that it is necessary to do so.[6]
Section 5 of AFSPA states that any
person arrested under this Act shall be produced in front of the officer in
charge of the nearest police station with the ‘least possible delay’ along with
a report of circumstances in which the person has been arrested. The Act
nowhere defines as to how much time amounts to the least possible delay,
thereby leaving a room for the officials to exercise their discretion in this
regard. This provision has been interpreted depending upon the circumstances of
each case. There is no fixed threshold exceeding which might amount to
violation of this provision. Though, in the general terms it can be defined as
without any arbitrary and unnecessary delay.
It has been contended that the help
of armed forces can be sought even under section 130[7] of
CrPC. But the deployment of the armed forces under CrPC is quite different from
that of invoking AFSPA. Here the armed forces aren’t invested with the required
powers to conduct searches or arrest a suspect without warrant. The armed
forces will first have to get the required permissions and this way the element
of surprise is lost. When there are sudden attacks and the attackers hide soon
after it, inflicting heavy damage, quick action on the part of armed forces is
very essential to effectively deal with the threat. For the right action at the
right moment the armed forces have to have some powers, else there would be no
difference between armed forces and the civil authorities. This is why the
armed forces are invested with the powers to arrest without warrant, any person
who has committed a cognizable offence or against whom a reasonable suspicion
exists that he has committed or is about to commit a cognizable offence[8]
and also enter and search, without warrant any premises to make any such arrest
as aforesaid or to recover any person believed to be wrongfully restrained or
confined or any property reasonably suspected to be stolen property.[9] Even
the CrPC allows to search without a warrant where a police officer has
reasonable grounds to believe that circumstances are such that unreasonable
delay can’t be afforded.[10]
But in terms of detention without warrant, as per the Criminal Procedure Code,
no police office shall detain any person without warrant for period longer than
24 hours.[11] Whereas
AFSPA is silent as to for how long a person can be arrested or detained without
a warrant.[12]
The Supreme Court has upheld the
validity of section 4 and held that it can be compared to section 130 and 131
of CrPC as they deal with individual and isolated cases while section 4 is
concerned with a situation where whole or a part of the State is in a disturbed
or dangerous condition. In such circumstances, section 130 and 131 can’t be treated
as comparable or adequate to deal with the situation envisaged in section 4.[13]
Section 6 provides immunity to armed
forces. This has been the most debatable provision of this Act and it has been
alleged that it restricts the accountability of the armed forces as it provides
immunity to armed forces from general law. This provision has been discussed in
the case of Naga People’s Movement of Human Rights v. Union of India[14].
So, the issue has been dealt in Chapter 4. The immunity extends to the ambit of
National Human Rights Commission (NHRC), which is not authorized to investigate
the alleged violations by the armed forces in the ‘disturbed areas’.[15]
DISTURBED AREA
Section 3 of the Act lays down the
power to declare an area as the “disturbed area”. Under this section the
Governor of that State or the administrator of that State or the Central
Government can issue a notification declaring therein an area as the “disturbed
area”. The notification is usually issued by the Central Government i.e the
Ministry of Home Affairs but there have been instances where the final call as
to whether to call in the armed forces or not is left to be taken by the State
administration. The section lays down that a notification under this section
can only be issued when any of the above empowered authorities is of the
opinion that such circumstances have occurred which makes it necessary to use
the armed forces in the aid of the civil police. Once an area has been marked
as “disturbed” the armed forces acting therein get special powers to arrest
without warrant[16], to
enter and search any premises without warrant[17],
destroy any arms dump[18],
to make preventive detention and if the circumstances require even to kill the
person. The notification can be issued either for the whole state or a part of
the state. An area can be disturbed due to various reasons such as dispute
among people belonging to different religions, among people belonging to different
caste, languages etc. But most of the time an area is declared as disturbed
owing to violent activities by the alien elements with an aim to destabilize
the democratically elected government. State’s demand of autonomy has also lead
to clash of interest between the central government. Demand for autonomy has
been made primarily to preserve the local rituals and culture of that State.
People of these States sometimes resort to violent activities against the
government institutions to get their demands met. These circumstances also lead
to imposing of AFSPA in these areas.
