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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.
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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
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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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With reference to Section 4, it provides such extensive powers to every single personnel of the armed forces to use force or even fire upon civilians thereby causing death, if the army personnel find the individual to raise even a slight suspicious. Although the clause provides for the officer to give due warning this has seldom been implemented and this results in numerous cases of fake encounters, killing of innocent people at the discretion of the killer which is from a human rights perspective just a blatant abuse of basic human rights as it is in contravention to the right to life and right to freedom of liberty which is provided as a basic fundamental right under Article 21 of the Indian Constitution. Clause (c) states that any Army personnel can arrest without a warrant under the mere ground of suspicion. This provision is violative of Article 22 of the Constitution guaranteed to every citizen, Article 22 states if a person is detained, then the same shall be produced before a judicial magistrate within 24 hours of the arrest. The above clause is violative of this article and a number of instances have been recorded where the due procedure is not followed and citizens are detained for long periods which is again violative of Article 19 and 21. Additionally, India is also a signatory to a number of International conventions, such as the International Covenant on Civil and Political Rights. Article 2(3) of the ICCPR states that all member nations must provide remedies for violation of rights of their people, even if these violations are carried out in the official capacity of the violator. Universal Declaration of Human Rights (UDHR) to which India is a signatory, states in Article 9 that “No one shall be subjected to arbitrary arrest, detention or exile”. This has attracted significant attention from international human rights bodies and organizations including the UN Special Envoy, who have suggested that India repeal this arbitrary law as it is violative of International law and such a law has no place in a democracy. Nonetheless, the Act continues to stay and is backed not only by the government but also by the last standing pillar of our democracy that is the Judiciary. The scope of intervention from the normal judiciary is also limited or non-existent due to the immunity provided to these Army persons under Section 6 of the Act.
SECTION 6 - PROTECTION TO PERSONS ACTING UNDER ACT
No prosecution, suit or another legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act. 207 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 9
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The Judiciary also showed its support and upheld the arbitrary Act in its outrageous judgment in Naga People’s Movement of Human Rights v. Union Of India, where the Apex Court instead of striking a fair balance between the rights of citizens and public order acted as a support of national security. Thereby providing judgments that are short on ‘legal analyses and rich on ‘patriotic rhetoric’ which defeat the purpose of justice. The entire judgment did not once mention Article 21 in a 34-page judgment given by a bench comprising of a 4-judge bench consisting of the then CJI JS Verma and three others who later went on to become CJI’s.
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) AND ORS V. UNION OF INDIA (UOI) AND ORS – CASE NOTE
Facts: The Petitioners claimed to have compiled 1528 alleged instances of extra-judicial executions carried out not only by the security forces but also by the state police. Further, they alleged that a majority of them had been carried out while in custody and were tortured and killed in cold blood. The place of encounter and the identity of certain victims in a few cases were neither documented nor identified. The petitioners only had elaborate documentation of 62 cases out of 1528 documented by them. The petitioners further referred to 10 cases in particular out of the 62 where, according to the eye-witness accounts exist of extra-judicial executions, but the police and armed forces justify these executions as encounters with insurgents/militants. The petitioners also stated that not a single FIR was filed by the state police against the police or security forces, after repeated complaints filed with respect to the extra-judicial killings. Since no FIR was filed no investigation or prosecution had commenced and the cries of the victim's families fell on deaf ears. The petitioners also claimed that the alleged victims of Extra- judicial killings where innocent and had no past criminal record but were labeled as militants after their death at the discretion of the security forces. The NHRC who's responsibility was to carry out investigations of human rights abuses and recommend prosecution of the guilty turned out to be a "toothless tiger", even the State Human Rights Commission turned out to redundant and not functioning due to non-appointment of members and misallocation of resources despite an order of the High Court. The petitioners were left with no other choice and were compelled to approach the Apex Court for appropriate orders for setting up a special investigation team of five officers outside the said state appointed
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Questions before the court: Whether there has been the subsequent use of excessive force by the Manipur Police or the armed forces in the 1528 cases that have been compiled by the petitioners during the said period of internal disturbance in Manipur
Whether the use of force by the armed forces has been retaliatory to the point of causing death and whether such retaliatory force is permissible by the law on the ground that the victims would come under the definition of ‘enemy’ as defined in Section 3(x) of the Army Act?
