Is Armed Forces (Special Powers) Act serving its purpose right in India?

Prior to the Armed Forces (Special Powers) Act [AFSPA], 1958, the Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was active in the ‘disturbed areas’ of Assam and Manipur owing to demand for separation of states among the north eastern states, and the AFSPA (Jammu & Kashmir) 1990 which gave the armed forces certain extraordinary special powers. Such ‘disturbed areas’ are so declared by the governor of the state, or the central government under AFSPA, if in its opinion there exists a dangerous situation in the said area which makes it necessary to deploy armed forces in the region, such as to prevent terrorist acts aimed at overthrowing the government, striking terror in the people, or affecting the harmony of different sections of the people or activities which disrupt the sovereignty of India, or cause insult to the national flag, anthem or India’s Constitution.

Thereafter, authorized officers, under AFSPA, are given powers to open fire at any individual even if it results in death in the event that individual violates laws which prohibit the assembly of five or more persons; or carrying of weapons (however, a warning before opening fire has been mandated to the officer) under section 4; and to arrest without a warrant, seize and search without any warrant any premise in order to make an arrest or recovery of hostages, arms and ammunitions. If any F.I.R. is lodged against such authorized officer, then his/her prosecution requires prior permission of the Central government. This is an instance of the unconditional liberty given to armed forces under AFSPA to work in such extreme ways and at the same time be immune from getting prosecuted. Therefore, it seems in operation, army has more powers under AFSPA than the Centre/State has during Emergency under Constitution of India. And if at all they be tried by court-martial, there will be left no civil law remedy for the victims.

The constitutionality of AFSPA was challenged by various groups and was upheld in the case of Naga People’s Movement of Human Rights v. Union of India 1998 by Supreme Court which concluded saying that (a) a suo-moto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration as AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’; (b) such a declaration has to be for a limited duration which should be periodically reviewed; (c) while exercising the powers conferred upon him by AFSPA, the authorized officer should use minimal force necessary for effective action and follow strictly the ‘Dos and Don’ts’ issued by the army.

Thereafter, a five member committee headed by Justice B P Jeevan Reddy, appointed by Central government, in 2004 had reviewed the provisions of the Act and its necessity in the north eastern states and in its 2005 report recommended the repeal of AFSPA and modification of the Unlawful Activities (Prevention) Act 1967 to clearly specify the powers of the armed forces and paramilitary forces and set up grievance cells in each district where the armed forces are deployed. Also, the 5th report of the Second Administrative Reforms Commission on public order had recommended the repeal of AFSPA. But none of the recommendations have been implemented.

From among the public whose die-hard protests against AFSPA operation has moved the nation and the world, is Irom Chanu Sharmila from Manipur who has been fasting since the year 2000 until she had decided to break her fast in July 2016 and join politics to bring change in the political system and bring an end to AFSPA because the government did not agree to this demand.

The AFSPA has led to widespread human rights violations ever since it was enacted. The purpose with which it was enacted by going against the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR- to which India is a party), the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, the UN Principles on Effective Prevention and Investigation of Extra- legal and summary executions, Fundamental Rights of Indian Constitution like Article 14, 21, 22, and Code of Criminal Procedure (CrPC) procedures to make arrest/detain, etc does not seem to be justified as increasing violence and bloodshed continues till date and AFSPA could not restore normalcy and peace in the ‘disturbed areas’.

The atrocities have been in form of open firing and use of mortars (which is prohibited from use in a civilian area under Army Rules) by the Rashtriya Rifles, Assam Rifles and the CRPF mistaking a tyre burst of the convoy of the Rashtriya Rifles for a bomb blast which left several injured and dead; whereas in April 1995, a villager, who was shot dead in West Tripura by a soldier on not stopping at a border outpost when asked to do so; death of five men by a security personnel in Handwara, Kashmir during protests against alleged molestation of a girl by an army man. Residents of non-disturbed areas enjoy the protections guaranteed under the Constitution, whereas the residents of the Northeast and Kashmir live under virtual army rule.

If these forms of injustice to public are ignored openly by the courts of the country, then there will be no generation left or a few of them left to witness anymore atrocities. So I believe that either AFSPA should be totally repealed or their use of minimum force must be checked by the central government strictly to make it humanitarian and not to left with the army to deal with it.

Harini

Legal Associate