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Spoorthi-Prinson ISSN 2455-4782 ARMED FORCES SPECIAL PROTECTION ACT: NATIONAL INTEREST AND INDIVIDUAL RIGHTS Authored by: Spoorthi Anur*& Prinson Pais * 2nd Year BA LLB Student, School of Law, Christ ** 2nd Year BA LLB Student, School of Law, Christ ABSTRACT The primary ethos of any democratic set up lies in the supremacy of the individual freedom, rights, and liberties in consonance with the national identity. The Armed Forces Special Powers Act (AFSPA) has recently come into contention regarding its validity and its consequential effect on individual rights and liberties. The Armed Forces Special Powers Act (AFSPA), is promulgated by the government in the so-termed ‘disturbed areas’ of India’s North-East since 1958 and in Jammu and Kashmir (J&K) since the 1990s. The genesis of the Armed Forces Special Protection Act, like several controversial act dates to the colonial era where it served as an ordinance to curb the Quit India movement. A mass movement called by Mahatma Gandhi against the British crown which nestled India under its suppressive rule for over two centuries. Hence as can be noted the primary element of an archaic law like the AFSPA, ideologically indicates curbing any form of rebellion against an established authority. The regions where the impugned act operates today is said to have seen one of the worlds least known acts of state-ordained violence and blatant human right violations carried out by the Indian Armed Forces. The key aim of this research paper is to highlight the effects of the AFSPA on the ethnic population of the North East and Jammu and Kashmir and to take cognizance of the active role played by the Apex court in aiding the status of the aggrieved families in the landmark judgement of Extra- Judicial Execution Victim Families Association (EEVFAM) and Ors V. Union of India (UOI) and Ors. Furthermore, the paper seeks to analyze the effects of the act to reach a comprehensive solution that successfully strikes a balance between the humanitarian and national interest of the state. 203 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9 ISSN 2455-4782 BACKGROUND Unlike the numerous numbers of protective laws passed by the Parliament which aim at preserving and protecting the basic human rights, strengthening and endorsing the Basic Structure of the Constitution. There also exist a number of draconian laws, which in the pretext of “larger interests” of society, empower the state to address and deal with specific issues and situations of violence, political dissent, dissent based on ideology and dissent from majority practices. (Saumya Uma. Repressive laws in India,) The Indian Parliament in its innumerable years has ratified and validated numerous draconian legislations such as the Armed Forces (Special Powers) Act, 1958; Unlawful Activities (Prevention) Act (UAPA), 1967; Terrorist and Disruptive Activities (Prevention) Act, 1987 etc. In recent times, a debate has ensued regarding the validity of such laws from a humanitarian viewpoint and whether national interests supersede individual human rights. Introduced first as an ordinance by the then Viceroy of British India, Lord Linlithgow to suppress the Quit India Movement, under the façade that that it was introduced as a legal sanction to “maintain” the internal security within India from left wing extremists and to suppress rebellion in the name of national interest, but in truth it was used as an instrument by the British to use armed personnel against unarmed civilians who expressed their disregard against the Tyrannical rule of the British. Post-Independence the archaic law was retained by the Parliament and supported by the Constitution under Article 22. The Armed Forces Special Powers Act (AFSPA), 1958, was introduced in India as an emergency measure in 1958 for a year to deal with North Eastern part (Mizoram, Nagaland, Assam, and Sikkim) and Jammu and Kashmir to curb the tensions and suppress the rise of Naga Insurgency and anti-national movements in the North- Eastern part of India. Increasing cases of Arson, murder, loot, and militancy was at its peak in the North- Eastern States and Jammu & Kashmir. In order to tackle these issues, these conflict-prone areas were declared as “disturbed areas” following which the Armed forces were deployed in these areas and AFSPA was declared as the sole statute governing these areas on September 11, 1958. ( Mustafa Haji). India consists of no less than 626 districts out of which at least 136 districts, comprising of a population no less than 150 million people, are subject to the state’s policy of military suppression. Roughly 101 districts out of these 136 have been declared as “disturbed areas”. This results in the 204 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9 ISSN 2455-4782 deployment of the Armed forces and imposition of the arbitrary rule of AFSPA and state-level Disturbed Areas Act, either separately or concurrently to operate. Another 25 districts where joint forces operations are underway to irradiate insurgency, neither of these repressive statutes are imposed, not taking into account state- level acts imposed to resolve this issue. In all fairness, the ground reality is that districts where AFSPA is declared and where it isn’t, the situation is no different. Internal Security continues to be a grave threat and human rights continue to be violated. Another important aspect to look into is the statistics of the expenditure and the burden that follows in declaring the Act in certain states. The central government has set aside Rs 40,000 crore for "internal security" (which falls under the Union Ministry of Home Affairs), i.e. for wars in these districts, where nearly 80% of the central paramilitary forces (whose strength is 9,00,000 plus 145 battalions of the India Reserve Battalion or 1,50,000 personnel) and half of the Indian Army (3,37,000 in Jammu and Kashmir, and 2,80,000 in the northeast) is engaged in counter-insurgency. This sums up to Rs 40,000 crore allocated towards "internal security" to what the Union Ministry of Defence spends on "internal security" (taking merely wages and allowances and pensions of this force), which sums up to approximately Rs 29,000 crore, the Indian government is spending a staggering sum of Rs 69,000 crore annually to pay for these wars. This amount could suffice to pay for a universal Food Security Act in India. Another significantly fearful dimension to look at is the ratio of Military force to the State Police (army, CPMFS, and state armed police). The ration of Armed force against unarmed civilians is roughly one army officer for every 15-20 persons in Jammu & Kashmir, and in the North East, the fact that the population of unarmed civilians is much lesser makes the ratio a lot worse. The heavy concentration of armed forces keeping a constant watch and exercising control over the public and private lives of the people, creates a sense of insecurity and fear among people and causes heavy economic and social damage in these regions due to the recurrent declaring of curfews hampering people from carrying out their day to day activities and earning their livelihood. POWERS For long the Statute has been criticised as providing the Security forces with “a license to kill”. A small Act of 6 sections has enabled the Armed forces to take drastic steps to protect “disturbed 205 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9 ISSN 2455-4782 areas” as notified by the government. Most part of the Act has been criticised by international organizations and a number of petitions were filed in the Apex Court on the grounds that granting arbitrary powers and immunity to armed forces on the pretext that they are granted to protect people and keep peace in these disturbed areas, will ultimately result in misuse and non-moral consequences and the ratio of good and evil will bend in favor of the evil. Out of the 6 section, the two main sections that are highly criticised and have more than 400 petitions still pending for the repeal of these sections are Section 4 and 6. SECTION 4 - SPECIAL POWERS OF THE ARMED FORCES. Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who 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 or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances; (b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offense; (c) Arrest, without warrant, any person who has committed a cognizable offense or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offense and may use such force as may be necessary to effect the arrest; (d) Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.
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