REVIEW OF THE AFSPA

(An analysis of the draconian Armed Forces Special Powers Act, 1958)

 

 

Introduction

 

After the alleged extrajudicial execution of 32-year-old, Ms Thangjam Manorama Devi following her arrest as a suspected member of the Peoples Liberation Army (PLA) by the Assam Rifles personnel at 3.30 a.m. on 11 July 2004, Manipur faced unprecedented civil disobedience over the demand for removal of the Armed Forces Special Powers Act (AFSPA), 1958. Modeled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the AFSPA empowers non-commissioned officers to search without warrant, arrest without warrant and shoot even causing of death. The security forces enjoy virtual impunity for any excesses while exercising these unrestrained powers as no one can be prosecuted without the prior permission of the Central government.

 

As a response to the civil disobedience movement led by the Apunba Lup, the Government of India has set up the “Committee to Review the Armed Forces Special Powers Act, 1958”.

 

This paper examines the illegality of the provisions of the Armed Forces Special Powers Act.

 

Section 3: Undeclared Public Emergency

 

Section 3 of the Armed Forces Special Powers Act, 1958 provides that:

 

“If in relation to any State or Union Territory to which this Act extends, the Governor of the State, or the Administrator of the Union Territory, or the Central Government in either case, is of the opinion that the whole or any is in such a disturbed or dangerous condition that the use of Armed Forces in aid of civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area”.

 

The process of declaration of emergency under the Armed Forces Special Powers Act, 1958 as amended in 1972, violates the provisions of the Constitution of India and International Covenant on Civil and Political Rights to which India is a party.

 

Domestic Law:

 

Under the AFSPA, the authorities only need to be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary." There is no definition of what constitutes “dangerous or disturbed condition”.

 

The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case (AIR 1983 Del 513). The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, it is not subject to judicial review.[1]

 

The Disturbed Areas (Special Courts) Act, 1976, however, provides a clear definition. Under the Disturbed Areas (Special Courts) Act of 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.[2]

 

In the original version of the Armed Forces Special Powers Act of 1958, only the state governments had the power to declare an area as disturbed. This was consistent with Article 246 of the Constitution of India[3] to be read with the 7^th Schedule of the Constitution of India which places “law and order” under the State’s list. The 1972 amendments to the AFSPA took away the power from the State government and its legislative Assembly and handed it over to an appointee of the Central Government. This is despite the fact that President can proclaim emergency under Article 356 of the Constitution of India.

 

Therefore, under the Armed Forces Special Powers Act, the Central government subsumes the powers of the State governments to declare certain parts or whole of a State or Union Territory under emergency with having to resort to the strictness required under the Article 356 of the Constitution of India.

 

Indian judiciary has failed to uphold the provisions of the Constitution and federal nature of the country in areas relating to internal conflict situations.

 

The Supreme Court of India in its judgement of 27 November 1997 stated that[4]:

“(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution.

 

(7) Section 3 of the Central act does not confer an arbitrary or unguided power to declare an area as a 'disturbed area". For declaring an area as a 'disturbed area" under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union territory of the Central Government can from an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of civil power is necessary.

 

(8) A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.

 

(9) Although a declaration under Section 3 can be made by the Central Government suo motto without consulting the concerned State Government, but it is desirable that the State Government be consulted while making the declaration.

 

(10) The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.

 

(11) The conferment of the power to make a declaration under Section 3 of the Central Act of the Government is not violative of the federal scheme as envisaged by the Constitution”.

 

On 28 May 2004, the Okram Ibobi Singh government decided to extend the disturbed area status for the whole of Manipur for a further period of six months under the Armed Forces (Special Powers) Act, 1958 as it was due to expire on 31 May 2004.[5] It was reported that the security forces were against withdrawal of the AFSPA. Since 1980, Manipur has been under undeclared emergency.

