Part- I: Analyzing the Armed Forces Special Powers Act, 1958 (AFSPA)
The historical and political background behind enactment of AFSPA is imperative to note. The origin of AFSPA predates the independence of India wherein, it was promulgated as an ordinance in 1942 by Lord Linlithgow, the then Viceroy of India as a means to forcibly suppress the Quit India Movement.
The North-Eastern region of India has always been isolated - geographically or otherwise from the rest of India. So post-independence, with the reorganization of states wherein smaller states were merged with the Indian union, the act of merger was particularly opposed by the Nagas inter alia. They wanted to maintain their independent status owing to their different socio- cultural, racial and ethnic differences as compared to the rest of India.
#-A lot of unrest and violence was seen in present day Nagaland as a way of opposing the merger particularly in the then Naga Hills occupied by the Nagas due to increased anti state insurgency activities in the region.
As a way to curtail this rebellion, the Assam Maintenance of Public Order (Autonomous District) Act, 1953 was passed by the Assam government in the Naga Hills, yet violence and unrest persisted. A second attempt was made to curb the unrest in the then Naga hills region by passing of Assam Disturbed Areas Act 1955.
Similarly, insurgent activities were seen in Manipur as well. Thus, a need was felt to introduce a law which gave power to Assam Rifles- the paramilitary force of the region to contain the recurring insurgency problem. But the rebel/ insurgent forces were impossible to control and the government of the region felt the need to take assistance from the Central government to settle the problem of violence once and for all.
Finally APSPA came into being in 1958, which is a Central Legislation that gives special privileges, or extra ordinary powers to the armed forces to take control over the civilian matters under the garb of containing the rebellion forces in the region.
While the objective of AFSPA was to bring about public order and peace in an otherwise disturbed area, wherein the army and paramilitary forces have been endowed with special privileges and immunity, such exercise of unfettered power in the hands of the army has led to gross violation of human rights time and again.
In fact, when the bill was tabled for discussion in the Parliament, it was opposed by many such on grounds of being a lawless law. Despite such opposition, this draconian law was passed, and applies to most of the North Eastern states like Assam, the whole of Manipur (except Imphal) and Nagaland which are termed as disturbed regions owing to the recurrent insurgency problem and similarly has been extended to Kashmir which has its own share of militant groups and security issues.
##-AFSPA has been withdrawn from the state of Tripura recently in 2015 and from areas bordering Assam in both Meghalaya and Arunachal Pradesh in 2018 on grounds of reduction of insurgent activities in these regions.
CRITICAL ANALYSIS OF THE ACT:
Armed Forces (Special Powers) Act, 1958 is one of the shortest legislations ever enacted in India and remains one of the most controversial legislations even today. The act contains 6 sections in total.
Section 3 of the Act essentially states that once an area is declared as a disturbed area by the Governor or the Central Government, AFSPA automatically applies. The problem with this section is that there is no transparent mechanism to ensure what factors have actually made the such officials to declare a certain region to be a disturbed area and therefore, the power to declare a region to be a disturbed area is highly problematic and has mostly been used by ruling party to fulfil it’s own political interests and agenda facilitating some sort of fascist violence in those region if not directly participating in the human rights abuse.
The most important and controversial ones are Section 4 and Section 6 as these sections contravene the basic fundamental rights as enshrined under the Constitution which will be examined in the following section.
Use of Force:
Section 4(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 section is problematic for many reasons as it gives the license to kill or to shoot on site or use force as against any person in what is termed as a disturbed region.
This provision is directly in contravention of Article 21 of the Indian Constitution which is the heart and soul of our constitution. Right to life and liberty is so sacrosanct and inviolable, that it can’t be taken away even during times of emergency.
But by virtue of this provision, the paramilitary forces are given the right to kill or to shoot any person (rebel forces/ civilians alike) and that too at its own discretion, which amounts to a brazen assault on Article 21.
No distinction between innocent civilians vs rebel forces:
The second limb of this ambiguous provision talks about prohibiting the assembly of more than 5 or more people. This part of the provision is designed in a similar fashion as Section 129 of CrPC, 1973 but this term under AFSPA is riddled with ambiguity and flaw. First of all, it fails to make a distinction between a peaceful gathering of innocent civilians (5 or more people) and a violent rebellion force.
This essentially means that if it is observed the 5 or more innocent civilians have gathered in this region who have no role whatsoever in inciting a mob or engage in militant activities, the paramilitary forces can be deployed as a necessary means to control the situation. This in effect means that instead of actually restoring peace and harmony in the region, the paramilitary forces are actually looked down upon by the civilians and are rather seen as a symbol of hate & oppression.
Moreover, the provision of CrPC is not violative of Article 21 of the Constitution because it contains certain checks and balances, that is, such a power can be exercised by only using civil force not amounting to causing of death by a police officer not below the rank of sub inspector while, this section empowers even a non-commissioned officer to use force to the extent of causing death.
Power of arrest & detention:
Section 4(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"
This provision is again arbitrary and amounts to a blatant attack on the Indian constitution. Article 22 of the Indian Constitution as well as the provisions of the CrPC in particular has laid down rules as regards the power of arrest and detention.
The basic objective is to ensure that the state doesn’t use its power of arrest and detention arbitrarily and therefore these provisions provide some sort of checks and balances as against gross misuse of power in this regard. The procedural safeguards have further been elaborated in the case of DK Basu v State of West Bengal which the police ought to mandatorily follow while exercising its power of arrest and detention.
But such procedural safeguards stand suspended when it comes to this provision of AFSPA. The power of arrest & detention given under this provision is unlimited, giving room for highest amount of arbitrariness and in fact, the uncountable instances of gross human rights violation in the region stand as a testimony to this fact. Moreover, the power of search and seizure without warrant exercised under the provision also gives sufficient room for extreme arbitrariness.
Section 5: “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.”
The ambiguous term contained in this section is the time limit- “least possible delay”. As per Section 130 of CrPC, 1973 as well taking into consideration the constitutional provision of Right to life and liberty under Article 21, an accused must be produced by the Magistrate within 24 hours. This is a mandatory procedure so as to avoid unnecessary torture and custodial violence but in reality this section distorts that purpose as there is no straitjacket formula to define what is ‘least possible delay’.
In the case of Joginder Kumar v State of UP it was held if the investigation of the accused can’t be completed within 24 hours, then a prior permission or authorization of the magistrate was necessary for police or judicial custody of the accused.
The court further held that while judicial custody can be allowed for 90 days, the accused may be released on bail if the investigation is incomplete during that period of time.
But these procedural safeguards are NOT available to an accused under AFSPA. This is another reflection of the double standards of law (in this case the application of procedural rules of CrPC being curtailed or suspended in the regions where AFSPA is put in place whereas such provisions are uniformly applicable to all in the rest of the country) and therefore such a provision is violative of art. 14 of the Constitution as well.
Right to immunity:
Section 6 :No prosecution, 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.
This section is again a mockery of human rights. It is perhaps the draconian provision under the section and directly goes against Article 32 of the Constitution by granting blanket immunity to the armed forces.
In over six decades of implementation not a single soldier, paramilitary officer or army has been prosecuted for murder, rape and destruction of property in the north east despite rampant instances of such gross violation of human rights in the region.
The coverage of this Act continues in PART- II.