ANALYSIS on Armed Forces Special Powers Act (AFSPA), 1958

Submitted by: Kartik Jigyasi Division: B
PRN: 14010224086
Class: 2014-19 of Symbiosis Law School, NOIDA
Symbiosis International University, PUNE

In
October,2014

Under the guidance of

Dr. Md. Salim

CERTIFICATE

The project entitled “Analysis on Armed Forces Special Power Act (AFSPA), 1958“ submitted to the Symbiosis Law School, NOIDA for Jurisprudence I as part of Internal assessment is based on my original work carried out under the guidance of Dr. Md. Salim from August 2014 to September 2014. The research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate
Date:

ACKNOWLEDGEMENT

Foremost, I would like to express mysincere gratitude to Dr. Md Salim for the continuous support for my research, for their patience, motivation, enthusiasm, and immense knowledge. Their guidance helped me in all the time of research and writing of this project. It’s an honor and privilege to have them as my advisors and mentors for my research.

INDEX * Introduction * Origin of the Act * The Act and its provisions * Criticism of the Act * Judicial Approach * Conclusion * Bibliography

INTRODUCION
The Armed Forces Special Powers Act (AFSPA), 1958 was preceded by the Armed Forces (Assam and Manipur) Special Powers Ordinance 1958. The Ordinance gave the armed forces certain special powers in the 'disturbed areas' of Manipur and Assam. It was later preceded by AFSPA on September 11, 1958. AFSPA empowers the governor of the state, or the central government to declare any part of the state as a 'disturbed area', if in its opinion there exists a dangerous situation in the said area which makes it necessary to deploy armed forces in the region. It empower non-commissioned officers of armed forces to arrest any person without a warrant, to shoot any structure that may be hiding without any verification, to conduct search and seizure without a warrant and to shoot anyone even to the causing of death.

ORIGIN OF THE ACT
The origin of the Armed Forces Special Powers Act (AFSPA), 1958 can be traced back to Armed Forces Special Powers Act of 1948. The latter was enacted to replace four ordinances- the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Bengal 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- enacted by the central government to deal with the internal security situation in the country in 1947.
The Armed Forces Special Powers Act of 1948 was based on Armed Forces Special Powers Ordinance of 1942, enacted by the British on August 15, 1942 to suppress the ‘Quit India Movement’. The ordinance granted special powers to certain officers of the armed forces to deal with an emergency. These ‘special powers’ included the use of force on any person who does not follow the orders of a sentry or causes damage to property or resists arrest. The Ordinance also provided complete immunity to these officers; there acts could not be challenged by any person in court except with the prior approval of the central government.
Initially, the Armed Forces Special Powers Act of 1948 was repealed in 1957, but was resurrected a year later in 1958 because of the deteriorating internal security situation in Assam. The Naga people, who inhabited in the Naga Hills of Assam and Manipur, had opposed the merger of their area with India on the grounds that they were different from Indians. They were never in favour of becoming a part of India. They boycotted the first general election of 1952, thereby showing their non-acceptance of the Indian Constitution and started committing violent acts against the Indian state.
In order to maintain harmony, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and escalated police action against any insurrection. When the situation worsened, the state government deployed the Assam Rifles in those areas. The Assam Disturbed Areas Act of 1955 was enacted to provide a legal status to the armed forces and the state police to deal with the situation, whenever it was necessary. This act was based on Armed Forces Special Powers Ordinance, 1942 as it gave special powers to armed forces.
But the Assam Rifles and the state police were unable to maintain order in Naga Hills because of the resistance from rebellion in those regions. The state authorities found itself incapable of handling the situation and asked the central government for their assistance. Responding to the state’s request, the central government sent the army to restore the normalcy in the region.
The President of India proclaimed the Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22, 1958 granting special powers to the armed forces. A bill to replace the ordinance and to provide legal status was introduced in the monsoon session of the parliament in 1958. The bill faced opposition from many people and after several of hours of discussion, the bill was passed by both the houses of parliament and came into effect from May 22, 1958.

THE ACT AND ITS PROVISIONS
The AFSPA, 1958 contains six sections which grant Armed Forces some exclusive rights for maintain law and order in the disturbed areas.
Section I: This section states the name of the Act and areas to which it extends that is, Assam and Manipur (According to AFSPA, 1958).
Section II: This section gives the definition of the Act, but leaves much un-defined. In the section, the armed forces are defined as "military forces and the air forces operating as land forces."
Section III: This section defines "disturbed area" by stating how an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State.
Section IV: This section talk about the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer, but a jawan (private) does not have these powers. The Section allows the armed forces personnel to use force (if required) for the following reasons:
Section IV(a): The army can shoot to kill, under the powers of, for the commission or suspicion of the commission of the following offenses that is-1) 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, 2) carrying weapons, or 3) carrying anything which is capable of being used as a fire-arm or ammunition.
Section IV(b): The 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.
Section IV(c): The army can arrest anyone without a warrant under who has committed, is suspected of having committed or of being about to commit, a cognisable offense and use any amount of force "necessary to effect the arrest".
Section IV(d): The army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search.
Section V: This section states that after the military has arrested someone under the AFSPA, they must hand that person over to the nearest police station with the "least possible delay".
Section VI: The section states that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government.