Judgment: The Two Judge Bench comprising of Justices Madan B Lokur and Uday Umesh Lalit held that any allegation of excessive force that results in the death of any person by the Manipur Police or the Armed forces in Manipur or any so termed disturbed area must be thoroughly enquired into. The bench further held that even while there exist situations where the security forces have to deal with the ‘enemy’, the rule of law perennially applies and if there has been force that has been used that goes beyond the call of duty, it shall be concluded that there persists no reasonable connection between the force and the performance of their duty. These members of the Manipur Police or the Armed would be liable to be proceeded against.
The Bench further held that in any event, before an individual can be termed as a militant or a terrorist or an insurgent, there must be the commission or some cognizable attempt to commit a violent overt act. A person carrying a weapon in a disturbed area who is in violation of a prohibition placed on the particular area cannot be without any ground labeled a militant or terrorist or insurgent.
An excerpt from the judgment reads
“In so far as the present case is concerned, the Justice Hegde Commission found that none of the victims in the six cases examined by it at the instance of this Court had any credible evidence to show that they had affiliations with a banned or unlawful organization. Therefore, it would not be correct to say that merely because a person was carrying arms in a prohibited area, that person automatically became an enemy or an active member of a banned or unlawful organization. We note, without comment, the contention of the petitioners that in most cases the arms are planted on
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ISSN 2455-4782 the victims”, the Bench added. Finally, the bench concluded that in cases such as the present, there is a greater duty of care and an equally greater necessity of a thorough inquiry since the alleged ‘enemy’ in this case is a citizen of our country entitled to all fundamental rights including article 21 as guaranteed by the constitution.
OTHER ATROCITIES UNDER THE ACT
The Armed Forces Special Protection Act’s provision of impunity to the members of the Indian Armed Forces under which they cannot be prosecuted by any court with appropriate jurisdiction without prior sanction from the Government of the Republic of India has resulted in the security forces acting as a major hub for gross human right violations. Besides the cases that have been aforementioned, there are several other cases that require proportionate attention from the government and judiciary respectively.
Pathribal case: 5 civilian residents were picked up by Rashtriya Rifles and allegedly termed as ‘foreign militants' and accused them of the unrest and infiltration that had taken place in Chhatisinghpura. Local people and families of the civilians took to streets and protested against such atrocities of the security personnel further asserting that the arrested persons didn’t involve themselves in any such act. Initially, no case was lodged due to the impunity granted under AFSPA but as protests became more violent a CBI investigation was ordered. CBI in its report found the Brigadier, the Lieutenant Colonel, two majors and a Subedar of the Rashtriya Rifles guilty of a staged encounter where civilians were picked up from Anantnag district. The Supreme Court of India, on the basis of the above findings of CBI, ordered for a court-martial, as has been provided for within the act. Two years later however the case was closed with no action taken against the accused personnel.
Operation Blue Bird: Operation Blue Bird was an infamous operation launched in Oinam in the Bishnupur District of Manipur. The operation is alleged to have been launched throughout 30 Naga villages. In lieu of this operation, several human rights violations have taken place including extra judicial killings and blatant human rights violations. The security personnel also involved themselves is theft and loot and even sexual harassment of the female members of the village community. A report further stated that several houses were burnt and dismantled and several fake
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ISSN 2455-4782 encounters were undertaken to prove the efficiency of an otherwise futile operation. The operation carried on for several days with the entire area cordoned off which restricted even the civil authorities from taking cognizance of the matter. Several writ petitions and public interest litigations made their way to the high court regarding this matter but no action was taken regarding the same.
Bijbehra firing Incident: The Border security forces opened fire on unarmed civilians in the Anantnag district of Jammu and Kashmir which resulted in the death of 35 residents. It was later alleged that firing was unprovoked and targeted against a peaceful demonstration. A primary Magistrate inquiry and findings by the National Human Rights Council established that the firing was unprovoked. Such findings were accepted in the High Court of Jammu and Kashmir and a compensation to victims and their families was ordered.
Malom firing incident: In Malom, a place near Imphal, Assam Rifles opened fire on 10 persons sitting at a bus stand which resulted in their death. Amongst these persons was a 60-year-old lady and 18-year-old bravery award, winner. This case sparked protested in several districts of Manipur. With this incident as an offset, Irom Sharmila initiated her fast against the AFSPA.
Kunan Poshpora Incident: The Kunan Poshpora incident took place in the Kupwara district of Jammu and Kashmir in February of 1991. This has been regarded to be one of the most horrendous actions undertaken by the security forces where about 100 women including pregnant women were allegedly gang-raped by army officials while their families bore witness to the incident. There was procedural inquiry made regarding the issue and the issue was coined baseless and not ad judicable. The Chief Justice of the Jammu and Kashmir High Court in his findings opined that evidence was grossly mishandled and even the normal investigative procedures were ignored. A case is still running in the Supreme Court of India on this issue.
