Armed Forces Special Power Act, 1958

A code of laws prepared by Draco, the celebrated lawgiver of Athens, that, by modern standards, are considered exceedingly severe. The term draconian has come to be used to refer to any unusually harsh law.

INTRODUCTION

“An effective international strategy to counter terrorism should use human rights as its unifying framework. The suggestion that human rights violations are permissible in certain circumstances is wrong. The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter what the ends. International human rights and humanitarian law define the boundaries of permissible political and military conduct. A reckless approach towards human life and liberty undermines counter-terrorism measures”. - Mary Robinson, the United Nations High Commissioner for Human Rights in her report to the 58th session of the United Nations Commission on Human Rights.[1]

The Armed Forces (Special Powers) Act (AFSPA), was passed on September 11, 1958, by the Parliament of India.[2] It conferred special powers upon armed forces in what the act calls "disturbed areas" in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.[3]

In this Act, unless the context otherwise requires-

(a) “armed forces’ means the military forces and the air forces operating as land forces, and includes other armed forces of the Union so operating;
(b) ‘disturbed area’ means an area which is for the time being declared by notification under section 3 to be a disturbed area’;
(c) all other words and expressions used herein, but not defined and defined in the Air Force Act, 1950 (45 of 1950), or the army Act, 1950 (46 of 1950) shall have the meanings respectively to them in those Acts.

According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:

1. "Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law" against "assembly of five or more persons" or possession of deadly weapons.
2. Arrest without a warrant and with the use of "necessary" force anyone who has committed certain offenses or is suspected of having done so.
3. Enter and search any premise in order to make such arrests.
4. It gives Army officer’s legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. For declaring an area as a 'disturbed area' there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary.[4]

THE PROBLEM: VIOLATION OF RIGHT TO LIFE

Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or state government in question must grant sanction for the prosecution of any government official or member of the armed forces alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”.[5]

On the 11th of July 2004, the personnel of the Assam Rifles picked up a young woman from her house in Thoubal district, Manipur.  Her house was searched but nothing was found. The Assam Rifles personnel then arrested her and left after leaving an arrest memo stating that they had not found anything incriminating.  The next morning her body was found on a nearby hillock with several bullet injuries around her waist and abdomen.[6]  The local people who found her body naturally thought that she had been raped. This was followed by the extraordinary spectacle of a group of middle aged and elderly women leading a march to the gate of the Assam Rifles and disrobing themselves demanding that they should be raped.  The valley then exploded in a violent agitation that lasted more than a month.  Regrettably the reaction from the centre was most unsympathetic. The statements made by some senior officials were particularly insensitive.  One stated that the lady, Thangjom Manorama was a PLA cadre and she was an explosives expert and several security personnel had been hurt and killed by her explosive devices.  This seemed to imply that her killing was justified.

Section 5 of the AFSPA states that when a person is arrested, he/she must be handed over to the nearest police station with the least possible delay.  It need not be added that when a person dies in custody, the body must be produced to the police who will then arrange to have the inquest done by a magistrate. The crucial question here was why did not the Assam Rifles personnel hand over the body of Thangjom Manorama to the police?  This omission leads an independent observer to the conclusion that there was some foul play.

What is the AFSPA and what were the reasons why this act was legislated in Nagaland, Mizoram, Manipur, Assam and Tripura and later in Punjab and Kashmir?  The act was legislated to help the armed forces of the Union that includes the Army, Navy, Air Force and all Paramilitary Forces of the Union operating in insurgency prone areas. Under the Criminal Procedure Code, it is only the police who can arrest a person suspected of committing a cognizable offence and search a house in which stolen property is suspected to be kept without a warrant.  Insurgents operate in the hinterland where there are no police stations. When the armed forces operate in the interior areas, it is not possible to take policemen along with them always.  This is why the clause in the act that the persons arrested by the armed forces should be produced in the nearest police station with the least possible delay.  In all the insurgencies in India in the Northeast, Punjab and Kashmir, regrettably the police was sidelined from the beginning of the insurgency and the Army and the Paramilitary forces deployed never learned to trust the local police.

Armed Forces patrols or convoys get ambushed because of their own carelessness. Why should they take out their anger on innocent people because of their carelessness or lack of alertness resulting in their getting ambushed?  The following are recorded instances of such incidents in Manipur.

