A Closer Look at AFSPA, Part – I Of 2

995

by RS Jassal

AFSPA is a law, enacted by the Parliament of India, to meet violent internal situations created by underground militant outfits to further their illegal and unconstitutional causes. The law was enacted to provide necessary powers and legal support to the Armed forces for carrying out proactive operations against the militants in a highly hostile environment. In recent times, it has become an object of controversy and a topic of divisive domestic debate, both in print and electronic media.

The current situation in Manipur is a complex amalgam of factors. Over the years, the nature of insurgency has shifted to acts of terrorism, extortion, coercion of the population giving rise to a situation of internal disorder. In the last two decades the numbers of militant groups, their arsenals and lethality of weapons have grown immensely. The situation cannot be managed by the State law and order machinery as at present. The Army and other Central forces will therefore, have to play a major role in the security management of Manipur, till the political process and socio-economic measures begin to take effect and the environment in the State is brought under control.

Possession of sophisticated weapons, modern communication equipment, moral and financial support from across the borders, presence of women cadres and safe sanctuaries across the areas close to the International Borders has made CI ops very complex.

The troops have to operate in a hostile terrain and population environment exposing themselves to grave dangers demanding very high degree of operational effectiveness. At the same time the Armed Forces are required to be extremely cautious in avoiding any collateral damage and loss of innocent life and public/private property. Thus the Armed Forces are under pressure and have to ensure extreme caution in conduct of operations. Any violation or perceived violation attracts media attention and exploitation by vested interests. On most occasions the allegations are false and fabricated. Operating in such environment requires special laws which offer similar power to the Armed forces like the Cr P C does to the State Police forces.

Legal aspects of AFSPA. The essence of the important Sections of AFSPA is as under:-
It lays down the authority which has power to declare areas to be disturbed. These authorities are the Central Govt and the State Govts.

It gives the Army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ ammunition dumps, fortifications, shelters/ hideouts and to stop search and seize any vehicles.
It stipulates that arrested persons and seized property is to be made over to the police with least possible delay.
It offers protection to pers acting in good faith in their officialcapacity. Prosecution is permitted only after sanction of the Central Govt.

The AFSPA in general and of Sections 3, 4 and 6 in particular, came up for scrutiny before a Constitution Bench of the Apex Court in a case titled ‘Naga People’s Movement of Human Rights Vs UOI’. The five judges Constitution Bench elaborately dealt with the challenge to the legality of deployment of the Armed Forces in aid to civil power. The Court unambiguously ruled that AFSPA cannot be regarded as a colourable legislation or a fraud on the constitution. The Apex Court considered and opined that the conferring of powers vide Sec 4 of AFSPA could not be held arbitrary or violative of Art 14, 19 or 21 of the constitution. In fact having considered the role and circumstances under which the Armed forces have to operate, the Hon’ble Court extended the scope of powers vested vide 4 and 6 of AFSPA so as to include by implication, the power to interrogate the person arrested. It also allowed the Armed Forces to retain the weapons seized during the operations in their own custody rather than to hand over to police authorities.

The fact that the provisions of AFSPA have to be invoked with regard to a particular area establishes that the law and order situation in the said area had degenerated to such an extent that the State Govt was unable to maintain peace and tranquility.

A natural corollary to the above would be that if the Armed forces, who are called upon to assist the State administration in restoring normalcy, have to succeed in their task, they enjoy similar powers as the Police force, if not wider ones. A perusal of the various provisions available to the Police authorities under the Cr PC vis-à-vis those available to Armed Forces under AFSPA would reveal that the police authorities enjoy more and wider powers relating to arrest, search, seizure, summoning of witnesses, preventive detention etc than the powers enjoyed by the Armed Forces. The powers of investigation, in any case, is within the exclusive jurisdiction of the police only.

Safeguarding Human Rights. One of the most important tasks in promoting human progress is to maintain a proper balance between the interest of the individual and those of the democratic society. Individual freedom has to be balanced with the freedom of other individuals and with reasonable demands of the community/ general public. It is the duty of the State to harmonize the rights of the individual on one hand and with the requirement of the community on the other. The Central Govt vide Art 355 of the Constitution of India is duty bound to protect every State not only against the external aggression but also internal disturbances and to ensure that the governance of every State is carried out in accordance with the provisions of the constitution of India.