Now the basis for declaration has
been a gray area. The section is a little ambiguous as to what circumstances
should be deemed sufficient to get the aid of the armed forces. Even the
judiciary hasn’t made a clear stand on this issue. The court held that there
must exist a law and order situation where assistance of armed forces in aid of
the armed forces is required.[19]
An argument that the AFSPA is being
used for political gains has often been put forward. The people putting forward
this argument believe that the areas under AFSPA are no more disturbed and it
should be repealed with immediate effect. But the facts state otherwise. 334
soldiers have lost their life in period of 2016-18 while serving in the AFSPA
imposed areas.[20] If the
claimed areas are peaceful then who is killing the soldiers? Apart from this,
let us not forget that Indian Army has lost more than 700 officers and 9000
soldiers to the insurgency.[21]
THE JUDICIAL APPROACH ON AFSPA IN INDIA
In the case of Naga People’s Movement
of Human Rights v. Union of India[22], the
SC directed the Indian army to treat a list of do’s and don’ts as binding so
that the disturbance to everyday life of people is minimized. This list of
guidelines is formulated to restrict the excessive and ambiguous investigative
and procedural powers of the armed forces making it mandatory to follow a
certain code of conduct. Consequently, a significant decrease has been observed
in complaints pertaining to the issue of violation of human rights in the name
of national security. The
Court held that the words of AFSPA implied a time bound declaration, and
therefore, a declaration that an area is "disturbed" cannot take
effect for more than six months at a time. the Court held that the power to declare an area
"disturbed" was neither arbitrary nor unguided, even though AFSPA
lays down no guiding criteria for such a declaration. The court also rejected
any suggestion that the military's extensive powers to search, seize property,
arrest people and use force against them were excessive. The Court maintained that security laws deal
with threats more elevated than public disorder, and the national legislature,
which is constitutionally empowered to legislate on matters concerning the
"defense of India," has clear authority to pass these laws. The
constitutionality of the AFSPA was upheld by the constitution bench[23].
The court further observed that the alleged enemies in these disturbed areas
are also the citizens of India and they also enjoy the fundamental rights
guaranteed by the constitution of India, so the armed forces has to exercise a
certain amount of care while carrying out its operations. The court was of the
view that the armed forces have not been maintained to kill the innocent and
doing so would amount to violation of rule of law and natural justice.
Personnel of armed forces before taking action needs to ensure that it is ‘necessary’
and ‘due warning’ has been given and minimum force required shall be exercised
to effectively deal with the person acting in contravention of the law. These
directions by the Supreme Court place and extraordinary onus on the armed
forces for self-regulation. The most significant observation made by the SC was
that the members of the armed forces don’t enjoy absolute immunity from
prosecution as provided under the Act and held that the provisions of CrPC are
equally applicable to the security personnel and therefore even the ordinary
courts have the jurisdiction to try the matter[24].
In 2017, Government of India filed a petition in the SC against this order.
This petition was rejected by the SC and held that no reasonable case can be
made out to grant back the immunity to the armed forces carrying out operations
in the ‘disturbed areas’.’ However, the traditional perception of the AFSPA
leading to grave violation of human rights has still lead to a persistent
demand by the people for its revocation.
The Supreme Court in the case of Extra
Judicial Execution Victim’s Families Association v. Union of India[25]
has made some significant observations. The Court held that the power of armed
forces to cause death is not absolute. It has to be determined whether use of
force is disproportionate or retaliatory or not. No one can act with impunity
particularly when there is loss of an innocent life. There is no blanket
impunity available to perpetrators of the crime. There can be presumption raised
as to every person killed in an encounter was a terrorist or a militant. Doing
an encounter shall be the last option to resort to and the legitimacy of every
encounter must be looked into. Also the Court held that the substitution of
words “internal disturbance” by “armed rebellion” in Article 352 of the Indian
Constitution implies that internal disturbance can no more be a ground for
declaring emergency. So, to declare emergency internal disturbance has to
coupled with the armed rebellion. Also the failure of constitutional machinery
is a prerequisite to declare emergency under art 352.
Based on this reasoning the Supreme
Court held that the situation in Manipur is at best an internal disturbance and
it’s doesn’t amount to a threat to the security of whole nation or a part
thereof. So instead of declaring the emergency, the armed forces should be
deployed in aid to the civil police to deal with the internal disturbance. The
court further held that AFSPA is not to supplant civil authorities and only
supplement it. The armed forces must act in corporation and conjunction with
the civil administration and shall be deployed only until the normalcy is
obtained. The court observed that the deployment of armed forces is intended to
restore normalcy.[26]
It would be very odd if the normalcy is not obtained within a reasonable time
frame.[27]
Thus the Court intended that the deployment should not be for an indefinite
period. If the normalcy is not obtained within a reasonable time frame it would
mean that the armed forces failed to work in aid to the civil administration. The
deployment of armed forces should only be for the emergency situations and the
Government should not rely upon AFSPA as a long term solution. The Court
further stated that both court martial court and court instituted under CrPC
have the jurisdiction to try offences such as murder, culpable homicide not
amounting to murder, rape etc committed by the armed forces deployed in the
“disturbed areas”.[28]
To reach this conclusion the court relied upon the interplay between section 4
and 5 of CrPC and section 125 and 126 of Army Act. But no doubt the criminal
court lacks such jurisdiction unless the sanctions are provided by the Central
Government.
