The Armed Forces (Special Powers) Act - Repressive Law

The precursor of the AFSPA appeared in the statute books of India at a crucial phase in India’s freedom struggle - the year 1942. In Bombay, the All India Congress Committee in its August 8 meeting, decided to launch the Quit India movement. In Singapore, about 40,000 British Indian soldiers who had joined the Indian National Army were marching towards India from the eastern front together with the Japanese soldiers. In a sweeping move, Congress was declared an illegal organisation. Prominent Congress leaders were arrested and jailed. A mass upheaval broke out all over India. The Viceroy Lord Linlithgow declared emergency all over British India and promulgated the Armed Forces (Special Powers) Ordinance, 1942 on August 15, 1942, conferring vaguely defined special powers to the armed forces to arrest and use force (even kill) civilians on mere suspicion.

Five years later, on 15 August 1947, India got independence and became a Sovereign Democratic Republic on 26 January 1950. But, in the remote North East corner of the country, the armed forces are enjoying today the same special powers and privileges granted in the colonial Ordinance. In its new incarnation, the enabling legislation is called the Armed Forces (Special Powers) Act, 1958.

• Certain modifications were made to the 1942 Ordinance.
• The provision for declaration of emergency was replaced by the term ‘disturbed area’.
• More vaguely defined powers were added (including the power to use force to even kill any person on suspicion of disturbing public order or carrying weapons, ‘to search any place without warrant or destroy any place on suspicion of being used by armed groups) to the old Ordinance;
• The power to take action, given to an officer of the rank of Captain and above in the old Ordinance, was delegated to lower ranks including Junior Commissioned officers and Non-commissioned officers.
• The area of operation was confined to ethnically distinct North East region; unlike the 1942 Ordinance, which was applied to the whole of India.

As a result of these modifications, the 1958 Ordinance became more deceptive and harsher than the colonial Ordinance of 1942.

Parliament Debates

In the monsoon session of the Parliament in 1958, a Bill to replace the Ordinance was introduced. While introducing the Bill, the then Home Minister Mr. G B Pant justified the Bill by stating: ... there (Assam and Manipur), they (certain misguided sections of the Nagas, in the words of Mr. Pant) are indulging in arson, murder, loot, dacoity etc. So it has become necessary to adopt effective measures for the protection of the people in those areas. In order to enable the armed forces to handle the situation effectively wherever such problem arises hereafter, it has been considered necessary to introduce this Bill.

Some members of Parliament opposed it on the ground that blanket powers being conferred on the army by this Act would lead to the violation of the Fundamental Rights of the people, that this Act would circumvent the Constitution by effectively imposing an Emergency in these areas without actually declaring one and that it would abrogate the powers of the civil authority in favour of the armed forces. Manipur has only two seats in the Lower House of the Parliament. When the Bill was introduced, both the Members of Parliament (MPs) from Manipur, Mr. R. Suisa and Mr. Laishram Achaw Singh, vehemently opposed it. Mr. Laishram Achaw Singh, MP from Inner Manipur Parliamentary Constituency, voiced his objections in the following words:

In my humble opinion, this measure is unnecessary and also unwarranted. This Bill is sure to bring about complications and difficulties in those areas, especially in those which are going to be declared as disturbed areas. I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases, especially in the sub-divisions of Kohima and Mokokchung.

In such a situation, I do not like that the officers should be invested with special powers. Recently, such an incident took place in the Headquarters of the North Cachar and Mikir Hills District. Instead of rounding (up) the hostile Nagas, some military personnel trespassed into the houses of some retired tribal official and committed rape on the widow. So, such things have deteriorated the situation. The tribal people have risen against the military people there. It is, theref ore, dangerous to invest the military authorities with extraordinary powers of killing and of arrest without warrant and of house breaking.

I have got reports of the operations of the armed forces in these tribal sub-divisions of Manipur, especially in the subdivision of Tamenglong where these armed forces have by force occupied the religious institutions, in spite of the protests from the local people. Most of them are Christians there and hold their Churches sacred. But these armed forces would forcibly occupy these institutions. .

