THE ARMED FORCES (SPECIAL POWER) ACT, 1958 (AFSPA): IS IT A BLOT ON DEMOCRACY
M.S. HUSAIN, ADVOCATE
3/4/20249 min read
The Armed Forces (Special Power) Act, 1958 (AFSPA) was passed by the Parliament in September, 1958. While introducing the Bill in the Parliament in August, 1958, the then Home Minister Shri G.B. Pant had justified its necessity to tackle the menace of militant Nagas, who having formed the Naga Federal Government (NFG) under A.Z. Phizo had declared themselves as independent1. The law was enforced, initially, only for six months. Since then, it has been applied in many other States, where militants have taken up arms against the State and currently, in addition to Manipur and the Jammu and Kashmir, it is enforced in Assam, Nagaland, Tripura and Arunachal Pradesh2. It was also used in Punjab when the state was engulfed by the Sikh Khalistani movement. The AFSPA was invoked in Kashmir on July 5, 1990. Subsequently, Jammu was also brought under this Act on August 11, 1990 temporarily and then re-imposed in 2001 where it still remains operative. The AFSPA was applied in Manipur in September, 1980 and since then it has remained applicable. It is also unfortunate that even the government has made no efforts to educate the public about the true nature and necessity of retaining AFSPA and that’s why the Act has become a political football and thus, this Act seems like an arbitrary Act which has no rules and regulations and politician can use this as they want. Agitation approach adopted by some organizations in Jammu and Kashmir and Manipur against AFSPA. Consequently, anti-national elements in these States, who are mostly the collaborators and sympathizers of militancy and some disgruntled politicians, have started exploiting the situation. Presently, this Act is in hot debate due to Nagaland issue.3
STATUTES OF AFSPA, 1958
Section 4(a) of Armed Forces (Special Power) Act, 1958:
Section 4: Special Powers of the armed forces.— Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, (a) if the State 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;
COMMENT:
The above mentioned provision of the Armed Forces (Special Power) Act, 1958 passed by Indian Parliament, the largest democracy in the world, clearly shows dictatorship which is not in consonance with Constitutional guarantees “Right to Life and personal Liberty” under Article 21 and “Right to Equality before Law and Equal Protection of Law” under Article 14 of the Constitution of India, 1950. This Act i.e. AFSPA gives right to the concern officials to fire upon the public to maintain public order. However, it forgot to consider the fate of human error while making any decision as happened in Nagaland recently.
Is it possible to maintain peace and orderly life by killing and arresting people unlawfully?
No, absolutely not.
There are some States like Albania, Australia, Belgium, Canada, France, Greece, Mexico, South Africa and United Kingdom4 that are abolishing the ‘death penalty’ also meaning thereby they are giving a chance to live even to the criminals while we are making laws to kill our people itself, and of course it is a very unfortunate part of our nation because we are not following our Constitution…. regard with this statement in the most eminent case in the history of Indian Judiciary, Kesawananda Bharti v. State of Kerala5, the Hon’ble Supreme Court furnishes the best illustration of judiciary’s zeal to incorporate the principles of natural law in the constitutional jurisprudence. Adopting the 20th Century revivalist approach to the natural law philosophy, the Hon’ble Supreme Court ruled that fundamental rights are not absolute and immutable but they are relative in nature and changeable in order to build a ‘just’ social order6. The Supreme Court affirms the doctrine of basic structure in Minerva Mill Ltd. v. Union of India7. But with the decision in Maneka Gandhi v. Union of India8, the scope of natural justice principle now extends even to purely administrative actions.
By the above contentions we can say that we are not going to follow the natural justice with regard to AFSPA because natural law philosophy occupies an important place in the realm of politics, law, religion and ethics from earliest times. It must be noted that the principles of natural law find a prominent place in the Constitution of India9 which plays important role in promoting peace and justice and protects public against injustice, tyranny and misrule.