The Guwahati High Court in the case
of Solomi Shingnaisui v. Union of India ordered that the authorities are duty
bound to pay compensation for the custodial death of a citizen and the
compensation may be granted under the public law by the Supreme Court and the
High Courts in addition to private law remedy and punishment to wrong doers
under the criminal law.[29]
The same court also held that nobody is authorized under the Indian
Constitution to take away the right to life and liberty except according to
procedure established by law.
The Indian judiciary has been a
little reluctant in getting into the nitty gritty of the AFSPA provisions. It
would be right in saying that judiciary has turned a blind eye towards some of
the ambiguities in the Act in the larger interest of the nation. A declaration under
sec 3 of the AFSPA can’t be substantially questioned as this section doesn’t
lay down any specific criteria as to what circumstances are sufficient to form
the ‘opinion’ unless it is prima facie manifested that the opinion formed by
the government is in bad faith and amounts to abuse of law.[30] A
little more active role from the judiciary would be highly appreciable like
that of in Sebastian M Hongray case[31], where
the court imposed exemplary fine on the government for failing to produce two
detained persons under AFSPA. Though the stand taken by the Supreme Court in
recent years is an encouraging one and more judgments inclined towards human
rights could be expected in the near future. The aim should be to make AFSPA a
more citizen friendly and simultaneously strict for the disturbing elements.
CONCLUSION AND SUGGESTIONS
In 2022, India is going to celebrate
its 75th Independence Day and some people are lamenting another
anniversary i.e. 64 years of AFSPA. Enacted as a short term measure to
effectively deal with the insurgency in the Naga Hills, the AFSPA has managed
to remain in force for over six decades now especially in the north eastern
region of India. This fact in itself is highlighting the failure of various
governments to provide an amicable and permanent solution to achieve the peace
in the region. The Act provides for exemplary powers to arrest merely on the
basis of suspicion. This power is susceptible of exploitation and can gravely
infringe upon the fundamental right of the suspected persons. One the other
hand, in an insurgeny hit area, such powers become imperative. To keep a
balance, more safeguards shall be incorporated within the Act itself by way of
an amendment. Provision for anticipatory bail, prior notice to suspected person
to present himself and furnish the bond to maintain the law and order and failure
to appear upon such notice will entitle the army forces to take action, would
create a situation of equilibrium.
Government has repeatedly insisted
that AFSPA is necessary to deal with the militancy and terrorism in the
“disturbed areas”. Shri. L.K. Advani, a prominent Indian politician, once said “to
modify or to revoke AFSPA in the State of J&K is to surrender to Pakistan’s
strategy of breaking down of India”. India have one of the largest territorial
boundaries and is home to the most diverse cultures of the world. Different
communities over the years have come forward with a demand of separate nation
or demand of autonomy. Such demands are against the basic structure of the
Indian Constitution. Had India surrendered to such demands India wouldn’t be
like it is today. The neighbors, who believes in expansionist theory, would
have acquired most of the land. So, the Union of India do needs the security
laws to prevent its disintegration at the behest of foreign powers. But the
fact is that the international laws requires to reinforce basic human rights
and not undermine them. So, at the same time the basic human rights of the
citizens should be respected and shall not be infringed. Reform of India's
security laws-whether substantive or procedural-will not be easy to push
through, given that certain core security provisions have recurred in different
generations of laws. Eg. POTA, TADA NSA. All these Acts have the different name
but the essence and the basic structure is common to all of them. So, multiple,
routine, regular checks and balances stitched into the executive's exercise of
security powers will compel public deliberation and, as a result, encourage
reasoned decision making. Moreover, national security is an arena where
governments can too easily dismiss non-state critics, however cogent, by citing
their ignorance of classified information or questioning their patriotism. This
is another problem that comes with the enactment of the security laws. It
becomes imperative here to give the accused person a chance to show his
innocence before any harsh action is taken against him. The principles of
nature justices i.e Audi Alteram Partem and reasoned order has to be followed
while acting under security laws as well. A respect for the fundamental and
basic human rights of individuals is the bedrock of a true democracy. It is the
duty of the State to undo the damage done by its officers to the individuals.