 

International Law:

 

India is party to the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides under what circumstances state of emergency can be declared. It states,

 

“1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

 

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

 

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”

 

The United Nations Human Rights Committee, in its General Comment No 29 on Article 4, explains the circumstances under which measures derogating from the provisions of the Covenant may be taken. It states:

 

“Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency, which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers.”[6]

 

Article 4(2) of the ICCPR requires that certain rights may not be derogated from under any circumstances. The Human Rights Committee in its General Comment No. 29 further states:

 

“Article 4, paragraph 2, of the Covenant explicitly prescribes that no derogation from the following articles may be made: article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfill a contractual obligation), article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion). The rights enshrined in these provisions are non-derogable by the very fact that they are listed in article 4, paragraph 2. The same applies, in relation to States that are parties to the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty, as prescribed in article 6 of that Protocol. Conceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified. The reference in article 4, paragraph 2, to article 18, a provision that includes a specific clause on restrictions in its paragraph 3, demonstrates that the permissibility of restrictions is independent of the issue of derogability. Even in times of most serious public emergencies, States that interfere with the freedom to manifest one’s religion or belief must justify their actions by referring to the requirements specified in article 18, paragraph 3. On several occasions the Committee has expressed its concern about rights that are non-derogable according to article 4, paragraph 2, being either derogated from or under a risk of derogation owing to inadequacies in the legal regime of the State party”.[7]

 

The Human Rights Committee in its General Comment No. 29 further states:

 

“The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists. The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation”. [8]

 

In its General Comment No. 29, the Human Rights Committee developed a list of elements that cannot be subject to lawful derogation.[9] These elements include the

following: all persons deprived of liberty must be treated with respect for their dignity; the prohibition against hostage‑taking, abduction, or unacknowledged detention; the protection of persons belonging to minorities; the prohibition of unlawful deportation or transfer of population; and that “no declaration of a state of emergency … may be invoked as justification for a State party to engage itself … in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.”[10]

 

In any event, where derogation is invoked, there is an obligation under Article 4(3) to notify other States parties through the United Nations Secretary-General and to indicate the provisions from which a State has derogated and the reasons for such derogation.

 

Though Manipur has been under emergency since 1980, the government of India has not publicly declared a state of emergency but have taken emergency measures under the Armed Forces Special Powers Act, which derogate from treaty obligations in violation of the Article 4 of the ICCPR.

 

Not surprisingly, the United Nations Human Rights Committee while examining the third periodic report of India in 1997 held that India is in violation of Article 4.3 of the ICCPR. In its Concluding Observations after examination of India’s third periodic report, Human Rights Committee regretted that “some parts of India have remained subject to declaration as disturbed areas over many years - for example the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer - and that, in these areas, the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant”. Therefore, the Committee recommended that the application of these emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant.[11]

 

 

 

 

Section 4: Operation of the AFSPA

 

The operative clauses of the Armed Forces Special Powers Act, 1958 allow extrajudicial executions under section 4(a), destruction of properties and firing upon any absconder without any warning under section 4(b), arrest without warrant under section 4(c) and search and seizure without warrant under section 4(d).

 

A comparison with the relevant provisions of the Indian Criminal Procedure Code (CrPC) and Indian Penal Code (IPC) shows that the AFSPA violates the laws of the land.

 

Comparison of the AFSPA and Cr.PC. and IPC

 

Armed Forces Special Powers Act, 1958	Criminal Procedure Code, 1973/Indian Penal Code
1. Powers of Arrest   Sec. 4 Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area- (c) arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest;	41.When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110. 42.Arrest on refusal to give name and residence.- (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. (4) (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction
2. Powers of search and seizure   4. Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-   (d) 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 or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that Purpose use such force as may be necessary.   (c) 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 and may use such force as may be necessary to effect the arrest;   (b) if he is of opinion that it is necessary so to do, 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 or utilized as a hide-out by armed gangs or absconders wanted for any offence;	47.Search of place entered by person sought to be arrested.- (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance; Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it. (3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.   52.Power to seize offensive weapons.-The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested.
3. Power to open fire even to the extent of causing death   4. Special Power of the Armed Forces – Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area-   (a) if he is of opinion that it is necessary so to do for the maintenance of Public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;	No specific right to open fire except what is given as under the following provisions of the Indian Penal Code–   76. Act done by a person bound, or by mistake of fact believing himself bound, by law Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. Illustrations (a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence. (b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.   100. When the right of private defence of the body extends to causing death The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly- An assault with the intention of committing rape; Fourthly- An assault with the intention of gratifying unnatural lust; Fifthly- An assault with the intention of kidnapping or abducting; Sixthly- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
4. Immunity from legal consequences   Sec. 6-Protection to Persons acting under Act – No persecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.	45.Protection of members of the Armed Forces from arrest.- (1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. (2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.   197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

