THE ARMED FORCES SPECIALS POWERS ACT (AFSPA): NEEDS TO BE REVISITED IF NOT REPEALED

Author: Dr. MURSHED MUSSARRAF CHOUDHURY.

Abstract: The Armed Forces (Special Powers) Act, 1958 is one of the oldest and most controversial laws in independent India. In this particular law armed forces are granted immense powers for carrying out their operations, most importantly these powers are unrestricted and unlimited which shows its dangerous nature. After the enactment of AFSPA, a sharp increase has been reported in the number of extra-judicial killing, rape, detention, illegal curfew in the North Eastern States carried out by such armed personnel. Armed forces have been granted the immunity by this law. A number of the sections in this Act largely violate the fundamental rights of the citizens which are guaranteed by the constitution and the International Bill of Human Rights. This Act has always been defended and promoted by the successive governments in the center and the states by arguing that it is to protect armed forces in conflict-ridden areas as well as to suppress the secessionist movements in the North East. This paper will give light on the historical background of the Act and goes on to examine how the sections in this act violate different principles of human rights. This article will also discuss the constitutional validity of the act in a democratic country like India and how it has been challenged in different courts. 

Keywords: AFSPA, security forces, insurgency, North-East India, extra-judicial killing, human rights,

The Armed Forces Specials Powers Act (AFSPA) has its colonial legacy dating back to August 15, 1942. The Armed Forces Special Powers (Ordinance) was introduced by the Viceroy of India, Lord Linlithgow to quell the rising demands of independence after the Quit India Movement started by Mahatma Gandhi. Authorities had faced stiff resistance from the Indian protesters which was suppressed by the Linlithgow with iron fist killing more than two thousand people and a number of others had been detained and tortured. After independence from the British rule, the insurgency in North-East India has become a challenging task for the government of India. Naga districts in Assam which had the border with Myanmar (then Burma) have become the center of insurgency movements and started demanding the independence from the Union of Indian. Union government led by Jawaharlal Nehru was strongly against any type of relaxation, not even a demand for autonomy. In 1954, when the insurgency was at its peak, Nehru government retaliated by sending thousands of troops resulted in a brutal cycle of insurgency and counterinsurgency which is still going on.[1]

I.                  BACKGROUND

In 1958, the government of India brought legislation in parliament to tackle the insurgencies in Manipur and Assam which are known as Armed Forces (Specials Powers) Act of 1958 and got the nod by the President of India on 22nd May 1958. The government has argued that by bringing such a law it is trying to protect its armed forces when it has to deal with Naga insurgents. By putting the bill in parliament government also claimed that it had become necessary to adopt such a measure for the protection of the civilians as well those who are living in neighboring Assam and Manipur. Surprisingly, lawmakers from the north-eastern states did not oppose the bill and only three members had shown their reservations against it which was later passed by the parliament with a huge majority in its favor.[2] Prime Minister Nehru has stated in parliament, “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”.[3]

II.               STATES COME UNDER AFSPA

The Act was originally made only to tackle the rising incident of insurgency in Naga districts of Assam which are bordering with Myanmar but later it was extended to all seven states of the North East. In 1983 government has introduced Armed Forces (Punjab and Chandigarh) Special Powers Act and was extended to Punjab and Chandigarh. However, it was repelled in 1997. In the year 1990, the Armed Forces (Jammu and Kashmir) Special Powers Act was enacted which came into force in the same year. The act is in force in Assam since November 1990, after the United Liberation Front of Assam (ULFA) took up the arms and waged war against the state. However, in Meghalaya only in a small area which is next to its boundary with Assam is covered by this act. In Arunachal Pradesh, the AFSPA is in force in three districts only, viz. Tirap, Changlang, and Longding, and few pockets bordering with Assam. In Mizoram after Mizo Accord has been signed in 1986, the act has not been implied. In the case of Nagaland, AFSPA has existed only since 1961, even before the state has been created because it was part of Naga Hills district of Assam. In 2015 government has withdrawn AFSPA from Tripura which was there since 1997.[4]

III.            AFSPA AND HUMAN RIGHTS

Six decades have passed since the AFSPA is introduced, and it has always been criticised by various sections of the society including activists, lawyers, scholars, and commentators from national and international communities. But it is not the case of AFSPA only; there are a number of other laws like AFSPA which are largely controversial in nature that is existing in present India. Most of them are enacted to deal with insurgents or to curve terrorism-related activates. But on numerous occasions, it was largely been used by state machinery to suppress the rights of minorities, indigenous people or tribal,  which resulted in gross violation of human rights. These laws include the Maintenance of Internal Security Act (MISA), Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention of Terrorism Act (POTA), the Disturbed Areas Act (DAA), and the Armed Forces Special Powers Act (AFSPA), the Assam Preventive Detention Act, National Security Act, Essential Services Maintenance Act and the Armed Forces (Jammu and Kashmir) Special Powers Act (1990). In the name of maintaining law and order, these laws have resulted in serious human rights violations of ethnoreligious and linguistic minorities living in areas where these laws are implemented.[5]