For that, provisions must be enacted within the AFSPA which binds the violators
to pay exemplary monetary damages. Armed forces deployed in the civil areas
must win over the confidence of the people instead of exploiting the power
conferred upon them. They are there to safeguard the public interests. They
must set up complaint kiosks to listen to the people’s complaint. No operation
or policy can succeed without the support of the people. So it becomes very
important to know the expectations of the people from the armed forces.
Request for sanctions remain pending
with the government for a very long time, thereby hindering the process of
justice. The Santosh Hegde Commission also stated that a period of maximum
three months should be fixed for the government to decide whether to give
sanction or not. This order of the government should be a ‘speaking order’. On
the other hand, many a times there are also motivated complaints filed against
the army to defame it or to hinder its operations. Because of this sometimes
some personnel are reluctant to an action, which is otherwise necessary,
fearing inquiry against him. Even if a complaint is found to be frivolous, the
person filing the complaint is allowed to walk way freely without any
accountability. This shows the need to provide the armed forces with the
desired legal support for protection of their actions done in good faith. Woman
are used as the shield during the operations. Every false rape claim is another
nail in the coffin of the genuine rape victim. Further, it is not the citizens
who are always at the receiving, armed forces deployed in the disturbed areas
are far more vulnerable to life threats. Thousands of personnel have laid their
life fighting the insurgency in the disturbed areas. Lastly, the Government of
India should adopt necessary and proper steps for all round development of the
entire NE India. It’s time that government should now think of a permanent
solution to the prevailing challenges in the north east. Development,
employment opportunities, taking the local people into confidence before
framing policies is the key.
[1] Bharti Jain, AFSPA removed from
Meghalaya after 27 years, Times of India (24/04/2018), available at http://timesofindia.indiatimes.com/articleshow/63887983.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
https://timesofindia.indiatimes.com/india/afspa-removed-from-meghalaya-after-27-years-assam-too-may-reduce-afspa-area/articleshow/63887983.cms,
last seen on 15/01/2021.
[2] Ibid.
[3] Special Corrospondent, AFSPA
extended in Nagaland, The Hindu (30/12/2019), available at https://www.thehindu.com/news/national/other-states/afspa-extended-in-nagaland/article30434509.ece,
last seen on 26/01/2021.
[4] Civil Appeal No. 834 of 1980
Letters Patent Appeal No. 108 of 1980.
[5] Ibid.
[6] Section 4(b), AFSPA.
[7] Sec 130 Crpc – Use of Armed Forces
to disperse assembly
(1) If
any such assembly cannot be otherwise dispersed, and if it is necessary for the
public security that it should be dispersed, the Executive Magistrate of the
highest rank who is present may cause it to be dispersed by the armed forces.
(2) Such Magistrate may require any officer in
command of any group of persons belonging to the armed forces to disperse the
assembly with the help of the armed forces under his command, and to arrest and
confine such persons forming part of it as the Magistrate may direct, or as it
may be necessary to arrest and confine in order to disperse the assembly or to
have them punished according to law.
(3) Every such officer of the armed forces shall
obey such requisition in such manner as he thinks fit, but in so doing he shall
use as little force, and do as little injury to person and property, as may be
consistent with dispersing the assembly and arresting and detaining such
persons.
[8] Section 4(c), AFSPA, 1958.
[9] Section 4(d), AFSPA, 1958.
[10] Section 41 and section 165, CrPC,
1973.
[11] Section 57, CrPC, 1973.
[12] Supra 28.
[13] Naga People’s Movement of Human
Rights v. Union of India, 1998 (2) SCC 109.
[14] Ibid.
[15] Section 19, Protection of Human
Rights Act, 1993.
[16] Sec 4(c), AFSPA.
[17] Sec 4(d), AFSPA.
[18] Sec 4(b), AFSPA.
[19] Extra Judicial Execution Victim’s Families
Association v. Union of India (2013 SC).
[20] Press Trust of India reported this,
as the then defence Minister Mr. Rajnath Singh submitted a report to Rajya
Sabha, on June 24,2019.
[21] Harwant Singh: Don’t demoralize
the soldiers by diluting AFSPA, Hindustan Times (New Delhi, 21/08/2018).
[22] (1998) 2 SCC 109.
[23] Ibid.
[24] Ibid.
[25] (2016) 14 SCC 536 : 2016 (4) SCC
(Cri) 508.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Guwahati High Court (Imphal) WP
No. 591 of 1999; Order dated 24 Apr 2001.
[30] Supra 33, at 15.