 

For understanding of the operation of the Armed Forces Special Powers Act, 1958 and extrajudicial executions under the Act, the operative clauses of Section 4 of the Act needs to be read and considered in reverse order. While section 4(d) of the AFSPA allows search without warrant, section 4(c) allows arrest without warrant. The armed forces are allowed to destroy properties without any verification under section 4(b). The lack of any record while conducting search, affecting warrants or destroying properties facilitate extrajudicial executions under section 4(a). Under Section 6 of the AFSPA, the armed forces enjoy virtual impunity as none can be prosecuted without the prior permission of the Central government.

 

Section 4(d): License to search without warrant:

 

Section 4 (d) of the Armed Forces Special Powers Act, 1958 provides,

 

“Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area,

 

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 or any arms, ammunition or explosive substance believed to be unlawfully kept in such premises: and may for that purpose use such force as may be necessary.”

 

The search and seizure proceedings laid down in the Code of Criminal Procedure (CrPC) for the police are not followed by the armed forces. Yet, the Supreme Court of India in its judgement of 27 November 1997 while upholding the constitutional validity of the AFSPA assumed that the guidelines provided under the CrPC would be followed despite the myriad of instances where they were not.[12] The Supreme Court in its judgement of 27 November 1997 stated:

 

“(16) The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer in charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.

 

(17) The provision of Cr.P.C. governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.”

 

Section 4(c): License to arrest without warrant:

Section 4(c) gives the authorities the authorisation to:

 

“Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area, arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest;”

 

Under section 4(c), any one can be arrested on the mere suspicion that he/she is going to commit an offence. This violates provisions of the Indian Criminal Procedure Code and Article 22 of the constitution of India.[13]

 

The Supreme Court in its judgement of 27 November 1997 merely reiterates:

 

(15) A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.

 

The case of Luithukla v. Rishang Keishing, (1988) 2 GLR 159, a habeas corpus case, exemplifies the total lack of restraint on the armed forces when carrying out arrests. The case was brought to ascertain the whereabouts of a man who had been arrested five years previously by the army. The court found that the man had been detained by the army and that the forces had mistaken their role of "aiding civil power". The court said that the army may not act independently of the district administration. Repeatedly, the Guwahati High Court has told the army to comply with the Code of Criminal Procedure (CrPC), but there is no enforcement of these rulings. The provision violates the customary Indian Code of Criminal Procedure. Section 50(1) of the Code of Criminal Procedure provides that "Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest."[14]

 

Section 4(b): License to destroy property without verification

 

The next subsection reads:

 

if he is of opinion that it is necessary so to do, 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 or utilised as a hide-out by armed gangs or absconders wanted for any offence;

 

Section 4(b) is in clear violation of the Indian Constitution. "The Supreme Court has laid down in judgement after judgement that absconding by itself is not conclusive either of guilt or of a guilty conscience."[15] The presumption of innocence against the absconders is not respected. In the name of absconders, the armed forces have destroyed homes, schools, and even churches. Every home in the North East is looked upon with suspicion and as a place from where armed attacks can be made"[16]

 

Section 4 (a): Lincense to kill

 

“Any commissioned officer, warrant officer, non- commissioned officer or any other person of equivalent rank in the Armed Forces may, in a disturbed area, (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

 

This provision gives license to kill innocent and suspected persons under the disguise of maintaining law and order and violates provisions of national and international human rights law.

 

This provision of the AFSPA violates Article 21 of the Constitution of India. Article 21 provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law." The courts have explained that a "procedure established by law" under Article 21 is a procedure which is reasonable, fair and just.