In Manipur, Jammu & Kashmir and other parts where AFSPA is imposed the security forces have often been accused or involved in the extra-judicial killings of innocent civilians and many other inhuman activities which directly contradict the fundamental rights of the people. Several NGOs working for the protection of civil rights and many other international human rights organizations have considered the AFSPA a ‘draconian’ and ‘inhuman’ in nature, as the act which largely violates the basic human rights enshrined by the constitution and the International Bill of Human Rights. They further argue that India is a signatory member of the International Covenant on Civil and Political Rights 1966 (ICCPR) since April 10, 1979. However, the United Nations Human Rights Committee, in 1991, found Section 4 of the AFSPA is violating Articles 6, 9 and 14 of the ICCPR. According to the section 4 of the AFSPA commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces have the right to kill people by shooting based on mere suspicion in a disturbed area. It also allows security forces to destroy hideouts or camps which may be used by the insurgents or armed groups on suspicion.[6] If we talk about all important and relevant international human rights and humanitarian law standards, there is no justification for such an act as the AFSPA. The AFSPA, by its form and in its application, violates number of provisions of the Universal Declaration of Human Rights 1948 (the “UDHR”), the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra-legal and summary executions.[7] The Act has become a serious concern for the human rights activists in the regions of its enforcement, where arbitrary killings, torture, cruel, inhuman and degrading treatment and enforced disappearances are happening on a regular basis.

IV.            AFSPA AND ITS CONSTITUTIONAL VALIDITY

Ever since the AFSPA became a law in 1958, a constant debate is going on whether the Act is constitutionally valid or is it an unconstitutional piece of law. A number of times AFSPA has been challenged in Supreme Court as well as in different High Courts. Various commissions and committees have been formed at different points of time to challenge the constitutional validity of the Act. In the case of Naga People’s Movement of Human Rights v. Union of India (UOI) the Supreme Court of India has suggested few guidelines for the armed forces who are acting in areas under the AFSPA. Numbers of new provisions were laid down by the court so that security forces could not be misused the Act. Moreover, the court further decided that the Act is a law in respect of maintenance of public order enacted in the exercise of legislative power and not open to challenge. The Act has been criticized widely for depriving people residing in such disturbed areas of certain rights as granted by the Constitution such as the Right to Life as per Article 21 and Protection against arrest or detention as per Article 22.

In Indrajit Barua V. The State of Assam and Anr, under Article 226 of the constitution, a writ petition was filed in the Gauhati High Court. The writ petitions have challenged that “few legislative actions of the State of Assam and the Parliament and consequent administrative actions of the Governor of the State of Assam if tested on the touchstone of the postulates of life and personal liberty were ultra vires. The two enactments challenged were the Assam Disturbed Areas Act, Xix of 1955 enacted by the Assam legislature and the Armed Forces (Assam and Manipur) Special Powers Act, 28 of 1958 read with the Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972 (No. 7 of 1972) enacted by the Parliament. The Act, particularly Sections 2, 3, 4 and 5, has been challenged on the grounds of Articles 14, 19 and 21 of the Constitution and also on the grounds of the legislative competence of the Assam legislature and the Parliament.”

In 2005, Justice B.P. Jeevan Reddy Committee clearly advocated the revocation of the Act, which people in Manipur, Jammu & Kashmir and elsewhere in the North-East have been demanding for several years. The Committee has observed that ‘the Act is too sketchy, too bald and quite inadequate in several particulars’. The committee also observed that ‘the Act, for whatever reasons has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness’. Admitting that the Supreme Court had upheld the constitutional validity of the Act, the Committee stated that judgment "is not an endorsement of the desirability or advisability of the Act." The highest court may have approved the capability of the legislature to endorse the law. On this point, the Committee's findings are clear: "It is highly desirable and advisable to repeal the Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the [North-East] region that the Army should remain (though the Act should go)."[8]  

The committee has rejected the primary submission made by the armed forces in favor the continuation of the AFSPA, the Committee stated that Section 49 of the Unlawful Activities (Prevention) Act, 1967 (ULP Act) is protecting forces against legal proceedings who are acting in good faith. The committee also realized that "while providing protection against civil or criminal proceedings in respect of the acts and deeds done by [the armed] forces while carrying out the duties entrusted to them, it is equally necessary to ensure that where they knowingly abuse or misuse their powers, they must be held accountable therefore and must be dealt with according to the law applicable to them.". Consequently, the Committee suggested amending the ULP Act to integrate measures that would control the already permissible conduct of security forces in areas where they are deployed to fight terrorist activities and provide protection to ordinary citizens against possible abuse.[9]

A number of other prominent intellectuals have shared their concern and their reservation against AFSPA. British historian and political essayist Perry Anderson has expressed his view on AFSPA by stating that ‘perhaps the most sanguinary single piece of repressive legislation in the annals of liberal democracy’.

