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An analysis on the status of Armed Forces Special Powers Act in North-East India

Introduction:

The Armed Forces Special Powers Act, 1958 (28 of 1958) was basically brought forward as an immediate measure to control the insurgency problem in North-East India and came into force on 11 September, 1958.[i] The act was modelled on the Armed Forces (Special Powers) Ordinance promulgated by the British Government in 1942 to control the Quit India Movement. The present Act empowered the Governor of any State or Union Territory to declare areas as disturbed areas and use the armed forces to maintain law and order situation. Originally, the term ‘disturbed areas’ referred to Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. However, in July, 1990 the Act was extended to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990[ii] to counter the situation in the State. This paper focuses on the issues related to the powers provided under the Act, misuse of the powers, alleged human right violations and protests in North-east India.

Background:

The North-eastern region of India has one of the longest histories of armed secessionist movements in the world. The original basis of the armed secessionist movements lay on the fact that these states had enjoyed an independent existence since long under the local kings and rulers prior to their integration with India in the period after independence. However, as of late the basis for the secessionist movements have gradually shifted to a situation where each tribal group demand a separate state or area to maintain its own distinct cultural or social identity.

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The oldest of the secessionist movement is the Naga Movement which basically traces its history to the establishment of Naga Club in Kohima in 1918.[iii] After independence the movements however took a violent turn with the establishment of Naga Nationalist Council (NNC). The conflict continues till date and presently the Government is in peace talks with one of the main insurgent groups of the State- “The Nationalist Socialist Council of Nagaland (Issac-Muivah) Faction”.[iv]

Inspired by these situations and also due to the low levels of development prevailing in the region, a number of other groups mushroomed in the different states of North-East India each with an unique demand but with the basic aim to secure a territory so as to protect the interest of the particular tribe or ethnic group. The major among these insurgent organisations are United Liberation Front of Assam (ULFA) in Assam, People’s Revolutionary Party of Kangleipak (PREPAK) of Manipur, Nationalist Socialist Council of Nagaland (Issac Muivah and Khaplang Factions) in Nagaland and All Tripura Tiger Force (ATTF) in Tripura among others.

The Armed Forces Special Powers Act was basically introduced at first to bring the situation in Nagaland under control with a general feeling among the people that the Act would be repealed after one year when the insurgent activities have been brought under control. However, such a thing did not occur and the Act is still under force in many regions of North-east India.

Reasons for Opposition:

Although the Government and many military experts are of the opinion that the Armed Forces Special Powers Act is necessary to maintain law and order in the region, but the main causes of the discontent should be looked into. A brief introduction to the main causes of discontent as of now is as follows-

a)      Human Rights Violations

The use of the powers provided under the Armed Forces Special Powers Act for human rights violations is a prime reason for the opposition to the Act. A detailed analysis into the legal perspectives as well as the present situation would be undertaken in the later part of the paper.

b)     Existence of the Act in peaceful areas

The Act as of now is in force in many relatively peaceful areas of the region. Although, there are sporadic incidents of violence in these regions but those can be very well counteracted with the existing provisions of the Indian Laws. The widespread use of the Act and putting the whole State under its blanket only increases the probability of misuse of the Act while mainly defeating the purpose of the Act to use it in ‘disturbed areas’ only.

c)      Determination with Central Government

The amendments to the act bought in 1972 also allowed the Central Government to declare any area as a disturbed area.[v] This took away the powers from the Governor and the State Government who had better knowledge of the prevailing situation or circumstances.

d)     Hindrance to Peace Talks

With the Central Government in the process of peace talks with many of the insurgent organisations of the region, the need for the Act further diminishes. Contrary, to the main purpose of the Act to protect the law and order, it might act as an inflammatory fuel, as continuing operations under the Act may force the insurgent organisations to take an aggressive stand or move away from the negotiations. Such –a step would be a huge loss in the aim of long term peace and harmony in the region.

Legal provisions under the Act:

The provisions of the Armed Forces Special Powers Act have invited wide spread oppositions and also leave opportunities for misuse. The main disputed sections of the Act are as follows-

a)      Section 2 (b) and Section 3 define the term ‘disturbed area’ but falls short of providing an objective definition.[vi] The Act leaves the whole process of determination of the area as a ‘disturbed area’ on the Governor, Administrator or the Central Government without laying down any particular criterion to such a declaration. In the case of Indrajit Barua v. State of Assam[vii], the Honourable Delhi High Court declared that the lack of precision in the definition of a disturbed area was not an issue because the Government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, the declaration that an area is disturbed is not subject to judicial review. So in the actual scenario, it is only the Government’s understanding which classifies an area as disturbed, leaving no mechanism for the people to challenge this opinion.

b)      Section 4 determines the powers available to the armed forces.[viii] Under this provision any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, upon his own determination fire against a person even causing his death, destroy any structure, arrest any person without any arrest warrant and search any property without any arrest warrant. The section came under review in the case of Luithukia v. Rishang Keishing[ix] wherein guidelines were laid down that operations conducted by the armed forces should be in cooperation with the district administration.

c)      Section 5 states that any arrested person must be handed over to the police with the least possible delay.[x]But there is no mention as to what is the reasonable time period leaving ample scope for misuse. This provision also came into further review in the case of Horendi Gogoi v. Union of India [xi].

d)     Section 6 states that there would be no legal proceeding against any person working under the act without permission of the Central Government. Such a provision virtually closes the window for redressal in case of violation of any rights.