This piece of legislation is an anti-democratic measure and also a reactionary one. Instead of helping to keep the law The Armed Forces (Special Powers) Act - Repressive Law and order position in these areas, if they declare some areas as disturbed areas, it would cause more repression, more misunderstanding and more unnecessary persecutions in the tribal areas. This is a black law. This is also an act of provocation on the part of the Government. How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only severe the right of the people and harass innocent folk and deteriorate the situation”.

However, the few voices of dissent were drowned out and after brief discussions (three hours in the Lower House and four hours in the Upper House), the Bill was passed by Parliament. The resultant Act was given retrospective effect from May 22, 1958.

Spread of ‘Disturbed Area’

Parts of Manipur were also declared ‘disturbed areas’ under the Act since its inception. Then it gradually spread to the other areas. In 1970, the State Home Department through a series of notifications declared parts of Manipur South District, Manipur West District, Manipur East District, Manipur North District, Sadar Hills Sub-division of Manipur North District as ‘disturbed areas’ under the Armed Forces (Special Powers) Act, 1958.

In October 1975, the entire Tengnoupal District was declared disturbed. In May 1978, the whole area of Manipur South District, Jiribam Sub Division of Manipur Central District and Tengnoupal District were covered.

Finally, under the Government of Manipur, Home Department Notification dated 8 September 1980, the entire Manipur Central District was declared disturbed. With this notification, the whole of Manipur became a ‘disturbed area’ under the Armed Forces (Special Powers) Act, 1958. No part of Manipur has been de-notified ever since.

In January 1965, the entire Mizoram (then Lushai Hills District of Assam) was declared disturbed. In November 1970, the Armed Forces (Special Powers) Act was extended to Tripura (then a Union Territory) by a notification of the Government of India

In 1972, the Act was amended. This time, it was Mr. K. C. Pant, the son of Mr. G. B. Pant and new Home Minister, who moved the amendment. He laid down the objectives of the amendment as:

Firstly, it is proposed that the Armed Forces (Assam and Manipur) Special Powers Act, 1958 may have uniform application in all the five States and the two Union Territories in the North Eastern region.

Secondly, it sought to state clearly that the Governor of these States and the Administrator of the two Union Territories would have the power to declare an area as disturbed.

Thirdly, it is proposed to take that power also for the Central government.

Long Road to Nowhere -Judicial Activism

In the post-Emergency era, the Indian judiciary struggled hard for a face-lift with judicial activism. The mission was to impress the masses, in the words of Justice Krishna Iyer, ‘with not just its majesty, but also its justice’. The concept of Right to Life (Art. 21) in the Indian Constitution was expanded. The ‘procedure established by law’ in the Article was interpreted to be on the lines of ‘due process of law’ in the American Constitution. A combined reading of Right to Equality (Article 14), Right to Fundamental Freedoms (Article 19) and Right to Life added a whole new ‘human rights’ dimension to constitutional jurisprudence.International human rights standards were repeatedly read into the fundamental rights of the Constitution. Novel procedures like the Public Interest Litigation (PIL) and the Lok Adalat (People’s Court) revolutionised the Indian judiciary.

But it was a completely different story on the North East front. The whole region was already pockmarked with ‘disturbed areas’. By September 1980, the whole State of Manipur was declared ‘disturbed’ under the Armed Forces (Special Powers) Act, 1958 (AFSPA). A large number of Army troops and paramilitary forces of the Central government moved in. Then began the recurrent acts of ruthless atrocity: midnight knocks, enforced disappearances, arbitrary executions, torture, rapes and house breaking.