 

"Does the honourable minister feel that this is the procedure, he can shoot if it is a disturbed area, that is the procedure established by law? He can shoot. Anybody can be killed or shot at, but is this procedure established by law, does it go to that extent? Article 21 says that no person can be deprived of his life. Here any person can be deprived of life by any commissioned officer, he can shoot." -- asked the Speaker of Lok Sabha on 18 August 1958 to the then Home Minister Mr G B Pant.[17]

 

One of the experts of the United Nations Human Rights Committee while examining the third periodic report of India in October 1997 stated, “The Indian delegation's arguments concerning the Armed Forces (Special Powers) Act were clear, but not wholly convincing. The delegation had said that rights were safeguarded because it was mandatory to obtain judicial permission before opening fire; that requirement, however, applied only in the case of illegal meetings and in all other circumstances the police could open fire at will. In addition, permission had to be obtained from the central Government before proceedings could be brought against members of the armed forces. According to the delegation, that permission was needed because in India anybody could initiate proceedings. His own answer to that argument was that in common-law countries there were other ways of preventing vexatious actions. He remained of the opinion that the requirement to obtain the central Government's approval was among the means of removing the army and the security forces from judicial control”.[18]

 

Article 3 of the United Nations Code of Conduct for Law Enforcement Officials stipulates under what circumstances the officials may use force. It states, Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. In its commentary it, further states

 

(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.

 

(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force, which is disproportionate to the legitimate objective to be achieved.

 

(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.

 

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990, restrict the situations in which firearms should be used, and specify the intentional lethal use of firearms only when strictly unavoidable in order to protect life.

 

“9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

 

10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

 

11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:

 

(a)    Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

(b)    Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

(c)    Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;

(d)    Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;

(e)    Provide for warnings to be given, if appropriate, when firearms are to be discharged;

(f)     Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.

 

Yet the Supreme Court of India in its judgement in the case of Naga People's Movement of Human Rights, etc. vs. Union of India on 27 November, 1997 held that “The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution…. While exercising the powers conferred under Section 4(a) of the Central Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.” The Supreme Court judgement failed to take into account the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary executions of 1989.

 

Section 6: Impunity to the armed forces

 

Under Section 6 of the Armed Forces Special Powers Act, "No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act."[19]

 

This provision virtually eliminates any prosecution of armed forces personnel.[20] This despite the government of India already provides impunity under Section 197 of the Criminal Procedure Code.

 

While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated “Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government's fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case”.[21]

 

In its Concluding Observations, the United Nations Human Rights Committee noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant”. Therefore the Committee recommended, “that the requirement of governmental sanction for civil proceedings be abolished and that it be left to the courts to decide whether proceedings are vexatious or abusive. It urges that judicial inquiries be mandatory in all cases of death at the hands of the security and armed forces and that the judges in such inquiries, including those under the Commission of Enquiry Act of 1952, be empowered to direct the prosecution of security and armed forces personnel”.

 

The Supreme Court in its judgement on the constitutional validity of the AFSPA stated that “Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons”.

 

The defiance by the Assam Rifles to appear even before the Justice C Upendra Commission of Inquiry into the Death of Thangjam Manorama Devi has exposed how presumptuous the Supreme Court of India was.

 

The armed forces have always been treated as holy cows. They are also kept out of the purview of the National Human Rights Commission under the Protection of Human Rights Act of 1993. Section 19 of Human Rights Protection Act of 1993 provides:

 

"19. Procedure with respect to armed forces

 

(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely:-

 

(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;

(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.

(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.

(3) The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by that Government on such recommendations.

(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.[22]

 

The NHRC basically serves as the glorified post box with regard to the violations by the armed forces. This is despite the fact that according to 2002-03 Annual Report of the Ministry of Home Affairs (MHA) of the Government of India, 14 out of 28 States of India are afflicted by internal armed conflicts.[23] Hundreds of thousands of armed forces consisting of the para-military forces under the control of the government of India and the army have been deployed. There have been consistent and credible reports of serious human rights violations by armed forces such as torture, rape, extrajudicial executions and death in custody.