Heirangoithing Massacre: A volleyball match was being played between the BSF and the Manipur Rifles at Heirangoithing on the outskirts of Imphal on 14 March 1984. There were about 3000 spectators. A detachment of CRPF was on security duty for the match.  They should have frisked the spectators and cordoned them before the match started. After that they should have remained with rifles in ready position looking outwards during the match.  Obviously they took it easy and were watching the match. Some insurgents taking advantage of the carelessness of the security detachment mingled with the crowd, fired on the CRPF boys, killed one, injured five and snatched 3 SLRs and retreated.  Seeing the injured and the dead, the remaining CRPF personnel fired on the crowd indiscriminately in anger and panic, killing 13 and injuring 36 civilians. The commission of inquiry held that the CRPF had fired in rage and frustration after the militants had retreated.[7]

CRPF firing at RMC Hospital: On 2 January 1995, 2 sections of CRPF were guarding some of their colleagues admitted in the hospital.  At 0700 hours some militants fired on a CRPF constable Yousef who was washing himself in the toilet injuring him grievously.  The militants had struck when the CRPF guard was down. In the morning hours one sentry should have stood behind the sandbagged sentry post with his rifle in ready position.  Well after the militants had retreated, the CRPF opened fire in sheer rage killing a medical student from Arunachal and 9 others.[8]

The Tonsen Lamkhai Massacre: On 3 October 1999 an insurgent group ambushed a CRPF convoy at Tomsen Lamkhai in Thoubal district killing 7 personnel.  The force returned the fire and killed one militant.  Minutes after the ambush, the CRPF stopped a bus carrying polling personnel, forced some of the polling staff to get down, lined up 7 of them and shot them.  They later claimed that they were killed in the crossfire.[9]

The Malom Killings: On 2 November 2000, an Assam Rifles party was returning from Nambol, when a bomb buried in the berm was detonated as their vehicle crossed injuring some personnel.  The site of the explosion was opposite the Imphal airport.  A party of the Assam Rifles inside the airport rushed out on hearing the explosion.  They saw a party of 10 civilians who were waiting for a bus in the bus-shelter nearby.  They lined them up and shot them.  The group included a woman and her two nephews.  They claimed later that they were killed in the cross firing.  There was only the bomb explosion.  There was no firing by insurgents on the Assam Rifles vehicle.  A young woman Irom Sharmila from Malom has been on a fast since then to have the AFSP Act repealed.  She has been force fed for the last eight years.[10]

Operation Blue Bird at Oinam: July 10, 1987: Assam Rifles post at Oinam village raided and armoury looted by insurgents; 9 AR personnel die. Operation Blue Bird launched. Three month reign of terror by AR in 30 villages there. 14 civilians shot dead by the Assam Rifles. In an infamous incident of the operation, a woman was forced to deliver her child in public view in an open field, as troops jeered.[11]

Tera Bazar Massacre: March 25, 1993: Unidentified youth shoot at CRPF personnel at Tera Keithel, Imphal; 2 CRPF men killed. Thereafter, CRPF personnel rush out and fire indiscriminately. 5 civilians killed. Many receive bullet injuries. No enquiry instituted to date.[12]

 

THE SIGNIFICANCE OF DOING CASE STUDY

There is no doubt that the armed forces operate in difficult and trying circumstances in the areas afflicted by internal armed conflicts. It is in these situations that the supremacy of the judiciary and the primacy of the rule of law need to be upheld. However, if the law enforcement personnel stoop to the same level as the non-State actors and perpetrate the same unlawful acts, there will be no difference between the law enforcement personnel and the non-State actors whom the government calls “terrorists”.

It is hard to understand why the military authorities are to be invested with special powers. I have come across through the newspapers that these military authorities have always committed excesses in many cases, especially in the Northeast states. In such a situation, the people have risen against the military people should be killed and tortured without any fault of them? Why the law of a democratic country should be allowed to take the life of its innocent citizens?How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only severe the right of the people and harass innocent folk and deteriorate the situation.

Many inhuman acts of the armed forces are kept in a closed box under AFSPA. This directly contradicts Article 14 of the Indian Constitution which guarantees equality before the law. This article guarantees that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." The AFSPA is in place in limited parts of India. Since the people residing in areas declared "disturbed" are denied the protection of the right to life, denied the protections of the Criminal Procedure Code and prohibited from seeking judicial redress, they are also denied equality before the law. Residents of non-disturbed areas enjoy the protections guaranteed under the Constitution, whereas the residents of the Northeast live under virtual army rule. Residents of the rest of the Union of India are not obliged to sacrifice their Constitutional rights in the name of the "greater good".

There are several cases pending before the Indian Supreme Court which challenge the constitutionality of the AFSPA. It  is unconstitutional and should be repealed by the judiciary or the legislature to end army rule in the North East.

