By Basit Farooq and Shariqa Naseer
“In Maneka Gandhi v. Union of India (AIR 1978 SC 597) it was held that the procedure established by law has to be fair, just and reasonable, not arbitrary and fanciful; otherwise it’s not a procedure at all and also not satisfying Article 21.”
The state is an organization so wide and so important that it has every possible power to protect its integrity, unity, and sovereignty. Disturbance and causes of conflict do arise in states or what we refer to as “Areas of Conflict” and every state has to step forward for the earliest possible resolution to such problems. The states across the globe have used at times important methods in the form of laws to protect its organs and elements from getting disrupted and destroyed; it has also used inhuman tactics and means which have left a scar on their history. When a state is in danger from internal or external factors, it has powers to try every possible way to protect its sovereignty. It can pass laws which it may deem fit and feasible to control the situation and attain its objective of stability. The same ground is used by the state for the justification of its activities during the time of disturbance. However, no situation can justify passing of such legislations which take away basic human rights, such right to life from its citizens. One such example is The Armed Forces Special Powers Act (AFSPA), a draconian and oppressive law in India which has long history in the colonial era. In 1942, the British promulgated The Armed Forces Special Powers Ordinance to suppress the Quit India Movement. Though the nation has achieved independence and is no longer under the chains of slavery, the draconian law still exist in the world’s largest democracy. AFSPA is in force in six states including some north eastern states and the state of Jammu and Kashmir, though it was recently revoked in the state of Meghalaya. The first legislation of AFSPA in independent India was passed in 1958 when the country faced insurgency in the Naga districts of Assam and the act extended to the state of Assam and Manipur. The formation of The United National Liberation Front in 1964 in Tripura which demanded independence from India and the formation of other armed groups led to the expansion of the AFSPA to other states of north eastern India, particularly its full imposition in Assam and Tripura in 1972. The imposition of the law was regarded as a good step to prevent the disintegration of the country. However, the powers, procedures, and application of the law have been widely denounced as the act is not only in violation of constitutional law (Article14, 19, 21, and 22) but also as a violation of the International law (ICCPR, UDHR, ICERD).
The AFSPA is a legislation which empowers the central government and the governor of the respective state and administrator of the Union Territories to declare any area as “disturbed” by passing notification in the official Gazette, thereby granting immense powers to the armed forces to maintain law and order situation in the respective disturbed areas as is provided in section 3 of the AFSPA. Till 1972, the power to declare any area as disturbed was only exercised by the state government. In 1972, the power was extended to the central government and this became a point of conflict as the central government was suspected to infringe on the rights of the state government. This is what happened when central government declared Tripura as a disturbed area even after being opposed by the state government.
The modern world polity and law are progressing towards zero human rights abuses and full protection and promotion of human rights. India as a developing nation both in terms of prosperity and legal system has to fulfill its greatest obligations towards its citizens and society at large by respecting individual human rights. The AFSPA has been a matter of controversy and debates since the very beginning, because the law is full of vagueness and ambiguity. The AFSPA has 8 sections in respect to Jammu and Kashmir, while 7 sections related to North Eastern states. However, the level of unreasonableness and impunity for crimes is the same in both places.
AFSPA as a violation of the Indian Constitutional Law
AFSPA is full of ambiguity and vagueness. Moreover, it is against the supreme law of the land – the Constitution. Any law which is so vague and full of unreasonableness has no place in the books of statutes and ought to be declared unconstitutional. Every such law, even if it remains in force and operation, does necessarily invite criticism and challenges and the same has been true in the case of AFSPA.
- Section 2 sets forth the definition of the Act, but leaves much of the concept vague and un-defined. Under part (a) in the 1972 version, the armed forces were defined as “the military and air force of the Union so operating.” In the 1958 version of the Act, the definition was of the “military forces and the air forces operating as land forces.” Section 2(b) defines a “disturbed area” as any area declared as such under section 3. Section 2(c) states that all other words not defined in the AFSPA have the meanings assigned to them in the Army Act of 1950.
- Section 3 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, but does not describe the circumstances under which the authority would be justified in making such a declaration. The provision declares the authority of the centre, but does not clearly define a disturbed area nor does it state the conditions, circumstances or prudent grounds for the declaration of the part as disturbed.
- The vagueness of the definition as provided in section 2 of the Act was challenged in the case law of Indrajit Barua v. State of Assam (AIR 1983 Del 513). The judgment of the court was quite interestingly ironic to the accepted opinion of the masses. The Honorable Court decided that the lack of precision to the definition of a disturbed area in the Act was not an issue because the government and people of India understand its meaning. The court went further by declaring that such a declaration is not subject to judicial review because it depends on the satisfaction of the government official. So in practice the government determines, as per its own view and pyramid, which area is to be declared disturbed, which in reality becomes a matter of imposing power, leading to its malafide use. Moreover, there is no provision in the Act regarding the duration of the “disturbed” status. The controversy was raised and discussed in the case law of the Naga People’s Movement of Human Rights v. Union of India (AIR 1998 SC 431). The Honorable Supreme Court held that the section 3 cannot be construed as conferring power without any time limitation. There should be periodic review after the expiry of every 6 months of declaration. However, AFSPA still continues in Assam even after 60 years and in Jammu and Kashmir after 20 years.
