New controversy raises old legal questions around AFSPA

NEW DELHI: The killings of 14 civilians by defence forces in a botched operation in Nagaland’s Mon district on Saturday and Sunday has drawn focus, once again, on the Armed Forces (Special Powers) Act (AFSPA) and the immunity from criminal prosecution that the special law entails. The incident has renewed an old demand for the repeal of the law, and the sweeping powers and protections it offers.

Origin, ambit, features:

On August 15, 1942, the British administration enacted the Armed Forces (Special Powers) Ordinance to suppress the Quit India Movement launched by Mahatama Gandhi a week earlier. The ordinance enlisted the armed forces “in the aid of civil power” to put down the Indian independence movement during the Second World War.

Modelled on the colonial-era ordinance, AFSPA was promulgated in Parliament in September 1958. Simply put, the legislation allows armed forces to control and maintain public order in areas designated as “disturbed”.

According to Section 3 of the Act, an entire state or a part of the state area can be designated as “disturbed” by the governor of the state, the administrator of a Union Territory, or the Centre if they are of the opinion that the “whole or any part of such state or Union territory” is in “such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary”.

Section 4 of AFSPA accords special powers to armed forces, authorising security personnel to open fire, arrest people without warrants, enter and search without warrant -- all while having immunity from being prosecuted. Section 6 of the Act lays down that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by AFSPA in absence of a previous sanction of the central government.

“Armed forces” has been defined under AFSPA as military forces and the air forces operating as land forces, and includes all other central armed forces deployed in a state or UT.

Currently, the Act is in force in Nagaland, Assam, Manipur – excluding Imphal Municipal Council Area – Changlang, Longding and Tirap districts of Arunachal Pradesh, and areas falling under the jurisdiction of eight police stations of districts in Arunachal Pradesh bordering Assam. A similar Act – Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 – is operational in the Union territory of Jammu & Kashmir.

Parliamentary history:

AFSPA was first enforced in the North-east as a measure to battle the Naga insurgency in the then undivided state of Assam.

The bill was passed in the Lok Sabha without any amendment but there was severe criticism of the proposed law by several leaders. MP Surendra Mohanty of Ganatantra Parishad said that the bill invoked a state of emergency while suspending constitutional rights to approach courts. “We want a free India. But we do not want a free India with barbed wires and concentration camps, where havaldars can shoot at sight any man. If that is the concept of free India, I think I may as well be a traitor,” he told the House.

A Krishnaswami also made the argument that AFSPA was outside the powers granted in the Constitution since it was declaring a state of emergency without following the Constitutional provisions for such a declaration. He argued that this Bill would take away the State’s power by bringing in the military.

A discussion on the proposed law ensued in Rajya Sabha in August 1958. Then home minister Govind Ballabh Pant called the proposed law “a very simple measure” to control the “misguided Nagas indulging in mischievous activities”. Pant pointed out that the law was needed since it was not feasible to depute civil magistrates to accompany the armed forces over such a vast area wherever there may be trouble, because it happens unexpectedly.

Prime Minister Jawaharlal Nehru defended the proposed law, stressing: “No infirm government can function anywhere. Where there is violence, it has to be dealt with by government, whatever the reason for it may be; because otherwise you drift; the country drifts into, if I may use the word, Fascist methods, all groups, private groups and others, indulging in violence and trying to coerce the governmental authority by organised violence.”

The Bill was passed, and AFSPA has not been lifted in Nagaland since. After the North-east states were reorganised in 1971, the creation of new states (some of them were Union territories originally) such as Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved the way for the AFSPA Act to be amended, so that it could be applied to each of them.

AFSPA was imposed in Punjab and Chandigarh in 1983 due to secessionist movements and lasted for 14 years. The Jammu & Kashmir legislation was enacted in 1992.

Criticism and appraisal:

The controversy surrounding the Act has to do with the powers it grants armed forces. The law empowers security personnel, down to non-commissioned officers, to use force and shoot “even to the causing of death” if they are convinced that it is necessary for the “maintenance of public order”. It also grants soldiers executive powers to enter premises, search, and arrest without a warrant.

The exercise of these powers has often led to allegations of fake encounters and other human rights violations by security forces in disturbed areas while questioning the indefinite imposition of AFSPA in certain states, such as Nagaland and J&K. Various human rights activists and groups have said that the AFSPA has led to human rights violations, while allowing members of the armed forces to operate with impunity.

Manipur’s Irom Sharmila has been one if its staunchest opponents, going on a hunger strike in November 2000 and continuing her vigil till August 2016. Her trigger was an incident in Malom, where 10 civilians waiting at a bus stop were allegedly gunned down by the 8th Assam Rifles.