It is also an established fact that the judiciary is the custodian of the Constitution. An independent judicial system performs better than any other agency to maintain perfect equilibrium between the liberty of the individual and the powers of the State. In this light, it is emphasized that the Hon’ble Supreme Court of India has upheld the constitutional validity of the Armed Forces (Special Powers, Act). The court further observed that the instructions issued by the military authorities in the form of ‘DO’s and DON’Ts’ while acting under the AFSPA are to be treated as binding instructions which are required to be followed by the members of the Armed Forces.

Recently, it has also been observed, some section of the print media reporting that the Indian military do not have a counter insurgency doctrine. It is for information that guidelines to operate in counter insurgency/ terrorist operations have been issued in the form of ‘DOs and DON’Ts’ to all units, as part of Indian Army’s “Doctrine for Sub Conventional Operations”.
The Army’s counter-insurgency doctrine rightly identifies the military’s role as “creating conditions that are conducive to the attainment of political objectives”.

Safe Guards. Adequate checks and safeguards are built in the AFSPA to prevent the Armed Forces from assuming sweeping powers. Violations of its provisions are liable for legal action/ prosecution. The DO’s and DON’Ts issued to the units having found approval of the Apex Court have acquired legal status, are binding on the troops which are restraining factors to ensure the guidelines are taken very seriously and prompt disciplinary action is taken against the defaulters under Army Act 1950. It is reiterated that the Armed Forces of the Union deployed in aid to the Civil Powers have to operate in the State concerned in co-operation with the Civil Administration to deal with the

Situation affecting maintenance of public order which has necessitated the deployment of Armed Forces so that normalcy is restored. Thus the governance of the State remains in the hands of civil administration and not taken over by the Armed Forces, as is wrongly perceived by many people. From bare reading of the act, the misconceptions that security forces enjoy vast powers are laid to rest as power to investigate the offences remains reserved with the police alone.

Section 7 of the Act provides legal protection to only those persons who act in good faith in discharge of official order and not otherwise. Acting in good faith would mean to act without any malice in the discharge of the official duties, i.e. exercising due care and caution. The protection under Section 7 would not be available to a member of the security forces, who commit acts which constitute criminal offences not in the discharge of his official duties even in the area which has been declared as disturbed.

HR Allegations. Approx 1500 FIRs concerning Human Rights allegations have been filed against the Army and Assam Rifles in last 20 years. Details are as under:-

Allegations received-1511, cases investigated-1508, cases under investigation-03, cases found false/baseless 1473(97%), cases found true -35 (2.32%), personnel punished-104 (Offr-39, JCO-09 & OR-56).

It is also pertinent to mention that the Army has Human Rights cell at all major Headquarters to ensure speedy disposal of alleged Human Rights violation cases.

1 COMMENT

  1. You are arguing for the failed policy of successive governments because no one in cabinet has the authority to repeal the law, the Army oppose it and India is not strong enough a democracy to silence its generals, and the opposition BJP are predatory opportunists who will seize upon any change as a sign of weakness.

    25000 people have been killed in Manipur in the past twenty-five years with AF(SP)A granting absolute immunity from even investigation. If you are any one of those 25000 citizens that’s a hundred per cent statistic for you. It’s a hundred percent for your family. Do you really want to play statistics. The game would sicken me.

    If this law was so necessary to protect Indian Citizenry then bring it to Delhi or Mumbai. Don’t the special forces need some protection when they gun down the next foreign based terrorist attack against Indian Cities. Doesn’t each minister keep with him a team of black balaclava clad special forces but they don’t have any special powers to shoot down assassins. Are they just for show? Indian Military in mainland India certainly don’t need the immunity of AF(SP)A to protect Indian Citizens from what the Prime Minister described as the greatest threat to Indian Security the Naxalites. They tend to pick someone up shoot them and then dump the body later claiming it was an encounter. Why can’t you boys just do that in Manipur. Why do you need more fig leaves.

    The problem I have with you Jassal may I call you that this is not personal I am sure you are a decent and well brought up official did you make the IAS. I am sure your mother must be very proud of you I do not mock. My problem the woman I love can’t ignore the call of justice and has principles and will give up her life for those principles. You see the problem I have.