A few Manipuri students studying in Delhi got together and formed the Human Rights Forum, Manipur. It moved a PIL in the Supreme Court, challenging the constitutional validity of AFSPA. The petition was admitted as Writ Petition No. (C) 5328 of 1980. Two years later, the Naga People’s Movement for Human Rights Army Jeeps on a Manipur main road - a common sight. independent people’s inquiry 9 combat law n April - May 2003 (NPMHR) and the People’s Union for Democratic Rights (PUDR) also moved separate writ petitions on the same issue. Subsequently, more writ petitions and Appeals from the High Courts followed. However, the Supreme Court, in its most active phase otherwise, simply slept over the matter for about two decades as the people in the North East bore the brunt of a de facto permanent emergency under the Armed Forces (Special Powers) Act.

International Attention

It was in the beginning of the 1990s that the international community became aware of the AFSPA as its tentacles spread to Kashmir, the hotbed of South Asian politics, and as it consequently found a mention in the UN Human Rights Commission debates and in reports of the Thematic Special Rapporteur.

In 1991, the UN Human Rights Committee considered the Government of India’s Second Periodic Report under ICCPR. A few months earlier, Amnesty International came out with the first reports on Manipur entitled Operation Bluebird: A Case Study of Torture and Extrajudicial Executions in Manipur (AI INDEX: ASA 20/17/90). Human rights activists from Manipur briefed the Committee members on the AFSPA. The Human Rights Committee came down hard on the representatives of the Indian Government on the AFSPA and the Terrorist And Disruptive Activities (Prevention) Act (TADA).

It was after such critical observations of the UN Human Rights Committee and of international human rights bodies that the Indian Parliament enacted the Protection of Human Rights Act, 1993. A National Human Rights Commission and a State Human Rights Commission for each State can be established under the Act.

TADA allowed detention of suspects for long periods and the trials were to be conducted in the designated courts only. On the other hand, under the AFSPA, a suspect would count himself lucky if he is only detained and not killed!

However, the imposition of TADA, which affected the whole country, was discontinued, following a nationwide campaign. But the AFSPA, which is applicable only among the national minorities in the North East, continues to remain in force.

It was from this perspective that the UN Committee on the Elimination of all forms of Racial Discrimination brought up the issue of AFSPA while discussing India in 1996. The Concluding Observation contained in UN document CERD/C/304/Add.13 of 17 September 1996 reads as follows:

15. The Committee is seriously concerned that the Kashmiris, as well as other groups (read, the Manipuris), are frequently treated, on account of their ethnic or national origin, in ways contrary to the basic provisions of the Convention.

16. Clause 19 of the Protection of Human Rights Act prevents the National Commission on Human Rights from directly investigating allegations of abuse involving the armed forces. This is a too broad restriction on its powers and contributes to a climate of impunity for members of the armed forces.

Till date, the most detailed discussion on AFSPA within the UN human rights treaty bodies was in July 1997 at Geneva, when the UN Human Rights Committee considered the Third Periodic Report of India. Human rights defenders from Manipur and Assam were able to apprise the members of the Committee with detailed reports, with supporting documents, of human rights abuses under AFSPA.

The Committee questioned the Government of India representatives on the wide ranging powers given to the armed forces and the de facto state of emergency in Manipur which, in fact, dominated the deliberations of the Committee. Finally, the UN Human Rights Committee, in its concluding observations said:

18. The Committee remains concerned at the continuing reliance on special powers under legislation such as the Armed Forces Special Powers Act, the Public Safety Act and the National Security Act in areas declared to be disturbed and at serious human rights violations, in particular with respect to Article 6,7,9 and 14 of the Covenant, committed by security and armed forces acting under these laws as well as by paramilitary and insurgent groups. The Committee, noting that the examination of the constitutionality of the Armed Forces (Special Powers) Act, long pending before the Supreme Court is due to be heard in August 1997, hopes that its provisions will also be examined for their compatibility with the Covenant.

In this respect, bearing in mind the provisions of Article 1, 19 and 25 of the Covenant, the Committee endorses the views of the National Human Rights Commission to the effect that the problems in areas affected by terrorism and armed insurgency are essentially political in character and that the approach to resolving such problems must also, essentially, be political, and emphasizes that terrorism should be fought with means that are compatible with the Covenant.