Violation of Article 21 - Right to life : Article 21 of the Indian Constitution guarantees the right to life to all people. It reads, "No person shall be deprived of his life or personal liberty except according to procedure established by law."  Under section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of force.

Protection against arrest and detention - Article 22: Article 22 of the Indian Constitution states that "(1) No person who is arrested shall be detained in custody without being informed, as soon as may not be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate." The remaining sections of the Article deal with limits on these first two sections in the case of preventive detention laws. On its face, the AFSPA is not a preventive detention law therefore the safeguards of sections (1) and (2) must be guaranteed to people arrested under the AFSPA.

Modelled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the Armed Forces Special Powers Act of 1958 (AFSPA) was initially supposed to have remained in operation for one year to tackle the Naga problem. However, after 45 years of imposition of the AFSPA, the Naga problem is far from resolved. The government of India and Naga armed opposition groups - both Issac-Muivah and Kaplang factions of the National Socialist Council of Nagaland - have been engaged in a peace process since July 1997. The peace process stresses the axiom that political problems cannot be resolved by merely terming it as law and order problems - “arson, murder, loot, dacoity” - crimes which are more associated with mainland India’s Uttar Pradesh, Bihar and Madhya Pradesh.

There is no doubt that a large number of armed opposition groups operate in Manipur and elsewhere in the North East and that they have been responsible for gross human rights abuses. Yet, unlawful law enforcement only begets contempt for the rule of law and contributes to a vicious cycle of violence. The unusual form of demonstrations by some members of the Meira Paibis (Torch Bearers) in Manipur who stripped themselves in front of the Kangla Fort on 15 July 2004 was an act of desperation to protest against the systematic denial of access to justice even for unlawful, intentional, arbitrary, summary and extrajudicial deprivation of the right to life. The third preambular paragraph of the Universal Declaration of Human Rights - “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” - is prophetic about such situations.

A reckless approach towards human life and liberty in the last 45 years under the AFPSA has been counter-productive and caused alienation of the people in the North East. The review of the AFSPA is overdue for many reasons.

The mushrooming of the non-State actors and violations of the international humanitarian laws by these groups are realities of the North East India. “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, that does not give the State the right to take away the right to life in an intentional and unlawful way or violate human rights guaranteed under the constitution and international law. The AFSPA has become the main symbol of repression because of its sheer misuse as demonstrated in the various case studies of last few years provided in this study. In addition, a few armed opposition groups were also initially created by State agencies as a part of the counter-insurgency operations and these groups.

The only way to guarantee that the human rights abuses perpetrated by the armed forces in the North East cease is to both repeal the AFSPA and remove the military from playing a civil role in the area. Indeed with 50% of the military forces in India acting in a domestic role, through internal security duties, there is a serious question as to whether the civil authority's role is being usurped. As long as the local police are not relied on they will not be able to assume their proper role in law enforcement. The continued presence of the military forces prevents the police force from carrying out its functions. This also perpetuates the justification for the AFSPA.
 

OBJECTIVES

1. To find out the intention for passing AFSPA 1958 Bill by the parliament.
2. To find out the advantages and disadvantages of AFSPA 1958.
3.  To sort out the possible and feasible remedies.

References:

1. http://www.unhchr.ch/huricane/huricane.nsf/view01/289B530DA501D730C1256C05002E1236?
2. http://www.mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf
3. http://mha.nic.in/pdfs/Armed%20forces%20_J&K_%20Spl.%20powers%20act,%201990.pdf
(Indian Ministry of Law and Justice Published by the Authority of New Delhi)
4. Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109.
5. Code of Criminal Procedure [hereinafter ‘CrPC’], 1973, Section 197, available at: http://www.vakilno1.com/bareacts/CrPc/s197.htm
6. http://www.e-pao.net/epRelatedNews.asp?heading=1&src=120704 "Arrested woman found brutally killed" July 11, 2004
7. www.gijc2008.no/handouts/380/Handout-Kavita_Joshi.doc [Shooting Women and Conflict in Manipur, India "TALES FROM THE MARGINS"  documentary film and presentation by Kavita Joshi]
8. http://www.asthabharati.org/Dia_Oct%2009/E.N.%20Ram.htm
9. ibid
10. ibid
11. www.gijc2008.no/handouts/380/Handout-Kavita_Joshi.doc
12. ibid

----------------------------------------------

Submitted as an assignment by T. Zamlunmang Zou on Sept. 1, 2011