Revisiting the Armed Forces Special Powers Act, 1958
- Notes and References -

Laishram Malem Mangal *

Notes and References

* The writer acknowledges the thoughtful comments and suggestions received from Dr. N. Pramod, Sr. Lecturer, L.M.S. Law College, Imphal, right from the early draft of this paper.

1. South Asia Human Rights Documentation Centre (SAHRDC), Alternate Report and Commentary to the UN Human Rights Committee on India's Third Periodic Report under Article 40 of the International Covenant On Civil and Political Rights (ICCPR), July 1997.

2. Rajeev Dhawan, POTO: An Assualt on Democracy, The Hindu, Online Edition of India's Newspaper, Friday, Nov.16, 2001. See also "Special Security Legislation and Human Rights" : A Report of Four Regional Workshops and A National Conference On Security Legislation and Human Rights, Amnesty International India, Dec.2002, p.21.

3. N. Sanajaoba, 2002, Human Rights In The New Millennium, Manas Publications, 24, Ansari Road, Darya Ganj, New Delhi, p.177.

4. Prof. M.P. Jain, Indian Constitutional Law, 5th Edition, 2007, Wadhwa Nagpur, p.1160.

5. A.K. Gopalan v. State of Madras, AIR 1950 SC 88.

6. N. Sanajaoba, Revisiting Justice Jeevan Reddy Report on Armed Forces Special Powers Act, 1958, Gauhati University, Jouranl of Law, Vol. VI, 2006, p.29.

7. Preamble, UN Charter, Para 2, Articles 1(1), 2(4), Preamble, UDHR Para I, II, III, Article 1 of ICCPR and ICESCR respectively.

8. S.N. Sen, History : Modern India, 2nd Edition, 2000, New Age International Publishers, 4835/24, Ansari Road, Darya Ganj, New Delhi - 02, pp.277-278.

9. SAHRDC, Alternate Report and Commentary to the UN Human Rights Committee on India's Third Periodic Report under Article 40 of the ICCPR, July 1997.

10. Prof. M.P. Jain, Indian Constitutional Law, 5th Edition, 2007, Wadhwa Nagpur, p.1165.

11. Naga People's Movement for Human Rights (NPMHR) v. Union of India, AIR 1997 SC 431, P.436, 437, 438.

12. Ibid, p.436.

13. A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88.

14. Ibid, p.436.

15. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

16. NPMHR V. UOI, AIR 1997 SC 431.

17. Prof. M.P. Jain, Indian Constitutional Law, 5th Edition, 2007, Wadhwa Nagpur, p.7.

18. Ibid, p.1086.

19. Justice P.N. Bhagwati in Francis Corale v. Union Territory of Delhi, AIR 1981 SC 746 : (1981) 1 SC 608: See also Prof. M.P. Jain, Indian Constitutional Law, 5th Edition, 2007, Wadhwa Nagpur, p.1087.

20. The Supreme Court upheld Sec. 4 (a) and other provisions of the AFSPA as constitutional and not arbitrary thus it implies that it has sanctioned the armed forces to extra-judicially execute innocent and suspected peoples at mere suspicion.

21. N. Sanajaoba, People's Law Vs. Anti People Black Law, Approach Paper, "Conference On Human Rights In India With Specific Reference To The North Eastern States", 19th - 20th Jan.1997, Namdeo Hall, University of Pune.

22. SAHRDC, A Study In National Security Tyranny, Nov. 26, 1995.

23. N. Sanajaoba, People's Law Vs. Anti People Black Law, Approach Paper, "Conference On Human Rights In India With Specific Reference To The North Eastern States", 19th - 20th Jan.1997, Namdeo Hall, University of Pune.

24. Adopted by the General Assembly Resolution 217 - A (111) of 10th Dec. 1948 : GeneraL Assembly Official Records, Third Session, Part -I, Resolutions (UN Dec. A?810) pp.71-77. See also S.K. Kapoor - "International Law and Human Rights", 2004, Central Law Agency, 30 D/1 Motilal Nehru Road, Allahabad, p.777.

25. General Assembly Resolution 2200 A (XXI), Dec.1903. See also S.K. Kapoor - "International Law and Human Rights", 2004, Central Law Agency, 30 D/1 Motilal Nehru Road, Allahabad, p.786.

26. Ibid.

27. At Present 162 States are Parties to ICCPR and a further 8 Signatories (pending ratification). A country by country list of declarations and reservations made upon ratification, accession or succession can be seen at http://www.unhcr.ch/html/menu3/b/treaty5_asp.htm. 2 Optional Protocols to the ICCPR adopted by the General Assembly are as follows :-

1. Optional Protocol relating to receiving of communications from individual claiming to be victims of violations of any of the rights set forth in the Covenant. It was adopted in 1996 and came into force on March 23, 1976.

2. Second Optional Protocol aims at abolition of death penalty, adopted on 15th Dec.1989 and came into force on 11th July, 1991.

28. SAHRDC, Alternate Report and Commentary to the UN Human Rights Committee on India's Third Periodic Report under Article 40 of the ICCPR, July 1997.

29. Preamble, Para 3, UDHR, 10th Dec. 1958.

30. N. Sanajaoba, Revisiting Justice Jeevan Reddy Report on Armed Forces Special Powers Act, 1958, Gauhati University, Journal of Law, Vol. VI, 2006, p.10.

