By Astha Deep
Published On: December 08, 2021 at 19:40 IST
Introduction
The Armed Forces Special Powers Act 1958 came into being in the context of the uproar in the North Eastern areas of India whose control was difficult to manage. The AFSP Bill was passed successfully in both the houses and also approved by the President on September 11, 1958.
It gives the armed forces certain ‘special powers’ in the specifically ‘disturbed areas’. It is applicable in Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. This power shall come into play to ‘‘maintain public order”. This wide range of powers is to shoot, arrest and search in te name of “aiding civil power”.
Legal and Constitutional Aspects
The Armed Forces Special Power Act was applied to Manipur and Assam in 1958 then it was amended in 1972 to be applicable to all Seven Sisters of India.[i]
The Provisions of AFSPA is discussed in detail below:
- Section 2, defines the Act but leaves many terms unclear. Section 2(b) denies the meaning of “disturbed area”
- Section 3, talks abut the declaration of a disturbed area. But the main issue is that it doesn’t justify under which circumstances an area shall be declared as disturbed but the authority. The ambiguity of he provision is challenged in the Indrajit Barua Vs State of Assam[ii]. In this case, it was argued that the meaning of the disturbed area is subjective as it depends on the understanding of the Governor of the State or the Central authority that declares this.
- Section 4, clear special powers of the military that are being given to them. Under Section 4(a) a military personnel be it commissioned or non-commissioned has got the power to fire, shoot or kill a person to anyone who acts against the law I order to ’maintain the public order’. Not only is the provision vague it also violative of the Right to Life- Article 21 of the constitution as this clearly deprives one to the Right to Life and Personal Liberty. This arbitrariness of the law goes to the extent of giving the power of arrest without any warrant mere basis of suspicion in Section 4(c) and to check, search and investigate a property without warrant in Section (d).
- Section 5, quotes the ‘the least possible delay’ for presenting a person arrested that is clearly violative of Article 22 of the Indian Constitution that clearly mentions a duration of 24 hours and not more before presenting to the Magistrate to the nearest.
- Section 6, gives blanket impunity to the armed forces from any legal proceeding without the express permission of the Central Government.On proper scrutiny of the AFSPA, the Act has been found to be constitutional with the reference to the case of Indrajit Barua Vs State of Assam.
Still, it’s easy to come down to the conclusion of the Act being draconian, arbitrary and dictatorial, If one follows the conversations on the Armed Forces Special Powers Act on media channels or online social media platforms.
As refocused out by Nasir Ahmad Lone and Vikas Bhandari, the rights granted by the Constitution are waived off and custodial deaths, fake hassles, rape, torture, mysterious discoveries and unmarked graves are a chine chilling yet common features of these “ disturbed areas” under the act.
Humanitarian Violations by AFSPA
In view of the blatant violations of the centenarian rights and unaccounted mysterious deaths as well as discoveries in the picture, colorful transnational associations like Amnesty International and Human Rights Watch came forward to fight for the rights of these affected under this act. As argued by Attar Rabbani, the Act renders pointless the Fundamental Right of Peaceful Assembly (Article 19 (b)), Protection in Respect of Conviction of Offences (Composition 20) and Remedies for Enforcement of Fundamental Rights (Composition 32) of the people abiding in “ disturbed area” as defined the Act.
Also, it also poses a trouble to other mortal rights and philanthropic laws. It has also been argued that the Act, by its veritably substance, violates the Universal Declaration of Human Rights (UDHR), the UN Body of Principles for Protection of All Persons under any sort of Detention and therefore the UN Principles on Effective Prevention and Investigation of Extra-Legal and Summary Prosecutions.
Recommendations by Various Commissions
In light of the connection of transnational laws in situations of fortified conflict, it was originally held that International Human Rights Laws don’t apply to situations of fortified conflict in a country, which are specifically governed by International Human Rights Law. Still, the distinction is now done down with and therefore it’s extensively believed that International Human Rights Laws apply inversely in situations of fortified conflict in a country.
As stressed by Amnesty International India, the Armed Forces Special Powers Act not only legitimizes immunity for sexual violence among women but also opens up the levees to extrajudicial killings in the declared disturbed areas.