 Constitutional expert and political commentator A. G. Noorani who criticised the act and came down heavily on sections 4 and 6 of the act. He also made his reservation clear on honorable Supreme Court's decision which validates the Act in the year 1998. He further tried to compare it with its British government ordinance of 1942 and stated that ‘the Act of 1958 far exceeds the colonial ordinance of 1942’.He clearly put up some points and questioned Home Minister G.B. Pant on the Act’s constitutional validity by saying that “Article 21 of the Constitution says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Does the Hon. Minister feel that this is the procedure; he can shoot if it is a disturbed area that is the procedure prescribed by law. He can shoot. Anybody can be killed or shot at, but is this the procedure prescribed by law, does it go to that extent? Article 21 says that no person can be deprived of his life. Here any person can be deprived of his life by any commissioned officer; he can shoot.”[10] Which means Article 21 of the Indian constitution is alone can invalidate this act.

Christof Heyns, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, in his report on the UN Human Rights Council on 26th April 2013 opined that ‘retaining a law such as AFSPA runs counter to the principles of democracy and human rights. Its repeal will bring domestic law more in line with international standards, and send a strong message that the Government is committed to respecting the right to life of all people in the country.’

The Special Rapporteur has made his reservations on few controversial sections of the Act. He also mentioned in his report that the Act has allowed the use of lethal force by the security forces which is really disturbing in nature. He was very much critical on section 4 of AFSPA which includes: “Any commissioned officer, warrant officer, non-commissioned officer…may, in a disturbed area, (a) if he is of opinion that it is necessary to do so 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...” He also registered his protest on Section 6 of AFSPA and 7 of the Jammu and Kashmir AFSPA and stated that ‘these provisions directly violate the international standards on the use of force, including lethal force and the related principles of proportionality and necessity’.[11]

Another think-tank Dr. Walter Fernandes, who works at North Eastern Social Research Centre, Guwahati stated that "Instead of being a deterrent AFSPA seems to have become a tool of abuse in the hands of the armed forces as the number of killings in fake encounters show." Furthermore, he doubted the government’s intention as it continues with such a law by stating that there may be some other vested interests and people’s security is not the only one. By putting forward an example of the Home Minister Mr. P. Chidambaram’s lecture on February 6, 2013, at the Institute of Defence Studies in which Home Minister has clearly mentioned that ‘We can’t move forward because there is no consensus. The present and former Army Chiefs have taken a strong position that the Act should not be amended (and) do not want the government notification...to be taken back. How does the government...make the AFSPA a more humanitarian law?’ According to Mr. Fernandes "In other words, the government cannot even make the AFSPA more humane leave alone repeal because the successive army chiefs do not want it diluted".[12]

 Civil societies like Amnesty International, in its report on ‘Torture, Rape and Deaths in Custody in India’ stated: "When the provisions of this Act were scrutinised recently by the U.N. Human Rights Committee, established to monitor governments’ adherence to the International Covenant on Civil and Political Rights, one member of the committee drew particular attention to the manner in which laws can facilitate human rights violations: “In the section which gives immunity both from prosecution and from civil process I find a very dangerous word…. Purported is the dangerous thing because anyone killing anybody can say, ‘Well, I thought I was performing my functions.’ (H.R. Committee, 1040th meeting, 26.3.1991, in CCPR/C/SR.1040 at 60-1)."[13]

V.               LATEST DEVELOPMENTS

Few positive developments have been seen in the case of Assam and Manipur in recent past. The Union Home Ministry has decided to hand over the power to impose the ‘disturbed areas’ tag on respective state governments in Assam and Manipur. A small but affirmative step by the union government which means from now it will be the States’ which will decide either to continue the Act or revoke it. This is the first time ever since AFSPA has become a law central government has decided to give up its power to continue or discontinue it.[14]  

The home ministry has released an official statement and it stated that “...we have decided to rescind the power of invoking the AFSPA in two States for now: Assam and Manipur. The States are competent to decide whether they want to continue with it in entirety or impose it in a few pockets where disturbance is expected,” However ministry has cleared that except Assam and Manipur the status of AFSPA in all other states will be remaining the same. The home ministry has justified their stand on the continuation of AFSPA in Assam by stating that the nature of the threat from the insurgent groups like ULFA (I), the NDFB(S), the KLO and the KPLT have still remained the same.