31. American Convention On Human Rights adopted on 22nd Nov. 1969 at San Jose, Costa Rica and came into force on July 11, 1978. See also S.K. Kapoor - "International Law and Human Rights", 2004, Central Law Agency, 30 D/1 Motilal Nehru Road, Allahabad, p.838.

32. European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome in Nov. 1950 and entered into force in Sept.1953. Ibid, p.821.

33. African Charter on Human and People's Rights adopted on June 27th, 1981 and entered into force in Oct.1986. Ibid, p. 843.

34. SAHRDC, A Study In National Security Tyranny, Nov. 26, 1995.

35. Ibid.

36. Ibid.

37. Hans-Peter Gasser : International Humanitarian Law, A Manual of International Humanitarian Law, Edited by N. Sanajaoba, 2004, Regency Publications, 20/36, G, Old Market, West Patel Nagar, New Delhi - 08, pp.204-219.

38. The International Red Cross Conference in Stockholm met from 23rd -30th Aug. 1948 developed Four Conventions which were later approved in Geneva on 12th Aug.1949. They are:-

(i). Convention for the Amelioration of the Condition for the Wounded, Sick in Armed Forces in the Field;
(ii). Convention for the Amelioration of the Condition of the wounded, Sick and Ship Wrecked Members of the Armed Forces at Sea;
(iii). Convention Relative to the Treatment of the Prisoners of War;
(iv). Convention Relative to the Protection for Civilian Persons in Time of War.

All these Four Geneva Conventions came into force on 21st Oct.1950. 2 Additional Protocols were also adopted on 8th June, 1997 which are as :-

Protocol I deals with the Prevention of Victims of International Armed Conflicts including specific provisions for Protection of Journalists engaged in dangerous professional mission in Conflict Areas;

Protocol II deals with Protection of Victims of Non-International Armed Conflicts taking place between a Contracting Party's Armed Forces and other Armed Groups in its territory.

See also Dr. H.O. Agarwal, Human Rights, 2005, Central Law Agency, pp.185-191.

39. Hans-Peter Gasser : International Humanitarian Law, A Manual of International Humanitarian Law, Edited by N. Sanajaoba, 2004, Regency Publications, 20/36, G, Old Market, West Patel Nagar, New Delhi - 08, pp.225.

40. Ibid, p.277.

41. N. Sanajaoba, The Basic Law of Armed Conflict, The Sangai Express, 2000.

42. Ibid.

43. Ibid.

44. By ICJ's advisory opinion in the Legality of The Threat or Use of Nuclear Weapons in 1996, the Conventions on International Humanitarian Law was accepted to have acquired status of customary international law. See also Dr. N. Sanajaoba : A Critique of the Armed Forces Special Powers Act, 1958, The Sangai Express, 2000.

45. Ibid.

46. SAHRDC, Alternate Report and Commentary to the UN Human Rights Committee on India's Third Periodic Report under Article 40 of ICCPR, July 1997.

47. N. Sanajaoba, Revisiting Justice Jeevan Reddy Report on Armed Forces Special Powers Act, 1958, Gauhati University, Journal of Law, Vol. VI, 2006, p.16.

48. Times Of India, Pune Edition, 10th Aug.2004.

49. N. Sanajaoba, Revisiting Justice Jeevan Reddy Report on Armed Forces Special Powers Act, 1958, Gauhati University, Journal of Law, Vol. VI, 2006, p.11.

50. Indian Express, Pune Edition, 3rd Aug.2004.

51. Times of India, Pune Edition, 3rd Aug.2004.

52. Indian Express, Pune Edition, 7th Aug. 2004.

53. Wolfgang Friedmann, Legal Theory, 1st Edition, 1999, Universal Law Publishing Co. Pvt. Ltd., pp.120-121.

54. Subash Gatade, Irom Sharmila : "Iron Lady of Manipur - Black Law, Unique Resistance", Mainstream, Oct. 21st 2006, Vol. XLIV, No. 44, New Delhi, p.33.

55. Indian Express, Pune Edition, 8th Aug. 2004.

56. Ibid.

57. Government of India instituted A Committee to Review the Armed Forces Special Powers Act 1958 with Justice Jeevan Reddy as its Chairman. Other members include Dr. S.B. Nakade, Mr. P.P. Srivastav, Lt Gen. (Retd), V.R. Raghavan, Mr. Sanjoy Hajarika. It submitted its report on 6th June, 2006.

58. N. Sanajaoba, Revisiting Justice Jeevan Reddy Report on Armed Forces Special Powers Act, 1958, Gauhati University, Jouranl of Law, Vol. VI, 2006, p.37.

59. Ibid.

60. N. Sanajaoba, Revisiting Justice Jeevan Reddy Report on Armed Forces Special Powers Act, 1958, Gauhati University, Jouranl of Law, Vol. VI, 2006, p.9.

61. N. Sanajaoba, 2002, Human Rights In The New Millennium, Manas Publications, 24, Ansari Road, Darya Ganj, New Delhi, p.176.

62. SAHRDC, A Study In National Security Tyranny, Nov. 26, 1995.

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.