It’s imperative to mention the reports of The Justice Verma Committee, The Justice Jeevan Reddy Committee and Justice Hegde Commission. The Committee on Emendations to Criminal Law ( also known as the Justice Verma Committee) was a three- member commission headed by the retired Supreme Court Judge, Justice Jagdish Sharan Verma, formulated by the Central Government to review the laws against sexual assault in December, 2012.
In the total 657 runner report unrolled by the commission, it’s mentioned about how the soldiers Special Powers Act legitimizes the impunity against sexual violence against women and how marginalized and neglected are the legal aids given to women in disturbed and disaccorded zones.[iii] It emphasized on how the women in equivocal areas are inversely entitled to security and quality as they’re in mainstream lands of the country. In its recommendations, the commission talked about how similar offences must be brought under the horizon of the ordinary felonious law.
An correction to the AFSPA to remove the demand of previous permission from the Central Government for executing security help for certain crimes involving violence against women was also recommended. Insofar the Justice Hegde Commission is concerned, it primarily talks about the lack of enforceable safekeeping rights at the root position against the “ broad powers” given to the fortified forces.
Along the same lines, The Justice Jeevan Reddy Committee appointed by the Central Government, headed by Justice B P Jeevan Reddy with an end to review the act, said how the impugned law had come “ a symbol of oppression, an object of hate and an instrument of demarcation and high headedness” and suggested that the act should be repealed..Still, the Centre emphasized on clinging to the perpetration of such an Act as it fulfilled the main reason behind its actuality – National Security.
In light of the constitutionality of the soldiers Special Powers Act, a robust pillar on which the reality of the act exists despite multiple claims of it being inadequate according to the Indian Rule of Law and mortal rights is the corner case of Naga People’s Movement in Human Rights Vs Union of India[iv], where the constitutionality and the operation of the Armed Forces Special Powers Act on the countries was questioned.
In view of the girding data and circumstances of the case, it was held that the Parliament was competent to legislate the Armed Forces Special Powers Act in exercise of the legislative power conferred thereon under Entry 2 of List 1 (which talks about Naval, Military and Air Forces or the other soldiers of the Union) and Composition 248 (elucidates the administrative power to make any law with respect to any matter not enumerated in the Concurrent or state list), read with Entry 97 of List 1 (any matter not enumerated in list 2 or list 3).
Uproar in Nagaland
The current unrest in Nagaland and it’s border is the point of debate in the parliament and new rooms. There has been massive protest on the heinous killing of 14 civilians by soldiers and thus a major festival, of the State has been cancelled.
The Armed Forces Special Powers Act, 1958 has been debated upon and been requested by the State Government to be repealed. A special Investigation team has also been appointed by the Cabinet after the killing of civilians. The 10-day festival marking the statehood of Nagaland attained in 1963 has been kept on hold in the honour of the dead. This controversial provision gives immense power at the hands of the armed forced in the “disturbed areas”. This is not only ambiguous but also very disturbing. One of such cases is the Extra-Judicial Execution Victim Families Association Vs Union of India[v] where nearly 1528 encounter incidents were reported by the UN which were unjustified on human grounds.
Conclusion
Analyzing the legalities of AFSPA has been quite intriguing. It has been declared constitutional the hon’ble Delhi High Court and the Reddy Committee that was established after Irom Chanu Sharmila took fast unto death. But, still it questions not only the constitutional provisions of India but also stands an interrogatory mark on humanitarian ground as well. Moreover if the provisions when tallied with the procedures of Code of Criminal Procedure are found to be misleading and non-congruent. But since it is effectively reasonable on paper after meticulous scrutiny, this Act stands repealed.
ABOUT THE AUTHOR
The author, Astha Deep , is a 1st year BBA-LLB student at Chanakya National Law University, Patna. Having keen interest in dealing with complexities of legal field has been her keen source of motivation. This has helped her express her cognitive opinions through writing blogs and research papers. She possesses deep curiosity in Corporate laws and aims to contribute in that field. She is an experience collector and learner for life exploring various fields of both law and life.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
[i] Armed Forces Special Power Act 1958
[ii] Indrajit Barua Vs State of Assam AIR 1983 Delhi 513
[iii] Law Commission of India, Justice Jeevan Reddy Committee
[iv] Naga People’s Movement in Human Rights Vs. Union of India, SCC 109 : AIR 1998 SC 431
[v] Extra-Judicial Execution Victim Families Association Vs Union of India (2) AIR 2013 SCC 493