AFSPA – Law or Flaw? : Nancy Garg

INTRODUCTION

AFSPA refers to Armed Forces special powers Act which confers some special powers to the Indian Armed Forces. It provides legal immunity to army officers for their actions being done at the disturbed areas. It was the Britishers who had started the armed forces special powers ordinance in 1942 mainly to suppress the Quit India movement. The government of India made the four ordinances in 1947 mainly to deal with internal security issues arising due to partition in Bengal, Assam, East Bengal and United Provinces. In 1958, they were re-enacted in Assam and Manipur as Armed Forces (Assam and Manipur) Special Power Act, 1958 because of growing Naga insurgencies over this place. Presently, AFSPA is enforced in 6 states of North East India i.e. Arunachal Pradesh, Nagaland, Manipur, Assam, Mizoram and Meghalaya along with Jammu and Kashmir.

PROVISIONS RELATING POWERS CONFERRED

The key provisions of this act are that the governor of the state and the central government are empowered to declare any part or any state as disturbed area if it is in their opinion that it is necessary to prevent terrorist activity or any such activity that may disturb the sovereignty of India. This act confers different types of power to army state and central power force like shoot to kill, search any house, and destroy any property that is likely to be used for harmful activities in disturbed areas. Moreover, they can arrest without warrant, i.e. a person who has committed or about to commit an offence even on reasonable suspicion. However, there are certain Safeguards to the people. According to Sec 5 of AFSPA, it mandates that arrested civilians should be handed over to the nearest police station with the least possible delay. Secondly, the army headquarters have also laid that all the suspects who have been arrested should be handed over to the civilian authorities within 24 hours and regarding the firing on civilians, the fire may be opened in towns and villages only in self defense.

CRITICISM

Most of the provisions of AFSPA are in contravention of the fundamental rights laid by the Constitution of India. Sec 4(A) i.e. shoot to kill violates Article 21 which gives the right to life. Sec 4(B) which talks about search without warrants violates right to liberty and article 22. Arrest without warrants again violates Article 22. It violates the human rights and abuses by the army are rarely punished. Another criticism is Section 6 of the Act, which prohibits prosecution or other legal proceedings without the sanction of the central government. It is argued that this provision gives blanket immunity to soldiers. Armed with this immunity, the Army allegedly indulges in human rights violations.

HOW HAS THIS ACT BEEN RECEIVED BY THE PEOPLE?

It has been a controversial one, with human rights groups opposing it as being aggressive. AFSPA has been called a ‘draconian’ law by human rights activists. It gained international attention after Manipur activist Iron Sharmila decided to fast to protest against this act, which lasted for 16 years. On November 10, 2000, 10 civilians standing at a bus stop in Sharmila’s home in state of Manipur were allegedly shot and killed by Indian troops. The incident, renamed the “Malom massacre” by infuriated civilians, prompted Sharmila to begin a hunger strike which has been unsuccessful. Since Army is opposed to the repeal of AFSPA, therefore, many argued that repealing of this act will lead to demoralizing the armed forces and can see militants motivating the locals to file law suits against the army.

SUPREME COURT DECISIONS ON AFSPA

There are three observations of the Supreme Court. The first relates to ‘excessive use of force’. The court observed, “In the enquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy.” The court concluded that “use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union is not permissible.” How excessive force is to be judged in the safe environs of a courtroom, years after the incident, is a huge question.

The court made it clear that “even if the armed forces decide to take action and inquire into the allegations at their own level, it would not preclude any other inquiry or investigation into the allegations made.”

The court also ruled that “in the event of an offence having been committed by any person…through the use of excessive force or retaliatory force, resulting in the death of any person, the proceedings in respect thereof can be instituted in a criminal court subject to the appropriate procedure being followed.”
If investigations into allegations are to be done by the CBI, the use of excessive force becomes a major factor for prosecution, and soldiers can be dragged to criminal courts, the AFSPA has little relevance.

Two years ago, the Supreme Court discouraged the use of excessive force in a landmark judgment. It upheld the decision that directed the government to investigate every such case. Alongside that, a new mechanism will be added to address grievances of citizens who complain of unfair treatment. They will be examined by the forces before an advisory body looks into the report.

WHAT CAN BE DONE?

Jeevan Reddy Committee has recommended that AFSPA should be repealed and some of its provisions should be incorporated in other laws such as CRPC which can further protect the armed forces. Committees can be created at district levels with representatives of Army administrators and public which will report access and track complaints in that particular area. All the investigation should be done in the time bound manner. Human rights violation should be tracked. Amendments should be made in some laws in such a way that it will benefit civilians and the forces. The onus of proving the alleged person as terrorists should lie with the forces itself.

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