CRITICISM OF THE ACT
The Act has been widely criticised for being one of the most draconian laws ever passed by the Indian parliament.
On November 19, 2004, the Central government appointed a five member committee headed by Justice B P Jeevan Reddy to review the provisions of the act in the north eastern states.
The committee submitted its report in 2005, which included the following recommendations: (a) AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967; (b) The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and (c) grievance cells should be set up in each district where the armed forces are deployed.
The 5th report of the Second Administrative Reforms Commission on public order has also recommended the repeal of the AFSPA. These recommendations have not been implemented as of yet.
The Act is aimed to maintain law and order in ‘disturbed areas’. But it has been criticised as some of the provisions of the Act is in violation of the fundamental rights guaranteed to the citizens of India. * Article 14 of the Constitution guarantees “equality before law”. The Article states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. As under AFSPA, 1958, this right appears to be violated. This Act is in force only in disturbed areas, the people residing there are being denied the right to life & personal liberty and prohibited from judicial help. Hence, they are also denied equality before the law and therefore this fundamental right appears to be infringed. * Article 21 of the constitution guarantees the Right to Life to every person residing in the soil of India. It reads, “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” According to judicial interpretations, the procedure established must be a “fair, just and reasonable” as stated in the benchmark case of Maneka Gandhi v. Union of India, 1978. But if we look at section IV(a) of The AFSPA 1958, we find that it is in contradiction to the Right to Life as the section grants the armed forces personnel, the power to shoot (to the extent to kill), allowing excessive force to be used. * Article 22 of the Constitution defines laws of preventive detention. Under Article 22(2), it states that “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest”. In contrast, the AFSPA, 1958 does not mention any specific time limit, in which a person arrested has to be produced before a magistrate. On the other hand it mentions “least possible delay” which indirectly allows the armed forces to hold people in detention for unspecified time. Thus, it is in contravention with Article 22 of the Constitution of India. The validity of AFSPA, 1958 has been in doubt, considering the present scenario. The Act is in contravention with The Criminal Procedure Code (CrPC), 1972. The Act violates certain sections of CrPC which deals with filing a suit against a member of armed forces. The areas where AFSPA is effective, people have to take special permission from the Central Government in order to file a suit against a member of armed forces. Internationally, many human right laws have invalidated the AFSPA. The Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (the ICCPR), the UN Code of Conduct for Law Enforcement Officials and many others have put a hold on AFSPA stating it as moot. JUDICIAL APPROACH * The only option for anyone affected by the atrocities committed by the armed forces in ‘disturbed areas’ is the judiciary and hence, the role of judiciary in this matter is very significant. Since, no fundamental right has been able to safeguard the interests of the victims, the writ of Habeas Corpus is the only remedy left with them. Indrajit Barua v. State of Assam and Luithukla v. Rishang Keishing are exemplary cases of Habeas Corpus and depict two contrasting decisions of The Delhi High Court and The Guwahati High Court respectively. While in the former case, the constitutional validity of AFSPA was upheld by the Court, in the latter case the Court ruled in favour of the aggrieved. In another case of Habeas Corpus, Bacha Bora v. State of Assam, the Court dismissed the petition because a later arrest by the civil police was found to be legal. * Although the writ of habeas corpus is available for the victims, it is only partial remedy and does not lead to the repealing of the Act in specific. * There were questions about the constitutionality of AFSPA, given that law and order is a state subject. The Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement (Naga People's Movement of Human Rights v. Union of India). * In this judgement, the Supreme Court arrived at certain conclusions including (a) a suo-motto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration; (b) AFSPA does not confer arbitrary powers to declare an area as a 'disturbed area'; (c) the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired; (d) while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action, and (e) the authorised officer should strictly follow the 'Dos and Don'ts' issued by the army.

CONCLUSION
In Manipur, Irom Sharmila has been on an indefinite fast for 14 years, seeking the repeal of the act in Manipur. Till date, the government has not agreed to this demand. The AFSPA is certainly one of the most controversial acts ever. A fresh and proper overview needs to be taken over it, given the present scenario and final decision should be taken to check the validity and application of it.

BIBLIOGRAPHY 1. Anon, ”An Analysis on AFSPA , 1958”, www.pucl.org/Topics/Law/2005/afspa.htm 2. Anon, “Report of the Committee to Review the Armed Forces (Special Powers) Act of 1958, Ministry of Home Affairs, Government of India, 2005, p 10. 3. Anon, “The Armed Forces Special Powers Act: A Renewed Debate in India on Human Rights and National Security”, September, 2013 http://www.amnesty.org/en/library/asset/ASA20/042/2013/en/d47290df-5a65-42ec-ac49-de305f299229/asa200422013en.html 4. Goyal, Prateeti and Kumar, Aayush, “AFSPA: A Mockery of Human Rights”, June, 2011, http://www.mightylaws.in/689/afspa-mockery-human-rights 5. Indrajit Barua v. The State of Assam and Another (AIR 1983 Delhi 513) http://login.westlawindia.com/maf/wlin/app/document?src=toce&docguid=I997CE2924A2811DFA3A9EEC3E9E254BC&crumb-action=append&context=12 6. Maneka Gandhi v. Union of India (AIR 1978 SC 621), http://login.westlawindia.com/maf/wlin/app/document?src=toce&docguid=I368F2E81006E11DFBEF1C9F02835E615&crumb-action=append&context=25

--------------------------------------------
[ 1 ]. Maneka Gandhi v.Union of India, AIR 1978 SC 621
[ 2 ]. Indrajit Barua v. The State of Assam and Anr. (AIR 1983 Delhi 513)
[ 3 ]. Luithukla v. Rishang Keishing, (1988) 2 GLR 159
[ 4 ]. Bacha Bora v. State of Assam, (1991) 2 GLR 119