The existence of these provisions under the Act has caused immense heartburn among the local people who consider them an extension of the colonial legacy. They have also promoted the local citizens to move the Supreme Court of India, calling for annulment of the Act as discussed below.

Supreme Court of India on the AFSPA:

The constitutional validity of the AFSPA was challenged in the Supreme Court of India through the case of Naga People’s Movement of Human Rights v. Union of India (UOI)[xii]. A Constitutional Bench of the Hon’ble Supreme Court of India decided that the AFSPA does not fall under the category of a colourable legislation. However, the Supreme Court of India in the same case laid down guidelines for the armed forces who are acting in areas under the AFSPA. These provisions were made to ensure that the Act could not be misused. The Supreme Court further decided that the Act of 1955 in pith and substance is a law in respect of maintenance of public order enacted in exercise of legislative power and not open to challenge. The court also further decided that there should be periodic review of the declaration of an area as disturbed area before the expiry of six months.

AFSPA and
The International Law:

Many experts contend the AFSPA violates provisions of several important documents of International Law including the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights (hereinafter referred as “ICCPR”) The Convention against Torture and important principles of customary law laid down by 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.

India signed the ICCPR in 1978, taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens. The rights enunciated by the ICCPR are those which must be guaranteed during times of peace by the member states. In times of public emergency, the ICCPR foresees that some rights may have to be suspended.[xiii] However, the ICCPR remains operative even under such circumstances since certain rights are non- derogable. The AFSPA violates both derogable and non-derogable rights.[xiv]

Article 4 of the Covenant governs the suspension of some of the  rights in it. Derogation of the ICCPR has three conditions; firstly, it is only “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” that states may derogate from their obligations under the ICCPR. Also, such derogation must be “strictly required by the exigencies of the situation” and cannot be inconsistent with other international law obligations nor “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”[xv] The AFSPA has been enacted with provisions which do not require the declaration of any emergency but with mere declaration of an area as a ‘disturbed area’.[xvi] Further, through the promulgation of the AFSPA, a situation of artificial emergency has been created throughout the region which has been running since its implementation in 1958.

The powers of search and arrest granted under the AFSPA are also widely condemned as they give armed forces virtually unlimited powers of detention and are again a violation of Article 9 of the ICCPR.[xvii] This is evident from the fact that the Act  does not provide for any fixed time period for trial of the people under detention of the army. The Covenant provides under Article 9 (3) that there has to be a reasonable time for production before a judicial authority and for release. However, the Act makes no such provision for protection of these rights.

Further, the AFSPA violates provisions of Article 6 guaranteeing the right to life, Article 7 prohibiting torture and Article 10 which calls for a dignified treatment for everyone.[xviii] These provisions of the ICCPR are not derogable under any circumstances. However, the AFSPA through its provisions of arrest and unspecified time period of handing over to police violates these provisions. The right to life is also seen to be violated keeping in view the fact that the Act grants permission to the soldier to undertake acts of violence even when he is not under a direct threat to life.

Questions have also been raised on the validity of the AFSPA keeping in view of the violation of Article 2 of the Covenant.[xix] The Covenant provides that each State should guarantee a judicial process for the enforcement of the rights of the people. However, the provisions of AFSPA granting detention in arbitrary situations are in clear violations of the Covenant. Also, the ICCPR clearly provides that if any State is acting in violation of the provisions of the ICCPR, it has to inform the other countries of such a situation. However, India has not taken any such steps.

Misuse and attack on Human Rights Violations:

There have been numerous reports of Human Rights violations as a result of the misuse of the AFSPA which provides virtually unlimited authority. There have been numerous cases of disappearance, rape and torture which are alleged to have gone untried due to the wide immunity provided under the Act.

However, the most important case which managed to evoke attention from people all over the country was the case of custodial rape and death of Thangjam Manorama, a 32  year old lady from Manipur.[xx] The alleged atrocities committed on her by the soldiers of the Assam Rifles led to people of Manipur and also other States of North East India, to come together on the streets to protest against the Act and fight for justice. Irom Sharmila, also called the Iron Lady of Manipur, has been conducting a fast since the last 12 years demanding a repeal of the Armed Forces Special Powers Act.[xxi] She began her fast on 2 November, 2000 and has been confined under strict controls by the Government with repeated periods of arrest and release followed by arrest whenever her health condition deteriorates.

