Introduction:
AFSPA gives armed forces special powers to maintain law and order in “disturbed areas”. They have the authority to prohibit the gathering of five or more people in an area. They can even open fire if they feel that situation is not under control. If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search premises without a warrant, and ban the possession of firearms[1]. Any person can be arrested or taken into custody and may be handed over to the nearby police station with a detailed report stating the circumstance of the arrest. A disturbed area is the one which is declared so through a notification passed under Section 3 of the Armed Forces Special Powers Act. An area is considered disturbed on account of religious, racial, linguistic,communal, or regional disputations between members belonging to or between groups, castes, or communities. The Central Government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area following which a notification should be made in the Official Gazette. As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”[2]. This article will verify the constitutional validity of the Armed Forces Special Powers Act.
Supreme Court Ends Armed Immunity:
In a case, the Supreme Court ended armed forces immunity by stating that every death caused by armed forces in disturbed areas must be looked into. “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. Law should be uniformly applicable. This is the requirement of democracy, Rule of Law, and the preservation of individual liberties,” a bench of Justices Madan B. Lokur and U.U. Lalit said in an 85-page judgment. It came at a time when hundreds of families belonging to Manipur submitted a plea for a probe by Special Investigative Officer into 1528 fake encounters involving the Army and Police.
Need For a Transformative Law:
Now it is high time that we change the law. It results in human rights violations as jurisprudence has also changed on fundamental rights provided to us in the Constitution. In the case of Extra-Judicial Execution Victim Families Association v. Union of India[3], the court had laid down the guidelines regarding the inquiry to be conducted for the fake encounters in the state of Manipur[4]. This decision was necessary to check whether or not there is an influence of the Government in power relating to encounters done in state of Manipur. In the Naga People’s case[5], the arbitrariness and the unconstitutional powers under the act were dealt with. Special contentions were raised against the immunities granted to the armed personnel; specifically the power to shoot. This led to the formulation of some obligations before implementing any provision of the act, namely-
- A person should not be kept in custody for an invariably longer period and should be transferred to the custody of the nearest police station as soon as he is arrested.
- No physical force should be used on the person as long as he does not try to escape.
- Third-degree treatment should not be used against those arrested or under suspicion to extract information or confessions or to coerce them to do the same.
- Armed forces only ought to arrest a person without conducting any interrogation.[6]
In the famous case of IndrajitBarua v. State of Assam and Anr.[7], it was held that the state should protect the rights of citizens granted under Article 21 where AFSPA is in place. In the Shopian case,[8] dead bodies of two women who went missing were found near orchards from where they returning raped and killed by armed forces who were deployed nearby. Then in the case of Luithukla v. RishangKeishing[9] where habeas corpus was filed, the Guwahati High Court necessitated for the army to follow the Code of Criminal Procedure but there was a lack of enforcement.The army officers had instead accused the judges of the High Court for weakening the powers of the military forces deployed in the north-east[10].
The Necessity of AFSPA:
Protect borders:
With the powers given by AFSPA, the armed forces can protect borders for decades.
Effective counter-insurgency:
A strict law needs to tackle the insurgency throughout Kashmir and AFSPA fulfills it.
The morale of the army:
AFSPA boosts the morale of the army as removal of it can cause militants to motivate locals to file suit against the government.
Operation flexibility:
A legal statue ensures organisational flexibility and the utilisation of the security capacity of the state. Armed forces can fulfill their assigned role.
Adequate safeguards:
- Section 5 of the Act mandates that arrested civilians should be handed to the nearest police station with the least possible delayalong with a report of circumstances that led to the arrest.
- It has been instructed that all the arrested suspects should be handed over to civilian authorities within 24 hours.
- According to the army’s guidelines, a fire may be opened in towns and villages only in self-defence and that too when the source of terrorist or militant fire can be identified[11].
AFSPA and Human Rights Violations:
It is high time that the Government must look into the law and repeal it.Operation Bluebird is an incident that was reported by some of the prominent international human rights organizations. During January 1987, almost 30 villages occupied by the Nagas in the state of Manipur were covered for committing violence that included torture, killing people in masses which also added to heinous acts of sexual harassment, theft, and other criminal activities which were carried on for many days[12]. It is also important to note that even authorities are not allowed in the place where such activities are carried on. AFSPA has made people live their whole life in curfew-like conditions. The decisions taken in these disturbed areas by the Government cannot be challenged in any court of law. It becomes inhumane and also against our Constitution which guarantees the right to live with dignity.
Conclusion:
There are issues in AFSPA which needs to be looked into. But if AFSPA is repealed, then the army at the borders would not be able to control the law and order if there is fire. It would lead to the death of civilians. So the Governments must not to repeal the whole law but there should be striking of the sections which are not constitutionally valid and which can lead to misuse of power.
By-
Paras Dargarh
(Symbiosis Law School, Pune)
[1]What is AFSPA and where it is in force?, The Hindu, 23rd April2018, available at https://www.thehindu.com/news/national/what-is-afspa-and-where-is-it-in-force/article23648102.ece
[2]Supra note at 1
[3]WRIT PETITION (CRL.) NO. 129 OF 2012
[4]Armed Forces Special Powers Act 1958 : Necessity or misuse of Power-, SaumyaSaxena, iPleaders, May 27, 2019, available athttps://blog.ipleaders.in/afspa-armed-forces-special-powers-act/
[5]Naga People’s Movement of Human Rights and Others v. Union Of India [AIR 1998 SC 431]
[6] Killing One Colonial Law at a time, Mustafa Haji, The Wire, 03rd October 2018, available athttps://thewire.in/law/repealing-afspa-colonial-law-northeast-jammu-kashmir
[7]AIR 1983 DELHI 513
[8]Mohammad AltafMohand and Anr. v. C.B.I and Ors. [561-A No. 66/2010561-A No. 66/2010]
[9](1982) 1 GLR 756.
[10] Supra note 4.
[11]Armed Forces Special Powers Act (AFSPA) – The Debate on Security v. Human Rights, Santhosh Kumar, IAS Express, 13th April, 2019, available athttps://www.iasexpress.net/armed-forces-special-powers-act-afspa-upsc/
[12] Supra note 4.