AFSPA: THE LAW DEVOID OF ‘RULE OF LAW’

Sadhvi Shrivastava
History has barely exhibited judicious utilization of penal laws untrammeled by fallibilities and human motives. The primary facet of state power to govern its citizenry is police power. Any piece of statute that augments the policing power has a besetting sin to diminish the level of democracy and freedom. The Armed Forces Special Powers Act is no exception. Union Home Ministry, in a welcoming move has recently repealed AFSPA from seven districts of Nagaland; six districts of Manipur; and twenty-three districts entirely and one district partially in Assam.

Background

The Armed Forces Special Powers Act, 1958, was firstly introduced as The Armed Forces Special Powers Ordinance, 1942 by British Colonial Government before Independence in order to suppress The Quit India Movement. To tackle the internal security disturbances caused by partition in 1947, The Indian Government initiated four Ordinances- the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; the East Punjab and Delhi Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; and the United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947. These Ordinances were later replaced by Armed Forces (Special Powers) Act, 1948. The present Act was enacted in 1958 by the Parliament known as The Armed Forces Special Powers Act, 1958. Initially, this Act applied to the area of Assam and Manipur. iUnder AFPSA, the Armed forces enjoy lethal powers without judicial intervention.

Legal Validity

The provisions of AFSPA are vague and are not clearly defined. Section 2 of AFSPA defines the ‘Armed Forces’ and ‘Disturbed Areas’. Section 3 further defines powers to declare areas to be ‘Disturbed Areas’. This section gives power to the Governor of the state or the Administrator of a Union Territory or Central Government to declare an area disturbed. An Area can be declared disturbed if it is in a disturbed or dangerous condition. However, no conditions are given to fulfill the criteria of a disturbed or dangerous condition.

In Inderjit Barua v. State of Assam, AIR 1983, the governor is empowered to declare an area disturbed. However, it could not be arbitrary on the absence of legislative guidelines. Since no conditions are given to declare an area disturbed, it might be arbitrary. Section 4 gives wide powers to the Armed Forces. It says, any commissioned officer, warrant officer, non-commissioned officer or any other of equivalent rank in the armed forces may- 4(a) fire upon any individual after giving due warnings to maintain the public order, the force can be used to any extent even to causing death of the person. This excessive use of force which might result in death violates iiArticle 21 of the Indian Constitution. Even during emergencies, Article 20 and Article 21 remained intact. So does this mean that AFSPA is stronger than the Emergency situation? This section also prohibits the assembly of five or more persons.

However, it does not specify the type of assembly it prohibits. So does this section prohibit the peaceful assembly or violent assembly or assembly in general? -4(c) Arrest can be made without warrant on a reasonable suspicion of committing a cognizable offence and force may be used to make the arrest. No limit is given as to how far the force can reach. This way, force can be used to the maximum possible extent. Same goes with sub-section 4(d) where no degree is mentioned about the extent of force.

All these loopholes can be used by the Armed Forces according to their whims. Section 5 says any person who is arrested under this act must be handed over to the officer in charge of the nearest police station with the least possible delay. However, least possible delay is nowhere defined in this Act. It either can be a day or a week or more. Any delay in handing over the person can be used as an excuse by the Armed Forces under this section.

Also, Armed Forces personnel are not required to disclose to the person the reason for which the arrest is made. iiiArmed Forces personnel are given protection of any suit or legal proceedings. Only the Central Government is allowed to prosecute them. No judicial proceeding can be initiated without the consent of Ministry of Home Affairs. Since no judicial intervention is allowed, this might be an upper hand for Armed Forces Personnel.

Human Rights Violations

AFSPA resulted in various cases of breach of Human rights. In 2000, 10 civilians were killed by the Assam Riffles. This famous incident is known as ‘Malom Massacre’. This ignited anger among the people and they demanded repeal of AFSPA. In 2004, a lady Thangjam Manorama was arrested of being a member of People’s Liberation Army. She was taken into custody and her bullet-ridden and badly mutilated dead body was found later. Reports mentioned that she was brutally raped and murdered.

There was widespread eruption of rage in Manipur after Manorama’s killing. A group of elder women gathered in front of Assam Rifle’s headquarters and stripped their clothes off, calling army to come rape them. A recent case of killing of 14 civilians and a member of security forces by the officers of Armed forces again resulted in major protests being held by the people of North-East India.

Due to this, the demand for the repeal of AFSPA from North-East region gathered momentum. Massive rallies have been held by the people against this draconian act. Thousands of the people joined rallies in order to seek justice for the civilians and removal of AFSPA.

The protestors were carrying signs like ‘Repeal AFSPA’, ‘Leave Nagas alone to live in peace’. AFSPA resulted in not only giving innumerable powers to Armed forces but also led to frequent Human rights violations. The North-East region has lived in the shadow of AFSPA for more than half a century and the need for removal of AFSPA was significant.

Justice Jeevan Reddy Committee

A committee was formed by The Supreme Court in 2004 under the leadership of Justice Jeevan Reddy to review the constitutional validity of AFSPA. The Committee concluded repeal of AFSPA from the districts of North-East India. The concerned Committee advised to insert the provisions of AFSPA in Unlawful Activities (Prevention) Act, 1967. Similarly, iv The Second Administrative Reforms Commission also recommended the repeal of AFSPA.

Conclusion

For the protection of state, AFSPA is the key. However, the provisions of AFSPA are inhumane. The only alternative left is an amendment. As the provisions of AFSPA violate various International Conventions and treaties like ICCPR, amending the AFSPA might be a solution. AFSPA is one of the most vague and inhumane acts. Through Amendment, AFSPA can be made more humane and vagueness can be removed.

This will benefit not only the people but also the government in one way or another. Also, The Supreme Court being the custodian of fundamental rights should interfere in this matter. Thus, Rule of Gun should be replaced by Rule of Law.

Endnote

  • After the emergence of Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland, the act applied to whole of the North-East India.
  • Article 21- Right to Life
  • Section 6 provides protection to Armed Forces except the Central Government. Central Government can prosecute the Armed Forces.
  • Formed under the leadership of the then Union Law Minister M Veerappa Moily.