- Section 4 of the Act provides 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 these powers cannot be exercised by a jawan (private person). The Section allows the armed forces personnel to use force for a variety of reasons. Under Section (4) (a) of the Act, a military personnel or even a non-commissioned officer of the force can fire, shoot to the extent of killing a person who has acted against law, to maintain public order. As per this provision, assembly of five or more people is prohibited, along with prohibiting the carrying of weapons and other explosives. The power given under this provision is so wide and vague that if the military personnel suspect of any wrongdoing, they can shoot a person to death. The provision is clearly in violation of the right to life and personal liberty granted under Article 21 of the constitution that states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This provision of the act denies the “due process of law” which can be used as a defense against the deprivation of the right to life. The phrase “procedure established by the law” is synonymous to ‘a due process’, since it was held by the Honorable Supreme Court in the case Maneka Gandhi v. Union of India (AIR 1978 SC 597) that the procedure established by law has to be fair, just and reasonable, not arbitrary and fanciful; otherwise, it’s not a procedure at all and also not satisfying Article 21. In the light of the same judgment, it is apparent that AFSPA is in total violation of Article 21 for it doesn’t follow any “procedure established by law” as is required by the article. The provision also provides for prohibition of any assembly of more than five persons, but it is not defined as to which assembly is prohibited. In case of a peaceful assembly of more than five persons on road by relatives or members of family, should those assemblies be prohibited by the use of force? The right for peaceful assembly is guaranteed as a fundamental right in Article 19(1)(b) of the Indian Constitution. Under AFSPA, how far are the rights protected than violated?
- In the recent judgment of the Supreme Court Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors (2017 10 SCC 1), the right to privacy as declared by the Supreme Court is a fundamental right. The fundamental rights with respect to prevention of arrest as guaranteed under Article 22 of Constitution of India have no respect in the Spirit of the provisions of AFSPA. Under Section 4(c) the army can arrest anyone without a warrant, who has committed, is suspected of having committed or about to commit, a cognizable offense and can use any amount of force “necessary to affect the arrest”. While, the following section 4(d) states that 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. The guidelines provided by the honorable Supreme Court, in the case Joginder Kumar v. State of U.P (AIR 1994 SC1349) and in D.K. Basu v. State of West Bengal (AIR 1997 SC 610) held that an arrest should not be made on mere suspicion of a person’s complicity in the crime. The police officer must be satisfied about the necessity and justification of such arrest on the basis of investigation. It is to be noted that arrest without warrant, deciding the amount of force to be applied reasoning the suspicion and all, is capable of being undertaken by anyone from a commissioned officer to even the Hawaldar. This vague and wide conferment of power under the Act manifests in the arbitrariness of the law.
- The most controversial provision is section 6 of the Act which leaves no space for the victim for remedy against any crime committed by the forces, though action can be taken against forces but a long and complex procedure is to be followed. Section 6 provides impunity to the military officers. It establishes 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. This section leaves the victims of the armed forces without a remedy, while assuring safeguards for the military. Moreover, even in case an armed forces member is ever tried for any kind of abuse or wrong, they are only tried in the martial courts, whose judgments are usually not published or made public. This makes evident how badly the law has been framed. The objective of the law should have been to only curb the anti-national activities, that too in a reasonable way, and not to give a free hand to forces to commit crimes by violating the basic human rights. That is the reason why several cases of human rights abuses have remained unheard. The most important aspect from the point of impunity of forces is section 19(b) of the Protection of Human Rights Act, 1993, which exempts the armed forces from the purview of the National Human Rights Commission (NHRC), and even if human rights cases involving them are dealt with, they are done after seeking a report from the central government.
International law and AFSPA
The most serious breach by the AFSPA in international law is a violation of right to life as is recognised by the International Covenant on Civil and Political Rights (ICCPR) 1966. The right to life is non-derogable right, which denotes that no situation, or state of emergency, or internal disturbance can justify the suspension of this right. The authorization to use lethal force under the Act is not compatible with article 6 of ICCPR; the authorization to use force is extremely wide. It vests military officers with the power to use lethal weapons, such as firearms, in all circumstances where an officer deems it appropriate. The use of lethal force against anyone in the disturbed area therefore falls within the personal discretion of the military officer(s) concerned. Moreover, the justification for the use of force, that is, maintenance of public order, is so vague and ill-defined that it effectively does not leave any scope to determine as to where the conditions for such usage are necessary. India is a party to ICCPR since 1979 and thus it is in grave violation of the same covenant. Other provisions of ICCPR violated by AFSPA include the prohibition of torture, cruel, inhuman and degrading treatment (Article 7), the right to liberty and security of the person (Article 9), the right not to be subjected to arbitrary or unlawful interference with one’s privacy, family, home or correspondence (Article 17), the right to freedom of assembly (Article 21), as well as Article 2 (3), which provides for the right to an effective remedy to anyone whose rights protected by the Covenant have been violated. The AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (hereinafter referred as UDHR), the International Covenant on Civil and Political Rights (hereinafter referred as ICCPR), the Convention Against Torture, 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 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The Universal Declaration of Human Rights is an important international instrument for basic human rights. AFPSA also violates the following provisions of UDHR, such as Free and Equal Dignity(Article 1), Non discrimination (Article 2), Life, Liberty, Security of person (Article 3), No Torture (Article 5), Equality before the law (Article 7), Effective remedy (Article 8), No Arbitrary arrest (Article 9), Right property (Article 17).
Though the complete scrapping of the AFSPA is not possible, it is to be kept in mind that the violation of rights of citizens can be justified in no situation. The Act fails to meet the provisions of Indian constitution and also international standards. While India might be the largest democracy in the world, the scars of human rights violations make it very small in giving respect to democratic values.
Basit Farooq and Shariqa Naseer are students of law at the University of Kashmir and can be mailed at firstname.lastname@example.org
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