Manorama Killing: Thangjam Manorama was a resident of Imphal Manipur. On the night of 10th July 2004, the Assam Rifles went to her house without warrant tortured her in front of her family members and then threw her in a truck. In the morning her incarcerated body was found at Ngariyan Yairipok road with several bullet injuries near her private organs. Massive protests broke out in several parts of Manipur including the infamous naked protest but no criminal charges could
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Machil Encounter: In Baramulla of Jammu and Kashmir, three civilians were shot by the Indian army in Machil sector of the Kupwara district and were projected to have been foreign militants. However, with the subsequent protest and inquiry, it was established that these individuals were in fact civilians and were called by the army to provide portering services and were later killed in a staged encounter. Protests erupted all over the state and force was used to suppress these protests due to which as many as 110 civilians lost their lives in the summer unrest of the year 2010. Indian army in its procedure of court martial found them guilty and in November 2014 sentenced the accused to life imprisonment.
Mass Graves in Jammu and Kashmir: In the year 2008-09, it is estimated that approximately 3000 unmarked graves were found in several districts like Bandipora, Baramulla, Kupwara and others. It was rumored that most of these graves belong to people who have been killed and buried by security personnel without proper intimation or procedure. There was further speculation that these may be persons who were reported to have gone missing. Thousands of such cases of disappearances have been recorded by the State Human Rights Commission. Furthermore, the commission confirmed that thousands of bullets ridden bodies were buried in these unmarked graves. After investigation 500 bodies were identified as local residents and some even correlated to missing person reports that were filed. In spite of all cry and hue by human rights organizations and local residents no concrete action was taken and neither was there are investigation undertaken.
CONCLUSION
The acts like the AFSPA present themselves as an impediment to democracy and development alike. While the researchers recognize that the act is necessary to maintain national interest it is discernible that certain sections of the AFSPA are arbitrary and beat the purpose, if any, of enacting the act in the first place. As has been asserted through the course of the paper the AFSPA was enacted during the British era to curtail uprisings against the crown. Over the course of the Indian independence, the act was further utilized to curb tensions in the so-termed “disturbed areas” Thus
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ISSN 2455-4782 we argue that basic ethos of the legislation revolves around suppressing dissent against an established authority. Such a proposition holds no relevance in a democratic set up like India.
It was argued in Extra-Judicial Execution Victim Families Association (EEVFAM) and Ors V. Union of India (UOI) and Ors that the AFSPA needs to be upheld in order to facilitate national interest and uphold sovereignty. The contention of the Attorney General revolved around the fact that there persisted a war-like situation in Manipur and other areas and war under the ambit of section 121 of the Indian Penal Code didn’t necessarily denote a war between two sovereign states but also included violent demonstrations of the people against the government. Thus, substantiating his argument that it was essential that the armed forces be entrusted with enough power to diffuse an internal war like situation. This remains the stance of all preceding governments and the present. Therefore, the researchers propound that a considerable middle ground can be reached regarding the issue and consequently an attempt can be made to maintain national interest while protecting individual human rights. Hence, we believe the primary recommendation remains that the act be repealed. However, we further suggest the following
Recommendations made by the National Human Rights Commission must be given serious consideration and a necessary provision must be made for its effective functioning
A separate Human Rights Commission body must be set up within Security Forces to ensure that no security personnel is abusing or taking advantage of their official capacity and immunity provided to them, in order to cause harm, harass, threaten, torture or kill under the umbrella of national security.
The Armed Forces Special Protection Act needs to be amended to ensure that the appropriate court has jurisdiction over cases of extra judicial killings and no provision for a court martial ought to made available as it beats the Audi Alterum Partem principle of natural justice.
Section 4 of the AFSPA provide arbitrary powers to security personnel who at their own discretion arrest torture both mentally and physically since section 4 and section 6 allows them to do so. Hence Section 4 of the Act must be amended in such a manner as to arrest only with a warrant, only if thorough investigation has proved that insurgency is prevalent in a particular area search houses of civilians, by deploying separate professional search parties only meant for carrying out search and confiscate missions
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Section 6 of the Act provides bulletproof immunity to such army personnel thereby destroying the very fundamental right of Article 14 which enshrines that all are equal under the law. This blanket immunity puts such army personnel above the common man thereby allowing them to resort to violence and evil deeds and suppressive actions. Hence section 6 of the Act must be repealed
Further, better internal security measure needs to be adopted to curb and potential internal threats and no act must be used as a tool to further the ends of the state while using its statesmen as the means to the end.
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