Revisiting the Armed Forces Special Powers Act, 1958
- Part 2 -

Laishram Malem Mangal *

Salient Features of AFSPA

Sec.4 (a) Special power 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 – if he is of the opinion that it is necessary to do so for the maintenance of Public order

(a) can fire upon even to the causing of death;

(b) destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or likely to be made or are attempted to be made;

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence 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;

Sec.5 Arrested persons to be made over to the nearest police station within the least possible delay, together with a report of the circumstances occasioning the arrest.

Sec.6 No prosecution, suit or other legal proceedings 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.

AFSPA: A Critique

(a)AFSPA and Indian Law.

The greatest outrage of AFSPA is Sec. 4 (a) which deprives – the core of all human rights and fundamental freedoms – Right to Life at mere suspicion. Human rights are those basic inalienable birth rights without which a man would be a mere physical animal being but not human. (Right to) Life is the crux from which everything grows.

This inalienable core right is protected and guaranteed as absolute, non-suspendable and non-derogable in many international human right laws and international humanitarian laws. The Indian constitution enshrines it in Article 21 which reads as: "No person shall be deprived of his life and personal liberty except according to procedure established by law".

It is absolute and non-suspendable even in emergency times. Absolute here means that it can only be deprived in accordance with the procedure established by law. Sec. 4 (a) empowers the armed forces to shoot to kill at mere suspicion. The 'procedure according to which a person can be shoot to the causing of death' under sec. 4(a) was debated in Parliament in 1958.

The Supreme Court upheld the constitutionality of Sec. 4(a) in NPMHR case[12] by following strict interpretation of 'procedure established by law' of Article 21 as done in Gopalan.[13] In Gopalan, Justice Fazal Ali dissenting from the majority view, stated that the word procedure suggest certain principles of Justice which inhere in every civilized system of law.[14]

Justice P.N. Bhagwati in the landmark Maneka Gandhi case which practically over ruled Gopalan held "procedure established by law" must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise it would not be procedure at all and the requirements of Article 21 would not be satisfied".[15]

The procedure prescribed under Sec.4(a) is subjective and not just and fair but arbitrary. Therefore, Sec. 4 (a) violates the non-derogable absolute right to life at 'mere suspicion' or is mere suspicion the established procedure of Article 21 for the north east? The Appex Court saved the mainland Indians in Gopalan but not the peoples in the peripheries like the north east, Jammu & Kashmir, etc. in NPMHR.[16]

Non-suspendable and absolute right of Article 21 is deprived under AFSPA on the false premise of established procedure. The Supreme Court and the Indian executive permits to abrogate Article 21 under AFSPA in the north east. AFSPA violates the rule of law of Article 21. For rule of law does not mean rule according to statutory law pure and simple. It connotes some higher kind of law which is reasonable, just and non-discriminatory.[17]

According to Justice Iyer, procedure in Article 21 means fair, not formal, procedure; 'law' is reasonable law and not any enacted legislation.[18] It is obvoius that AFSPA is not a law in the strict sense of the term. For "People's Good Is The Highest Law" stated the Roman Lawyer, Cicero. AFSPA violates the constitutional value of supreme importance – Article 21 in a democratic society.[19]

Under procedure established by law of Sec. 4 (a) the armed forces are committing extra judicial, arbitrary and summary executions with impunity – sanction of the Supreme Court in the poor north east.[20] Professor N. Sanajaoba described the Act as the jurisprudence of suspicion.[21]

The highly creative and sensitive activism of the Supreme Court towards the protection and security of life and personal liberty as was evident in Maneka Gandhi failed miserably in NPMHR. The NPMHR judgment further legitimized and fortified the armed forces to extra-judicially execute people at mere suspicion. It justified to kill humanity at mere suspicious behaviour. More or less NPMHR could be regarded as the North east Gopalan post-Maneka Gandhi, which the SC did not save.

Maintenance of public order and tranquility is within the ambit of CrPC. Sec. 129 of CrPC provides for dispersal of assembly by use of civil forces. Sec.(s) 130 and 131 provides power of armed forces and certain armed forces officers to disperse assembly by use of minimum force respectively. These laws are adequate enough to maintain public order and tranquility. AFSPA is simply extra and excessive empowerment of the armed forces to immunize their obligations and liabilities.

Sec.5 violates Article 22(2) of the Indian Constitution which provides protection against arrest and detention. Under Sec.5, a person arrested must be handed over to the nearest police station with the least possible delay along with the circumstances occasioning such arrest.

"Least possible delay" is vague and nowhere defined. Law must be precise and clear. Least possible delay may take months, years or whole life as was the case of Sanamacha who was never handed over to the nearest police station. Exceptions available to Article 22 do not arise here, for AFSPA is not a preventive detention law.

Dr. B.R. Ambedkar described Article 32 as the very heart and soul of the Indian constitution. Sec. 6 violates Article 226 and Article 32 of the constitution by denying right to remedy. When there is no remedy, purpose of guaranteeing right is defeated. For under Sec.6 initiating legal prosecutions against armed forces needs prior sanction of the Central Government.

Given the past incidents of gross human rights violations in which culprits were hardly brought to justice, it is with little hope to seek prior sanction of the Central Government. The remedy provided under Sec. 6 is no remedy at all in the true sense of the term. For justice must not only be done but also manifestly seen to be done.

Amnesty International reports that not a single armed forces personnel have been punished for human rights violations in the north east.[22] Justice delayed is justice denied. AFSPA is not law at all or a lawless law.[23]

To be continued.....

Authors Notes:
This is a paper presented at the Human Rights Day, 10th December, 2008 organized by the LMS Law College, Imphal on the theme "Human Rights, Law and Society". The topic of my paper is Revisiting the Armed Forces Special Powers Act, 1958.