    Irom Sharmila has been imprisoned without trial for ten years now force fed by naso-gastric intubation. I know the supreme court of India has ruled there is nothing wrong with imprisoning a woman for non-violent non-cooperation and never bringing her to trial. But even the British had to free Aurobindo when they couldn’t secure a conviction in one of their courts with one of their judges presiding. You sound like a clever man. Don’t you think that there something odd going on here.

    25,000 citizens dead in 25 years without the right to have allegations investigated by the police and brought to trial. Given that we pay soldiers to kill people 25000 in 25 years might be a good target. Why argue that the gang rape and murder of women is ok so long as it is limited to the women of the north east. You must be expecting some rational outraged response. In your position if we all kept silent well I’d be ashamed of the lack of response.

    AF(SPA) is only constitutional just and necessary when applied to the nu-colonies of India the seven lost sisters and Jaummu & Kashmir. The British did not countenance such a draconian law when they ruled Manipur even with the Japanese army pressing them from Burma. A soldier of the rank of Captain or above had to sign his name to what could become war crimes. A trained officer took responsibility for his actions.

    And although the British did allow the purchasing of commissions and the system brought fine officers to its army, technically to buy the job of police commando or SI of police (last time I checked it was 1.5 million rupees for the latter) is contrary to the Indian Penal code. But if that is how you recruit police officers then how do you expect them to recoup their investment.

    I feel sorry for you. You have been given a dirty job that nobody else wants to defend the indefensible. Do you really think the world will remain silent and let your vile hypocrisy go unchallenged. I am a British Citizen. I haven’t been taught to fear officials it may take more time than I have to learn how. Perhaps rather than carry on with part two feed back to the bosses that maybe silence and avoidance is better than trying to justify the unjustifiable.

    I note the Government of India made a clumsy threat against the life of my fiancee Irom Sharmila 22 September The Hindu claiming that she was under imminent threat of death due to complications with her force feeding. Did you have a chance to investigate that clumsy threat or will it mess up your statistics.

    For the last time Sir, every time a politician responds to public outrage and sets up a judicial commission to look into AF(SP)A each one has ruled that it should be repealed. The Jeevan Reddy Commission was the first. Justice Jeevan Reddy will attend the Just Peace Foundation celebration of Irom Sharmila’s life time just struggle against the cowards and bullies who have made worse tyrants than the British. Ask him what he thinks of AF(SP)A. The Law Minister Shri Moilly he chaired the Second Administrative Reforms Committee Report which also asked for repeal of AF(SP)A. The Manipur Human Rights Commission in March asked for its repeal they are there set up by the Government to monitor its adherence to the principles of Human Rights of the Hague and Geneva conventions. The United Nations High Commissioner for Human Rights has repeatedly advised India it is in breach of its treaty obligations to its own citizens, as have many European Parliamentarians. The former Chief Justice of India chairs the National Human Rights Commission.

    I don’t need a gun. I am not afraid. Neither is Sharmila. I know bad things happen but I don’t think the GoI solution has worked very well over the past fifty years and so I am suggesting you give peace a chance.

    Desmond M Coutinho
    SEERI
    29 Baker Hill
    Kottayam
    Kerala 686001

    I have been seeking the right to visit my fiancee Irom Sharmila since June but clearly the common human decency that once was associated with India does not apply to the seven lost sisters. I continue to appeal to anyone who will listen. Once we have achieved that minimal basic standard of decency we will press on for others until ordinary Manipuris can expect not to be murdered and raped but if that were to happen regardless of who did it that it would be a crime that could be investigated and the perpetrators brought to justice.

    After that I was thinking maybe the right to jobs and education. But some people call that fairy tale miracles here so one step at a time. But I hope I haven’t upset your rhythm you were about to say how people who fight for human rights are evil monstrosities who hate India. Please continue I won’t respond over it I am sure it will be self-satyrizing. And part of me thinks you are clever enough to make the government sound stupid reactionary and evil while only pretending to justify AF(SP)A for them

    Jai Ho Jai Hind Jai Irom Sharmila Chanu

LEAVE A REPLY

Please enter your comment!
Please enter your name here