The June 2005 report of the Committee appointed by the Central Government to review the Armed Forces (Special Powers) Act, 1958, has recently been made public. It makes interesting reading.

The Committee consisted of Justice B.P. Jeevan Reddy, former Judge of the Supreme Court, Dr. S.B. Nakade, Shri. P. Shrivastav, former Special Secretary, MHA, Lt. General (Retd.) V.R. Raghavan and Shri. Sanjoy Hazarika.

The core of the report is Part IV recommendations and Part V which are the suggested amendments to the Unlawful Activities (Prevention) Act, 1967.

The recommendations begin with a sort of statement of principles. Even if a law is not made the Central Government can nevertheless order the Army into any particular state under Article 355 of the Constitution to protect the Sate against "internal disturbances". It can do so even without their being a request of the state government.

When the Army is deployed in any state the fundamental rights of the citizens are required to be protected and they remain "sacrosanct and effective". The deployment of the Armed Forces should be undertaken with "great care and circumspection" and ought to be "an exception and not the rule".

The Armed Forces are not to be deployed too frequently and for "long periods of time". Keeping this in view the AFSPA is "too sketchy, too bald, and quite inadequate". "The Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness".

All this is unexceptional. The problem starts when the Committee departs from these principles when it makes its recommendations and suggest amendments.

The first conclusion of Committee is then set out thus: "It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). For that purpose, an appropriate legal mechanism has to be devised".

To justify the transfer of the provisions of AFSPA to another statute, in this case the Unlawful Activities (Prevention) Act, 1967 (UAP Act), the Committee reasons in an interesting fashion as follows: "a major consequence of the proposed course would be to erase the feeling of discrimination and alienation among the people of the North-eastern States that they have been subjected to, what they call, "draconian" enactment made especially for them. The UAP Act applies to entire India including to the North-eastern States. The complaint of discrimination would then no longer be valid."

The Committee then notices that the UAP Act "does not provide for an internal mechanism ensuring accountability of such forces with a view to guard against abuses and excesses by delinquent members of such forces… over the years many people from the region have been complaining that among the most difficult issues is the problem faced by those who seek information about family members and friends who have been picked up and detained by armed forces or security forces.

There have been a large number of cases where those taken away without warrants have "disappeared", or ended up dead or badly injured. Suspicion and bitterness have grown as a result. There is need for a mechanism which is transparent, quick and involves authorities from concerned agencies as well as civil society groups to provide information on the whereabouts of missing persons within 24 hours".

The Committee then sets out the suggested constitution of these "Grievance Cells". The Committee recommended that it should be composed of three persons "namely, a senior member of the local administration as its chair, a Captain of the armed/security forces and a senior member of the local police". The role of the Grievance Cells is to "receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt enquiries and furnish information to the complainant".

Thus it can be seen that the Grievance Cells are dominated by the Security Forces and the Police and have no power to punish at all. All that they can do is enquire into an allegation and provide information.

That is important to have a Civilian Oversight Commission along the lines prevalent in the U.K. is obvious from the fact that the principal grievance against the security forces is that there is no accountability at all and that they torture, rape and kill at will.

No enquiry has ever come to light where the security forces have been severely punished. It is surprising therefore that the Justice Jeevan Reddy Committee should not take this aspect of the matter seriously at all. An independent enquiry is very important for one more reason.

In Appendix A Entry 24, the Committee recommends that "if on enquiry, it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or a suit or other proceeding should be granted under S.6 of the Central Act".

Obviously the word "enquiry" refers to the enquiry conducted by the Grievance Cell. If this Cell is to comprise of the very forces committing the offence, one can hardly expect anything to come out of these enquiries. The promise of compensation and prosecution is therefore illusory.

The insertion of a provision relating to Grievance Cells could possibly have an adverse impact on habeas corpus and other petitions filed in the High Courts or the Supreme Court.

These courts have been regularly ordering judicial enquiries in respect of allegations of torture, executions and disappearances. Should such a clause be inserted it could well be contended that the enquiry ought to be conducted not by an independent judge but by the Grievance Cells set up under statute.

After setting out the principles that the use of the Armed Forces ought to always be for a limited period, the Committee suggests an open ended time schedule in the following manner: "while deploying the forces under sub-section (3) the Central Government shall, by a notification published in the Gazette, specifying the State or the part of the State in which the forces would operate and the period (not exceeding six months) for which the forces shall operate.

At the end of the period so specified, the Central Government shall review the situation in consultation with the State Government and check whether the deployment of forces should continue and if it is to continue for which period. This review shall take place as and when it is found necessary to continue the deployment of the forces at the expiry of the period earlier specified."

It can be seen from this that there is no limitation at all on the deployment of Armed Forces in any state nor are there any guidelines laid down apart from the general statement of principles for the deployment of the Armed Forces.

Then comes the most dangerous part where a provision is sought to be inserted which is even more pernicious than the provisions of AFSPA read together with the Supreme Court judgment in the Naga Peoples Movement for Human Rights case.

Simply put, the Supreme Court interpreted the provisions of AFSPA to mean that the security forces cannot substitute the civil administration and the police and are always to act "in aid of the civil power". What this meant was clarified by the Supreme Court to include taking the police force into confidence, normally not acting without the consent of the police, at all times working in tandem, handing over suspected terrorists to the police forthwith and without interrogation.

The suggested amendments are clearly at the behest of the Security Forces who saw for themselves a larger role than merely acting "in aid of the civil power". The Committee has qualified the clause "in aid of the civil power" by saying that the Forces will do so "to the extent feasible and practicable..However, the manner in which such forces shall conduct their operations shall be within the discretion and judgment of such forces". The Committee further concludes that the deployment of Security Forces in any states can happen "notwithstanding that no request for such force is received from the State Government concerned".

Then comes the clincher. The suggested provision for opening fire is so overbroad that there is no reference to opening fire in self defense or opening fire in the context of the likely commission of a terrorist offence. Mere reasonable suspicion that a person is in possession of arms is sufficient to open fire without anything more.

There is no indication at all that the principle of the minimum use of force is applicable at all. A non commissioned officer can order security forces to open fire. There are no guidelines for opening fire. There are no guidelines for any enquiry to be conducted after the forces open fire and injure persons.

This draconian provision suggested by the Justice Jeevan Reddy Committee is as follows: "In the course of undertaking operations mentioned in (a) above, any officer not below the rank of a non-commissioned officer, may, if it is necessary, in his judgment, for an effective conduct of operations; Use force or fire upon, after giving due warning, an individual or a group of individuals unlawfully carrying or in possession of or is reasonably suspected of being in unlawful possession of any of the articles mentioned in Section 15 of this Act."

It can be seen from the above that the only guideline for opening fire is that the non commissioned officer must, in his judgment, feel it is necessary to do so!

One of the "do’s" suggested is that "if any person dies during the course of these operations, his dead body should be handed over immediately to the police along with the details leading to such death." There is no requirement for an independent enquiry to be conducted.

There is no punishment for torture, forced disappearances or homicide. Thus the main grievance of the people of Manipur that the Armed Forces have raped women, tortured and executed persons and caused forced disappearances has been left unattended to by the Committee.

Finally, Appendix A contains the do’s and don’ts suggested by the Supreme Court with some modifications.