4) armed forces (special powers) act, 1958 - 09.02

A Presentation on Armed Forces (Special Powers) Act, 1958

PRESENTATION BY MAJ. GEN. NILENDRA KUMAR DIRECTOR AMITY LAW SCHOOL, NOIDA ON FEBRUARY, 2012

Is there any alternative to Armed Forces (Special Powers) Act, 1958

India attained its independence essentially by peaceful means and non violence

It propagated Panch Sheel and the doctrine of peaceful co-existence.

The Indian Constitution is basically federal in Form

However, the same did not eliminate unrest, hatred violence and threat to the sovereignty of the country.

RELEVANT CONSTITUTIONAL PROVISIONS

However, not to be forgotten

Article 52 - There shall be a President of India. 53(2) – The Supreme Command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.

EMERGENCY PROVISIONS Article 355. Duty of the Union. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.

Article 352 relates to the power of the President to make a proclamation of emergency if he is satisfied that the security of India is threatened by war or external aggression.

SUBJECT MATTER OF LAWS MADE BY PARLIAMENT AND BY THE STATE LEGISLATURES

Authority over use of the armed forces

DIVISION OF RESPONSIBILITY Seventh Schedule List 1– Union List 1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation. 2. Naval, military and air forces, any other armed forces of the Union.

2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.

List II – State List 1. Public order (but not including [the use of any naval, military or air force or any other armed force of the Union or of any contingent or unit thereof] in aid of the civil power).

2. Police (including railway and village police) subject to the provision of Entry 2-A of List I.

Thus it would be significant to note the duty of the Union in the matters of national security and the clear cut demarcation in the powers of the Parliament and State Legislatures in this regard.

Having regard to the pluralistic nature of Indian polity; multiplicity of religions & languages, ethnic divisions and lack of accommodation in political thoughts, economic disparities and geographical imbalances may at times give rise to unresolved aspirations. Further, the State may fail to bring about peaceful and orderly settlement amongst the society.

A failure of the State administration to maintain law and order may develop into a situation, being ‘disturbed’ and ‘dangerous’, where the police and other agencies available are not able to control the extraordinary situation.

The ultimate force available with the Union is its armed force. Hence, deployment of the armed forces of the Union is the final choice.

LEGAL DIFFICULTIES 1. The armed forces personnel have no statutory authority to be deployed or to act within the country against own citizens. 2. A State Government has no authority to directly summon and deploy the military which is under the executive domain of the Union.

3. Military personnel need to be suitably protected for actions taken by them in discharge of official duties.

Hence, the need for the AFSPA

Main purpose of AFSPA 1. Declaration about disturbed and dangerous situation when, by whom and how. 2. Powers to NCOs and above. 3. Duty of the Armed Forces. 4. Protection given to them.

SECTION 3 Powers to declare areas to be disturbed areas – If, in relation to any state or Union Territory to which this act extends, the Governor of that State or the administrator of that Union Territory or the Central Government, in either case, if of the opinion that the whole or any part of such State of Union territory, as the case may be, is in such a disturbed or dangerous condition that

the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be , may by notification in the Official Gazette,declare the whole or such part of such State or Union territory to be a disturbed area.

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 move 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 offence;

(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 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.

SECTION 5 Arrested persons to be made over to the police –Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

SECTION 6 Protection to persons acting under Act – No prosecution, suit or other 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.

Test of validity of AFSPA

Naga People’s Movement of Human Rights V Union of India; AIR 1998 SC 431

DECISION

1. Act is not a colourable legislation or fraud on the Constitution. 2. Powers under Sections 4 and 5 are not arbitrary and unreasonable.

CRITICISM 1. Retained for decades 2. Draconian powers to military. Use of force to the extent causing of death. 3. HR violations. 4. Sanctions for prosecution not given.

RESTRICTIONS BY SUPREME COURT

1. Periodic review. Not to operate beyond six months. 2. Orders of Central Government to grant or withhold sanction to prosecute are subject to judicial review. 3. Do’s and Don’ts to be strictly followed. 4. Compensatory Justice – compensation to the victim.

Operations by the Troops facilitated 1. Retention of weapons and explosives captured. 2. Interrogation allowed.

Prime Minister’s assurance in December 2006 about changes in the Act.

He promised a relook at the Act to see if it needed to be retained if it could be turned more humane.

Justice Jeevan Reddy Committee Report

Its report and recommendations are yet to be made public.

Act has remained in the Statute Book for last five decades. Both during Congress and non Congress Governments.

There is no option but to retain the AFSPA

A way forward is to humanise AFSPA by framing of Rules and executive steps.

EXECUTIVE MEASURES

HOW TO HUMANISE Use the tool of court of inquiry for prompt and transparent investigations 1. Obligatory to convene inquiry in all cases of civil deaths, grievous injury or allegations sexual harassment etc. Do so within 72 hours. 2. Co-opt a civil official. 3. Woman officer to be a member/in attendance. 4. Venue to be easily accessible to local public.

Video tape all military missions to achieve greater transparency and accountability.

Incentives/awards for capturing militants alive. Hopefully, this may cut down number of those killed.

ALLEGATIONS OF FALSE ENCOUNTERS AND FORCED DISAPPEARANCE Allow local NGOs to lodge complaints

A civil magistrate to accompany each contingent of Army. If not feasible, record reasons. This would bring in transparency and independent check

Decision to accord or deny sanction in three months.

PROTECTION OF HUMAN RIGHTS ACT NHRC may be allowed to refer and seek reports.

All complaints against Army personnel pending in police stations should be thoroughly probed in a time bound manner.

Due publicity of cases where disciplinary actions have been taken against military personnel for human rights personnel.

Frame clear guidelines to lay down policy about according/denial of sanction for prosecution under Section 6.

AFSPA has no provisions relating to rule making powers.

Recommended Framing of Rules

RULES TO LAY DOWN 1. Definition of armed forces. 2. Difference between ‘disturbed’ and ‘dangerous’ situations. 3. Threshold level for above. 4. Warning before opening fire – Language, duration, means and caution. 5. Recording of the opinion of the officer of the designated category.

NEED OF THE HOUR Urgent discussion on steps to change working of AFSPA would be a pragmatic move in resolving an issue of major national concern.

THANKS