Armed Forces Special Powers Act: An Infamous Safeguard

This article was submitted by Simran Syal from University Institute Of Legal Studies for National Legal Writing Competition,2016.

The Armed Forces Special Powers Act,1958 is one of the most controversial and the most disliked legislations of all time. It has been described as ‘draconian’, ‘ill fated’ and what not. The most important foundations of a democracy i.e. justice, is into question.

THE ARMED FORCES SPECIAL POWERS ACT, 1958.

The act is currently in force in the seven eastern states (because of insurgency problems directly related with accession issues with the country) where it has been enforced for more than two decades and Jammu and Kashmir (insurgency issues). At one time, in the year 1983, the act was also in force in Punjab.  The act underwent some amendments in the year 1972 which are mentioned below.

THE ACT AND ITS PROVISIONS

The act comprises of 6 sections-:

  • Section 1: It states that the act extends to the states of Assam, Meghalaya, Tripura, Mizoram, Manipur, Nagaland, and Arunachal Pradesh.
  • Section 2: This section sets out the definitions of the act.

(a) “armed forces’ means the military forces and the air forces operating as land forces, and includes other armed forces of the Union so operating[1];

(b) ‘disturbed area’ means an area which is for the time being declared by notification under s.3 to be a disturbed area[2]’.

  • Section 3: This section defines the term ‘disturbed area’ and lays down that the central government and the governor can designate any area as disturbed area if it is of the opinion that the concerned area is under disturbed circumstances or is facing internal disturbances to the extent that intervention of armed forces in the aid of civil powers is necessary.

In the year 1972, an amendment was made which granted the central government the power to declare any area as disturbed area.

  • Section 4: This section details upon the powers granted to the armed officials with respect to the use of force which can be used by a commissioned officer, a non-commissioned officer, a warrant officer only a jawaan cannot kill.

All of the above can-

(a) Shoot or kill if the person is: acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. To justify the invocation of this provision, the officer need only be “of the opinion that it is necessary to do so for the maintenance of public order” and only give “such due warning as he may consider necessary”[3].

(b) Army can destroy property if it is an arms dump, a fortified position or shelter from where armed attacks are made or are suspected of being made, if the structure is used as a training camp, or as a hide-out by armed gangs or absconders.

(c) Army can arrest anyone who has committed, is suspected of having committed or may commit, a cognisable offense and use any amount of force “necessary to affect the arrest”.

(d) Army can enter any premise and search without warrant to arrest or recover any arms or ammunitions believed to be kept in along with the permission to use force.

  • Section 5: This section states that if the army has arrested someone then it must hand over the person to the nearest police station with the least possible delay.
  • Section 6: This section emphasises that no judicial proceedings can be instituted against a member of the army stationed in a disturbed area except with the prior permission of the central government.

GENESIS OF THE ACT

The act originally framed in 1948, was created to repeal four acts, viz. —the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance—invoked by the central government to deal with the internal security situation in the country in 1947[4].

The act is modelled on Armed Forces Special Powers Ordinance of 1942, constituted on 15th August 1942 to supress the Quit India Movement.

COMPARISON WITH THE ACT OF 1942

The latter act differs from the former on two points:

  • COMPETENT OFFICER

The 1942 ordinance authorised certain competent officers to use force in case of emergencies. This privilege was not available to every armed soldier. Unlike the current situation where only a jawaan cannot shoot.

  • TO SEARCH  ANY PREMISES WITHOUT WARRANT

The present act of 1958 includes the privilege to soldiers to enter or search any premises without warrant as well as to destroy or dismantle any structure which harbours rebels. This provision was not there in the ordinance.

AFSPA: CRITICAL LEGAL ANALYSIS

  • VIOLATION OF RIGHT TO LIFE (ARTICLE 21)

Article 21 guarantees that ‘no person will be deprived of his right to life and personal liberty except according to the procedure established by law’. The point to be noted herein is that section 4 (a) of the act provides for the indiscriminate amount of force to the army personnel to retaliate. Justice requires the prevalence of the principle of proportionality everywhere which has been violated here. This clause gives the armed forces grossly high powers in proportion to the safeguards with the people. This is clear from the fact that in Mizoram, on an average 2 people die every day.

  • PROTECTION AGAINST ARREST AND DETENTION (ARTICLE 22)

Article 22 of the Indian constitution talks about the aftermath of arrest. That a person, the moment arrested should be informed about his charges and should not be denied his right to a lawyer. Moreover, he should be presented in the court of a magistrate with the least possible delay (within 24 hours). The present act does not define the term the least possible delay. As a result, it violates this section of the constitution. In reality, the armed forces are known to keep people in detention for months before they hand him over to the magistrate.

In Civil Liberties Organisation (CLAHRO) v. PL Kukrety[5], people arrested in Oinam were held for five days before being handed over to magistrates. The court found it to be a severe unjustified delay.

  • THE TOTAL LACK OF REMEDIES

The members of the army are immune from any legal proceedings in the whole territory of India by virtue of section 45 of the CrPC within the purview of official duty. This act has taken away all the remaining remedy from the hands of the common people by stating that any legal proceeding against the armed forces would require permission of the central government. The only remedy available in the dire circumstances are the habeas corpus cases which forces the person’s custody into judicial hands. Again, this available only to those who can afford it or have a lawyer.

  • EMERGENCY PROVISIONS

 Imposing this act in any state is synonymous with the provisions of article 352(1) which deal with breakdown of machinery in the state. This point was taken up by Mr Mahanty in the Lok Sabha debates in 1958. But, Mr. P C Kant tried to justify otherwise. Saying that emergency situation means revocation of fundamental rights which is not a repercussion of the act. However, prima facie, the act suggests us otherwise.

CONCLUSION

In a nutshell, it can be very well concluded that the act does include certain provisions which are not only against the constitutional provisions but also violate human rights. If looked out there are various other measures which can be taken up to humanise and rationalise the act. For e.g. restoring some justified provisions of the act which the British formulated with respect to competency and prevention of detention, and another method which can be used is the practice of CrPC with special provisions for the disturbed areas.

The government does not realise that AFSPA deaths result in more militants than gratified citizens for the country.

The most heart wrenching point is that the government is trying to secure the safety of the citizens, no doubt about that. However, they forget to look into the grievances of the victims which are not actually the dead. The real victims are actually the family of the dead. The government should come up with policies for the families of the victims maybe then they’ll realise how much loss has occurred.

Ms. Irom Sharmila, the Iron Lady, ended her sixteen-year-old fast this month. Let us pray that her efforts don’t get wasted.

REFERENCE

[1]  Section2, Armed Forces Special Powers Act, 1958.

[2] ibid

[3] https://www.hrdc.net/sahrdc/resources/armed_forces.htm, accessed on 20th august 2016,20:31

[4] Report of the Committee to Review the Armed Forces (Special Powers) Act of 1958, Ministry of Home Affairs, Government of India, 2005, p 10.

[5] (1988) 2 GLR 137

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