VI.            CONCLUSION

Every state has its own legal system which is laid down to protect its civilians and maintain internal peace and security. The state has every right to take preventive measures in order to tackle terrorism, insurgencies and all other unlawful activities. But in the process, the authorities should always follow certain rules and regulation as well. The Section 4 of the Act empowered armed forces unrestricted power to arrest, search, seize and even shoot to kill has resulted in a large-scale violation of the fundamental rights of the citizens under Articles 14,19,21,22 and 25 of the Constitution.

An Act like AFSPA needs to be reviewed if not repealed, as it is clearly evident that a number of sections in this act is violating the basic fundamental rights which are granted by the constitution of India as well International Bill of Human Rights. The growing number objections and reservations registered by the different scholars, activists, writers, national and international organizations and particularly from the native people where this exists, are justifying a valid reason to revisit certain sections of the Act. In a number of cases in Manipur, Jammu & Kashmir and other places, armed forces have been found guilty of misusing this act and a rising number of extra-judicial killings have been reported. Thousands of innocent civilians have lost their lives; in the majority of the cases, it is proved that the victims had nothing to do with insurgency or terrorism which clearly shows that the Act is failing to achieve its very basic objectives. Data collected from different sources also indicated that in Manipur armed groups have been increasing constantly from four in 1980 to 20 in 2014.

The government should take appropriate measures and train its soldiers who are deployed in the areas where this law exists according to the United Nations Code of Conduct for law enforcement personnel. The authorities should start a surveillance mechanism to stop the frequent misuse of power by the armed forces and should train them to respect the human dignity at all times and give the highest importance to the human rights of all people. The said training should be made public as well and a complete transparency should be maintained regarding public accountability and human right issues. These few steps may bring the change in the areas where both the insurgents and the armed forces are facing the causalities and in the process, innocent civilians have become a subject of collateral damage. 

The author has presented this paper at “2nd International Conference on Contemporary Legal Issues- 2018”. Organized by The School of Law, Galgotias University, Greater Noida, U.P on March 24, 2018.

 [1]Peer, Basharat. ‘The Armed Forces Special Powers Act: A brief history’, March 8, 2014.  http://america.aljazeera.com/articles/2014/3/8/armed-forces-specialpowersactabriefhistory.html

[2] Ngaihte, Thangkhanlal. "Armed Forces in India’s Northeast: A Necessity Review." South Asia Research 35, no. 3 (2015): 368-385.

[3] Peer, Basharat. ‘The Armed Forces Special Powers Act: A brief history’, March 8, 2014. https://america.aljazeera.com/articles/2014/3/8/armed-forces-specialpowersactabriefhistory.html

[4]  Singh, Vijaita. ‘Assam, Manipur can now decide on AFSPA’, The Hindu, NEW DELHI, AUGUST 16, 2017. (http://www.thehindu.com/news/national/assam-manipur-can-now-decide-on-afspa/article19498849.ece)

[5]Saikial, Sailajananda. ‘9/11 of India: A Critical Review on Armed Forces Special Power Act (Afspa) and Human Right Violation in North East India’. Journal of Social Welfare and Human Rights, March 2014, Vol. 2, No. 1, pp. 265-279.

[6]JHA, U C. ‘Armed Forces and human rights’, THE HINDU, Aug 03, 2004, https://www.thehindu.com/op/2004/08/03/stories/2004080300251300.htm).

[7]‘The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the Northeast of India: Sanctioning repression in violation of India’s human rights obligations’, https://www.humanrights.asia/resources/journals-magazines/article2/1003/the-armed-forces-special-powers-act-1958-in-manipur-and-other-states-of-the-northeast-of-india-sanctioning-repression-in-violation-of-india2019s-human-rights-obligations.

[8]Varadarajan, Siddharth. ‘Repeal Armed Forces Act: official panel’, The Hindu, October 08, 2006, https://www.thehindu.com/todays-paper/repeal-armed-forces-act-official-panel/article18485943.ece.

[9]Ibid.

[10]Noorani, A G. ‘AFSPA: Licence to kill’, FRONTLINE, April 17. 2015, https://www.frontline.in/the-nation/afspa-licence-to-kill/article7048801.ece.

[11]Heyns, Christof. ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions Mission to India’, Human Rights Council Twenty-third session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, April 26, 2013, p. 6-7.

[12]Fernandes J, Walter. ‘AFSPA, the Supreme Court and Human Rights’,      https://www.academia.edu/27096729/AFSPA_the_Supreme_Court_and_Human_Rights.

[13]Noorani, A G. ‘AFSPA: Licence to kill’, FRONTLINE, April 17. 2015, https://www.frontline.in/the-nation/afspa-licence-to-kill/article7048801.ece.

[14]Singh, Vijaita. ‘Assam, Manipur can now decide on AFSPA’, The Hindu, NEW DELHI, AUGUST 16, 2017. (https://www.thehindu.com/news/national/assam-manipur-can-now-decide-on-afspa/article19498849.ece)