The protests for the withdrawal of the Act led to partial success last year when it was removed from certain areas of Jammu and Kashmir. However, inspite of repeated commitments from the Government, no such results have been seen in North East India.

Reactions from International Organisations:

Numerous International organisations have revealed their strong discontent at the existence of a draconian regulation like the Armed Forces Special Powers Act. In 1991, the United Nations Human Rights Committee (UNHRC) questioned India on the validity of the AFSPA.[xxii] The second UN protest against AFSPA came in 2009 when UN High Commissioner for Human Rights, Mr. Navanethem Pillay, in 2009 asked India to repeal AFSPA, citing that the Act breached “contemporary international human rights standards”.[xxiii] Further, UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Committee on the Elimination of Discrimination against Women and Committee on the Elimination of Racial Discrimination have also called for the repeal of the Act.

The Amnesty International has strongly opposed the existence of such an Act and has recommended the following provisions[xxiv]:

®    Repeal the AFSPAunconditionally;

®    Ensure that it does not introduce provisions taken from the AFSPA into the recently Amended Unlawful Activities (Prevention) Act, (UAPA) 1967;

®    Repeal or amend the UAPA to bring it into line with International Human Rights law;

®    Protect the civilian population from violent crimes, including acts committed by armed groups, and prosecute those responsible for such attacks within the framework of criminal law and in conformity with International Human Rights law and standards;

®    Ensure that law enforcement personnel, including armed forces deployed for law enforcement purposes, respect the standards set out in the UN Code of Conduct for Law Enforcement Officials, and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;

®    Amend Section 19 of the Protection of Human Rights Act which prohibits the NHRC and State Human Rights Commissions from independently investigating allegations of Human rights violations by members of the armed or paramilitary forces.

The Human Rights Watch, another International organisation working for the maintenance of Human Rights had released a document entitled “Getting Away With Murder :50 Years of the Armed Forces (Special Powers) Act” in August, 2008[xxv] providing an account of the various incidents of Human Rights Violations and has requested the Indian Government to repeal the Act.

Government Position and Initiatives:

The Government and the Army have repeatedly released statements supporting the existence of the AFSPAas they believe that the Army would not be able to conduct its operations without the same effectiveness in the absence of the Act. The Government acting due to pressure from protests in Manipur established a Committee to Review the Armed Forces (Special Powers) Act, 1958 setup in 2004 led by Justice Jeevan Reddy, a former Judge of the Supreme Court. The committee recommended the repeal of the Act.[xxvi] Further, the Second Administrative Reforms Commission, headed by the current Union Law Minister, Mr. Veerappa Moily, and the Working Group on Confidence-Building Measures in Jammu and Kashmir led by the present Vice President of India, Honourable Hamid Ansari, have all recommended the repealing of AFSPA.

Although no positive steps have been seen till date but the recent statement by the Home Minister stating that the Government was looking forward to amending or replacing the Act[xxvii] are encouraging signs.

Recent Developments on the AFSPA:

The anger among many people in North east India has risen in recent times primarily because of the fact that the Act was removed from certain areas of Jammu and Kashmir keeping in view the demands of the local people and  no such demands have been accepted in relation to North-east India. There have been renewed protests in many areas in the Northeast this year, particularly in the State of Manipur. The activist Irom Sharmila in her recent statements has reiterated her support to the movement and support has started flowing in from across the globe.[xxviii]

The Supreme Court of India in recent days has taken a sympathetic view of the opinion of the people of the region and acting on a PIL, it sent notices to the Government of India and Government of Manipur on the issue in October, 2012.[xxix] In the latest hearing of the case on 10 April, 2013 the court sent a strong hint asking the Government to look at modifications to the provisions and has strictly opposed the blanket provisions given under the Act.[xxx] Further, in another recent case, the Supreme Court opined that protection under the AFSPA cannot be claimed for offences such as Rape and Murder by the Indian army.

Conclusion:

The AFSPA provides wide ranging powers to the armed forces without any sufficient provision for seeking justice in a case of violation. The immediate need of the hour is a review of the ground situation to study the need of such an Act. Conditions in North East India have invariably improved over the last few years and a ground level review followed by deliberations with the local people should be initiated.

Keeping in view the needs of national security, if it is still felt that the Armed forces deserve special immunity, then the Government should make adequate provisions to implement a more people friendly Act or make amendments in the present Act to make it compliant to the recommendations by the various commissions. But in taking all these steps, the respect for the opinion of the people should be a top priority to prevent recurrent protests and allegations of abuse of power by the armed forces. The armed forces are for the protection of the people and friendly relations and support of the public can be the greatest aid in the fight against anti-social elements.