 

A handbook on the establishment and operation of National Human Rights Institutions published by the Office of the United Nations High Commissioner for Human Rights in Geneva states that "Designating the military as exempt from the complaints mechanism may also have a detrimental effect on an institution's effectiveness, particularly in view of the strength of the military in many States and its corresponding potential to violate human rights."[24]

 

The United Nations Human Rights Committee while examining India’s third periodic report regretted that “the National Human Rights Commission is prevented by clause 19 of the Protection of Human Rights Act from investigating directly complaints of human rights violations against the armed forces, but must request a report from the central Government. The Committee further regrets that complaints to the Commission are subject to a one-year time limit, thus preventing the investigation of many alleged past human rights violations. Therefore, the Committee recommended that “these restrictions be removed and that the National Human Rights Commission be authorized to investigate all allegations of violations by agents of the State”.

 

The NHRC itself has taken up the issue on various occasions. NHRC urged that impunity to the armed forces bring no credit to the government and the security forces and “it thwarts the purposes of justice and the prime objective leading to the establishment of this Commission, namely the need to ensure the "better protection" of human rights in the country”.[25] The government of India in a "memorandum of action taken" of December 2003 on the 2001-02 annual report of the National Human Rights Commission (NHRC) of India however has rejected the NHRC’s demand for amendment of Section 19 of the Human Rights Protection Act (HRPA) of 1993 to give powers to investigate allegations of human rights violations against the armed forces. The government of India cited “compulsions of fighting cross-border terrorism” and “widespread politicisation of human rights issues” for rejecting the NHRC’s demand.[26]

 

4. Conclusions and recommendations

 

“Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism — not privileges to be sacrificed at a time of tension.” – Secretary General Kofi Annan in March 2003 at a meeting of the Counter-Terrorism Committee of the Security Council with regional organizations.

 

There is no doubt that States have legitimate reasons, right and duty to take all due measures to eliminate terrorism to protect their nationals, human rights, democracy and the rule of law and to bring the perpetrators of such acts to justice. However, short-circuiting of justice has blurred the distinction between those who are contemptuous of the law and those who preach the values of democracy, rule of law and due process of law.

 

The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions lucidly summarised the impunity and extrajuducial executions in her report to the 57^th session of the United Nations Commission on Human Rights:

 

“Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity. ….., extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing justice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration. Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post‑conflict peace‑building efforts include effective measures to end the culture of impunity and protect the rule of law.”[27]

 

Manipur is an apt example.

 

Since Manipur has been declared as a Disturbed Area in 1980, according to Manipur Chief Minister Ibobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.[28] There were only about four armed groups in Manipur in 1980 and there are over 20 armed opposition groups at present. The AFSPA has manifestly failed to resolve the insurgency problem.

 

If the AFSPA is repealed, Asian Centre for Human Rights makes the following recommendations:

 

First, the state governments must have the sole right to declare certain areas or the whole of State as “disturbed” subject to the approval by the State legislative assembly. Therefore, Section 3 of the AFSPA be amended.

 

Second, the Supreme Court in its judgement stated that the AFSPA “does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power”. If that is followed in practice, the armed forces must operate under civil power. Therefore, provisions giving special powers to the armed forces pertaining for search and seizure under section 4(d), arrest under section 4(c), destroying hideouts of the “absconders wanted for any offence” under section 4(b) and the power to use force including “the right to fire upon or otherwise use force, even to the causing of death” under section 4(a) are inconsonant with the intent and be amended to comply with normal Criminal Procedure Code or Indian Penal Code. In fact, Section 5 of the AFSPA provides that “any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest”. If such a procedure could be laid down with regard to the arrest, there is no reason as to why similar procedure cannot laid down with respect to other provisions. The problem is such a procedure is seldom respected by the armed forces. Therefore, there is a need to incorporate necessary clauses both to ensure that the procedures are followed and punishment be awarded for the failure to respect the procedures laid down in the Act.

 

Third, Section 6 of the AFSPA has been overtaken section 197 of the Criminal Procedure Code. Since its amendment in 1991, permission from the concerned State or Central Government for prosecution is mandatory. If the Centre were to give permission under section 197, there is no reason as to why the same will not be accorded under AFSPA.