In 2004, following the alleged custodial death of a woman arrested by the armed forces, the Union government constituted a committee headed by a former Supreme Court judge, justice BP Jeevan Reddy, to review AFSPA. In 2005, this committee recommended that AFSPA be repealed, highlighting that the Act has become “a symbol of hate and an instrument of discrimination and high handedness”.

The committee said: “It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). For that purpose, an appropriate legal mechanism has to be devised.” It suggested the amendment of the Unlawful Activities (Prevention) Act by inserting new provisions in respect of northeastern states to provide for specific powers of the armed forces in the region. The report, clearly, has not been accepted by the Centre.

In 2007, the fifth report on public order of the Second Administrative Reforms Commission also recommended that AFPSA be repealed. “Repeal of AFPSA would remove the feeling of discrimination and alienation among the people of the northeastern states,” stated the Commission, adding it would be more appropriate to recommend insertion of appropriate provisions in UAPA.

In 2013, the justice JS Verma

Committee, constituted to recommend amendments to Criminal Law, also recommended that the continuance of AFSPA in conflict areas needs to be revisited in order to extend legal protection to women. The committee emphasised that women in conflict areas were entitled to all the security and dignity that was afforded to citizens in any other part of the country. It recommended bringing sexual violence against women by members of the armed forces or uniformed personnel under the purview of criminal law; taking special care to ensure the safety of women who are complainants and witnesses in cases of sexual assault by the armed forced; and setting up special commissioners for women’s safety in all conflict areas.

Constitutional courts:

Validity of AFSPA as well as some specific provisions of the legislation have come under the judicial scrutiny of the Supreme Court over concerns of human rights violations and the federal structure.

The Delhi high court, in Inderjit Barua vs State of Assam (1983) held that the governor is empowered to declare any area of the state as “disturbed area” and that this power could not be termed arbitrary on ground of absence of legislative guidelines. The high court also affirmed the authority given to non-commissioned officers of the armed forces to open fire.

In Luithukia vs Rishang Keishing, (1988), Gauhati high court had the occasion to examine the scope of Section 4 of AFSPA in authorising the armed forces with powers to shoot and to make arrests without a warrant. The armed forces must act in cooperation with the district administration and not as an independent body, ruled the HC as it also laid down guidelines that operations conducted by the armed forces should be in tandem with the local administration.

The Gauhati HC, in Horendi Gogoi vs Union of India, (1991), held that in case of arrest of any person, army authority is duty bound to hand them over to the officer-in-charge of the nearest police station with least delay.

In 1998, a Constitution bench of the Supreme Court upheld the constitutional validity of AFSPA in Naga People’s Movement of Human Rights Vs Union of India. The five-judge bench maintained that Parliament had the authority to pass AFSPA, adding the Union government was obligated under Article 355 to defend each state against external aggression and internal strife, as well as to ensure that each state’s government operates in compliance with the Constitution’s provisions. At the same time, the Constitution bench held that a grave situation of law and order must occur for a region to be declared a “disturbed area” and that no arbitrary and unguided power has been conferred in the matter. The top court further ruled that Section 3 of AFSPA cannot be construed as conferring a power to issue a declaration without any time limit, adding there should be periodic review of the declaration before the expiry of six months.

The Constitution bench also ordered that the Army Headquarters’ “Dos and Don’ts” be followed by armed forces deployed in “disturbed

areas”. These instructions stated that a person should not be kept in custody for a period longer than required and should be handed over to the nearest police station; no force should be used, except in case of an attempted escape; and third-degree methods should not be used.

Deciding to order a probe into 1,528 cases of alleged fake encounters in Manipur in the last 20 years, the top court in 2016 said that indefinite deployment of armed forces in the name of restoring normalcy under AFSPA “would mock at our democratic process”, apart from symbolising a failure of civil administration and armed forces.

The court held that “ordinarily our armed forces should not be used against our countrymen and women” and that “every person carrying a weapon in a disturbed area cannot be labelled a militant or terrorist or insurgent” and be killed without any inquiry.

Critical of the continuation of AFSPA in Manipur even after almost 60 years of its imposition, the court said that “normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment... as it would mock at our democratic process.”

The top court ordered a probe by an SIT of CBI as it acted on a report by a court-mandated commission headed by former judge N Santosh Hegde, which examined six cases involving seven killings, and held that all these encounters were fake. While the last status report was submitted by CBI in 2018, the matter is still pending, and has not been effectively heard in the last three years.