About the Author

Mr. Angshuman Hazarika
IIIrd Year Law Student,
Rajiv Gandhi National University of Law, Patiala
angshuman7@sify.com

 


References:

[i]  https://mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf (Accessed on 19 April, 2013 at 8:30 am)

[ii] https://www.indiandefencereview.com/news/the-armed-forces-special-powers-act-a-perspective/ (Accessed on 17 April, 2013 at 3:15 pm).

[iii] Col. Ved Prakash, Encyclopedia of North East India, Vol. 1(Atlantic Publishers and Distributors (P) Ltd. New Delhi 2007)  p. 1927

[iv] Nivedita Menon and Aditya Nigam, Power and Constestation- India Since 1989, (Zed Books Ltd. London 2007)  p. 141

[v] Anil Kamboj, “Manipur and Armed Forces (Special Power) Act, 1958, Strategic Analysis, Vol. 28, Issue 4, October, 2004, Unknown.

[vi] Section 2 and 3 of the Armed Forces (Special Powers) Act, 1958.

[vii] Indrajit Barua v. State of Assam, 1983 AIR(Del) 513

[viii] Section 4 of the Armed Forces (Special Powers) Act, 1958.

[ix] Luithukia v. Rishang Keishing, (1988) 2 Gau LR 159

[x] Section 5 of the Armed Forces (Special Powers) Act, 1958.

[xi] Horendi Gogoi v. Union of India, (1991) Gau CR 3081

[xii] Naga People’s Movement of Human Rights v. Union of India (UOI), AIR 1998 SC 465

[xiii] https://ssrn.com/abstract=2045357 (Accessed on  20 April, 2013 at 10:40 pm)

[xiv] https://ssrn.com/abstract=2045357 (Accessed on  20 April, 2013 at 10:40 pm)

[xv] https://www.defendinternational.com/index.php?option=com_content&task=view&id=30&Itemid=127, (Accessed on 16 April, 2013 at 11:15 pm)

[xvi] https://openspace.org.in/book/export/html/761, (Accessed on  12 March, 2013 at 2:15 pm)

[xvii] India Briefing: The Armed Forces Special Powers Act (AFSPA) Review Committee takes one step

forward and two backwards, (Amnesty International, November, 2006, AI Index: ASA 20/031/2006)  p. 17

[xviii]  https://sanhati.com/excerpted/4420/.(Accessed on 17 April, 2013 at 5:20 pm)

[xix] https://www.e-pao.net/epSubPageExtractor.asp?src=education.AFSPA-A_Law_Review.AFSPA-A_Law_Review_5.  (Accessed on 18 March, 2013 at 9:30 pm)

[xx] Thokchom Binarani Devi, Women’s Movement in Manipur, (Concept Publishing Company  New Delhi 2011) p. 31

[xxi] https://indiatoday.intoday.in/story/irom-sharmila-the-iron-lady-of-manipur-continues-her-epic-battle/1/227788.html, (Accessed on 20 April, 2013 at 11:25 am)

[xxii] https://www.mightylaws.in/689/afspa-mockery-human-rights (Accessed on 14 April, 2013 at 3:20 pm)

[xxiii] https://articles.timesofindia.indiatimes.com/2009-03-23/india/28054238_1_afspa-repeal-kashmir (Accessed on 17 April, 2013 at 4:10 pm)

[xxiv] India Briefing: The Armed Forces Special Powers Act (AFSPA) Review Committee takes one step

forward and two backwards, (Amnesty International, November, 2006, AI Index: ASA 20/031/2006)  p. 8

[xxv] Human Rights Watch, India: Getting Away With Murder, 50 Years of the Armed Forces Special Powers Act, August 2008,  https://www.refworld.org/docid/48a93a402.html (Accessed on 20 April 2013 at 1:45 pm)

[xxvi] Govt. of India, Ministry of Home Affairs, Report Of The Committee To Review The Armed Forces (Special Powers) Act, 1958,(MHA New Delhi 2005) p. 67-81

[xxvii] https://www.ndtv.com/article/india/govt-considering-replacing-armed-forces-special-powers-act-19049 (Accessed on 04 March, 2011 at 5:45 pm).

[xxviii] https://www.thehindu.com/news/national/i-love-life-if-afspa-is-repealed-ill-take-food-again-irom-sharmila/article4474897.ece (Accessed on 11 April, 2013 at 7:10 pm)

[xxix] https://articles.timesofindia.indiatimes.com/2012-10-20/india/34605747_1_afspa-ibobi-singh-government-manipur (Accessed on 17 April, 2013 at 8:10 pm)

[xxx] https://economictimes.indiatimes.com/opinion/editorial/end-afspa-supreme-courts-sharp-hint/articleshow/ 19486514.cms (Accessed on 12 April 2013 at 2:15 pm)

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July 19, 2016

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