19. The Committee regrets that some parts of India remain subject to declaration as disturbed areas over many years. For example, the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer, and that in these areas, the State party is in effect using emergency powers without resorting to Article 4, paragraph 3, of the Covenant.

The Committee recommends that the application of these emergency powers be closely monitored so as to ensure its strict compliance with the provisions of the Covenant.

UN Human Rights Commission

The UN Human Rights Commission was kept in the dark on the actual situation in the North East by the Government of India, despite repeated official requests from Mr. Leandro Despouy, the UN Special Rapporteur on States of Emergencies, who was conducting a study for the Commission. The Government of 10 combat law n April - May 2003 independent people’s inquiry India refused to admit that an undeclared state of emergency existed in the North East under AFSPA.

However, NGOs have filled in the information gap to some extent. Other Thematic Special Rapporteurs and the Working Groups of the Commission have, of late, started commenting on the issue. Mr. Bacre Waly Ndiaye, the then Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, [UN document E/CN.4/1998/68/Add.1 of 19 December 1997 (para. 203)] reported as follows:

...the Special Rapporteur’s attention was particularly drawn to reports indicating the existence of a pattern of killings in the State of Manipur. Civilians, including women and children, as well as suspected members of armed opposition groups are reportedly killed by members of the armed forces, many of them allegedly deliberately and arbitrarily. The Armed Forces (Special Powers) Act of 1958 reportedly gives them widespread powers to shoot to kill and protect them from prosecution for any acts carried out under its provisions. The situation is further aggravated by the restrictions placed on access to the region by the Government. The result of this policy is a climate in which security forces are able to use excessive force with impunity.

The Court Stirs

As assured by India’s representative to the UN Human Rights Committee in August 1997, a five-member Constitution Bench of the Supreme Court headed by the Chief Justice, J.S. Verma, finally heard the petitions challenging the AFSPA. The National Human Rights Commission too, reportedly, played a role.

Many legal luminaries argued on behalf of the petitioners. The Attorney General of India, Mr. Ashok Desai, who also headed the Indian delegation to the UN Human Rights Committee on the Third Periodic Report, appeared on behalf of the Indian Government.

The Act was challenged on various grounds: the Parliament was not competent to enact the legislation; it was a colourable legislation; it subjugated and displaced the civil authority; the arbitrary and unreasonable power granted to the armed forces violated the fundamental rights of a citizen, etc. It was all in vain. On November 27, 1997 the Supreme Court of India upheld in toto the constitutionality of the Armed Forces (Special Powers) Act, 1958. The Judgement did make some cosmetic recommendations to check the flagrant abuse of the Act. But, for the people living under the shadow of the Armed Forces (Special Powers) Act, 1958, it was practically useless.

The Judgement

The Judgement on the constitutionality of the Armed Forces (Special Power) Act is one of the most conservative judgements in the annals of the Supreme Court of India. The Court had delivered landmark judgements upholding human rights in the past. In this particular case, it has practically given its stamp of approval to even the arbitrary execution of a citizen on mere suspicion.

The Judgement is based on the premise put forward by the Union of India that (Para 53) :

... an inquiry is made whenever complaint about misuse of power conferred under the Central Act is received and that on enquiry most of the complaints were found to be false, and that whenever it is found that there is substance in the complaint, suitable action has been taken against the person concerned under the provisions of the Army Act.

The ground reality is very far from the government’s claim. There are scores of cases where ‘suitable action’ has not been taken up even after Official Enquiries clearly established human rights abuse by the armed forces. There are still more cases where proper enquiries have never been conducted. In the course of hearing, the Court did not entertain documentary evidence of individual cases for illustration of the true picture.

The Judgement put aside all the arguments raised by the learned counsels of the petitioners. The Judgement, in substance, relies on arguments not too different from those put forward by the Attorney General while defending the Government both in the Court and in the UN Human Rights Committee in Geneva.