Thus by the above arguments and the views of the Hon’ble Supreme Court and Scholars, we can see that there is no place of natural justice in AFSPA. Law commission has submitted its 262nd Report regarding capital punishment and has mentioned that capital punishment except rarest of the rare cases should not be allowed while AFSPA is totally arbitrary Act and there is no consideration of it. Moreover, it allows killings even without judicial scrutiny.
PRACTICAL EFFECT OF SECTION 4 (a) OF AFSPA, 1958
Just imagine for a moment that if you’ll be locked in your house by sunset then how you will feel. This is the basic topic of discussion and we cannot imagine the situation of States where people are bound to live in their respective house only and if they’ll be unable to follow the same, they’ll be killed. Meaning thereby, there is no Right to Life and Liberty to the people who are living in the locality where AFSPA is applicable.
The officials covered under AFSPA do very crucial and harsh duty there because they use to vex the local people by entering in their house and search the house and thus they use to vex the females of the house and beat brutally to the males of the family. There are some cases in which rape cases were also found but could not be registered due to fear because they have to live among these officials. Thus we can say that this is certainly a blot on our Democracy.
Section 4(c) of Armed Forces (Special Power) Act, 1958 states that 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.
COMMENT
Thus the AFSPA is giving special power which is continuously being misused by the concern officials and the forces. As we have seen under section 4 (c) that any person can be arrested just because of the reason of doubt whereas our Constitution provides specific rights to the citizen under Part-III of the Constitution of India, 1950. We can see the entire Act is giving special power to officials and on the other hand it gives some guideline also which are being followed or not, is unknown.
AFSPA AS DRACONIAN LAW
AFSPA is an act which is responsible for increasing crime rates and all evil in disturbed States or those States where AFSPA is applicable. These Armed Forces misuse their power and authority given by the Act to protect the people who are suffering from terrorism or revolution. But they use to go in the home of innocent people and misbehave with the male members of the home and play with the dignity of women. They kill the innocent people and declare them terrorist. They rape women and do so many criminal acts which can’t be done by the criminals also.
Thangjam Manorama Case
Thangjam Manorama was a Manipuri woman who on July 10, 2004, was picked up from her home by the Indian Paramilitary Unit, 17th Assam Rifles on uncertain allegations of being associated with People’s Liberation Army. The next morning, her bullet-ridden corpse was found in a field. An autopsy revealed semen marks on her skirt suggesting rape and murder.10
The failure to assign culpability in the alleged rape and murder case led to widespread and extended protests in Manipur and Delhi.
Five days after the killing, around 30 middle-aged women walked naked through Imphal to the Assam Rifles headquarters, shouting: “Indian Army, rape us too… We are all Manorama’s mothers. Padma Shree author M.K. Binodini Devi returned her award in protest. Protests have continued in 2004 and over the years.
In early 2012, the Justice Varma committee includes measures for reviewing AFSPA as part of a set of steps to reduce violence against women; these measures are partly been attributed to the protests involving Manorama.
Recently, in December 2014, in a case filed at Supreme Court of India, the apex court told to government to pay a compensation of Rs. 10 lakhs to Manorama’s family. Case is accepted for hearing in the court. It was seen as one of the partial victory, but the doubt remains the same as even in past, compensations were declared for victims of AFSPA, but courts could not spell any judgement against culprits for awarding punishment11.
2. Recent Case in Karbi Anglong, Assam
On 6th April, an Army regiment entered a village in Karbi Anglong, and molested and injured many women. Around eight jawans carried off a 15 year old girl into the forest; when her mother and another woman rushed to rescue her, the jawans raped all three. An ICDS worker who tried to intervene was also injured, and a three-year-old baby was hit with the butt of a rifle. Although protests have been ongoing in Karbi Anglong ever since the rape, none of the jawans have been arrested – the police say they cannot make an arrest because of AFSPA. Instead, the victims are being pressurized and terrorized into withdrawing their complaints.12
The Justice Verma Committee had observed, “Systematic or isolated sexual violence, in the process of Internal Security duties, is being legitimized by the Armed Forces Special Powers Act, which is in force in large parts of our country.” The Verma Committee had recommended that the continuance of AFSPA in the law books be reviewed. The Committee had also recommended that the requirement of central government sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged. Not only that, the Verma Committee had recommended that complainants of sexual violence in conflict areas must be afforded witness protection, so that they can give witness without fear of reprisal by the Army against their families; and special commissioners should be appointed in conflict areas to monitor and prosecute for sexual offences.