Impossible Remedies

From the point of view of the victims, the Judgement offers three possible remedies:

• That the declaration of disturbed area should be periodically reviewed;
• That the armed forces should strictly follow the Do’s and Don’ts issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950;
• That the order of the Central Government refusing or granting sanction is subject to judicial review and the Central Government should pass an order giving reasons.

The implications of these remedies, from the perspective of a victim seeking relief, are:

• The Court did not give any criteria for objective assessment of the situation before declaration as ‘disturbed area’. Thus, in practice, the review is a routine bureaucratic exercise, as it had always been in the past.
• In practice, the Do’s and Don’ts are often violated with the knowledge of, and violations covered up by, the higher army authorities. To victims already traumatised by the armed forces, the last thing they have in mind is lodging a complaint to the same forces to get justice.
• Even if a complaint is lodged against army personnel, the procedure followed in Indian military courts under Army Act, 1950 falls far short of an ‘equitable, impartial and independent administration of justice’, which is the internationally accepted standard under Article 14 of the ICCPR.
• Prosecution under the Criminal Procedure Code arises after registering a case with the police. But the local police usually discourage the victim from registering a case, for the police have a notion that they have no power to investigate into the conduct of the armed forces. Legal positions apart, the police are too scared of offending the army.
• Even if the police file a charge sheet against guilty army personnel after due investigations, getting prosecution sanction from the Central Government is a long and costly procedural hurdle. Assuming that the Central Government finally gives the sanction, the victim is pitted against the resources of the armed forces for another legal battle, as the Judgement says ‘refusing or granting sanction should be subjected to judicial review’.

On this particular issue of prosecution sanction, the view expressed by Chief Justice Rajsoomer Lallah, Member of the UN Human Rights Committee, while considering India’s Third Periodic Report under ICCPR, is relevant. He said:

...the choice here, and I take it from the answers given by the Attorney General, is between the harassment of officials and the vindication of right of a citizen. If a choice has to be made why not let the courts decide whether the action is vexatious or frivolous? To whom could the citizen turn if it is the executive which decides this? Suppose the executive says ‘No, I am not going to authorise you under section 6’ what does he do? Presumably he goes to the court. Can it be dealt with there, since no proceeding can be instituted there?

But let us assume that it would go by way of judicial review, you are still landed in the lap of the judges and one has to think of the practical effect of this, the citizen who doesn’t have the resources of the administration is put to the expense of trying to get permission, if it is refused then trying to get the court to force the executive to give the permission. But I will not go on and on about this. There is a problem here and I think if a choice has to be made between two evils, let the poor citizen have the benefit of the choice.

Ignoring UN Request

UN Human Rights Committee made a specific request to examine the compatibility of the provisions of AFSPA with the ICCPR, when the Supreme Court of India examined the constitutionality of the AFSPA.

The UN body had repeatedly elaborated on serious human rights violations pertaining to Articles 6,7,9 and 14 of the Covenant, in areas declared to be disturbed under the AFSPA. This was brought to the notice of the Court. But the matter did not find a mention in the Judgement. However, the Court did make a passing comment on certain facets of life under the AFSPA. In para 39, the Judgement noted:

There is one aspect, which cannot be ignored. The primary task of the armed forces of the Union is to defend the country in the event of war or when it is faced with external aggression. Their training and orientation is to defeat the hostile forces.

A situation of internal disturbance involving the local population requires a different approach. Involvement of armed forces in handling such a situation brings them in confrontation with their countrymen.

Prolonged or too frequent deployment of armed forces for handling such situation is likely to generate a feeling of alienation among the people against the armed forces .

Conclusion

The Judgement has sanctified the Armed Forces (Special Powers) Act. It has emboldened the armed forces to operate with impunity against the racially and culturally distinct minorities in North East India. Much against the Supreme Court’s wishes, it is likely to generate more the feeling of alienation among the Manipuris against the armed forces.

(Originally abstracted from the Manipur Update, Vol.I, Issue 1, Human Rights Alert)
Reprinted by permission from Combat Law