There are so many other incidents which are very shameful to us and blot on the Democracy and our Constitution also which provides equality before law. But here there is no right to equality and equality before law as given under Article 14.
RELEVANCE OF AFSPA
There is no relevance of AFSPA in Indian Law and Order because of the reason that AFSPA provides some specific discretionary power in some specific situation which has been misused times and again, some of these events have been mentioned above.
OTHER LAWS TO CONTROL INTERNAL DISTURBANCE
Section 129 and Section 130 of Code of Criminal Procedure, 1973 allows to call the government take help of the Armed Forces in case of internal disturbances. So we can see that there is no need of other laws like AFSPA to be imposed upon the civilians in the name of their security which harass the civilians.
We know very well that when AFSPA was passed, there was need of it because India was having no that much central police forces to control the situation at that point of time but now a days there is no use of AFSPA other than harassing the civilians. We must abolish the AFSPA because of the reason that we are having substitute of it to control any arm rebellion.
NEGATIVE EFFECT OF AFSPA
As we know that there is nothing more important than dignity of women and life of a human being. And misuse of AFSPA is harassing the dignity of women and taking the life human being which is against the natural law. Hugo Grotius (1583-1645) treated “natural law as immutable which cannot be changed by God himself”13. And to protect the life and dignity of, people of these localities would be rebellion and of course they are doing it and results are before us.
CONCLUSION
As we have seen different aspect of misconduct and misuse of authority given by AFSPA, we can conclude the issue as Government must abolish AFSPA because of the reason that there are so many options with Government which substitute AFSPA. Because this Act is purely deals with the positivism theory while Indian Constitution largely deals with Natural Law Theory. Thus we can see that this Act is totally against Article 14 & 21 of the Constitution of India, 1950.
Earlier Indian Judiciary was also dealing with positivist theory14 but now it deals with Natural Law Theory or Liberal Theory15.
Since, the situation for which AFSPA was enacted is not at all in existence. Hence, we can say that AFSPA should be abolished for the sake of justice, equity and good conscience.
End Notes:
By Lt Gen (Retd.) O P Kaushik, Armed forces special powers act (AFSPA), 14/09/2015, http://www.defsecmanthan.org/, last seen on 15/09/2015.
Subs. By Act 69 of 1986, sec. 43, for “Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura and the Union Territory of Arunachal Pradesh” (w.e.f. 20-2-1987).
www.infoplease.com/ipa/A0777460.html, last seen on 15/09/2015
AIR 1973 SC 1461
Observation of Mathew, J. in Kesavananda Bharti’s case which is also called ‘Fundamental Right Case’ [AIR 1973 SC 1461]
AIR 1980 SC 1789
AIR 1978 SC 597 (626)
Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, 164 ( 7th ed, 2013, Central Law Agency)
https://www.thehindu.com/news/national/manorama-death-brutal-torture-probe-panel/article6596278.ece
https://en.wikipedia.org/wiki/Thangjam_Manorama, last seen on 17/09/2015
By Kavita Krishnan, http://www.youthkiawaaz.com/2015/04/indian-army-rape-in-karbi-anglong/, last seen on 17/09/2015
Supra note 8
See A.K. Gopalan v. State of Madras (AIR 1950 SC 27)
Hon’ble Justice Bhawati and Justice Krishna Iyer are known as champions of Liberal Approach.