Two incidents, the violence in Kashmir and security forces action to contain it, and the Supreme Court’s Judgment on the Armed Forces Special Powers Act (AFSPA) in Manipur delivered on 8th July has drawn my attention recently and has made me throw some light on the enactment of AFSPA.
The Armed Forces Special Powers (Assam and Manipur) Act, 1958 (AFSPA) is an Act applicable to Bharat’s seven states of northeast, to send the Army to a disturbed area “in aid of the civil power”, empowering it to destroy arms-weapons, arrest, enter and search without warrant on reasonable suspicion, maintain public order and “use force even to the causing of death”.
A similar Act passed for Chandigarh and Punjab in the Year 1984 is withdrawn and the Act passed for Kashmir in the Year 1990 is in force till today.
The State governments are empowered to declare a state of emergency in case of failure of the administration and the local police to tackle the local issues or if the unrest or instability in the state is too large for local forces to handle. Even whenever local police are too stretched in handling few tasks, the Central Government deploys the CRPF and BSF.
But such is not the case where Army is deployed in the area under AFSPA, but it is enacted only when a state, or part of it, is declared a ‘disturbed area’. The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowers only the Governor of the State (or the Administrator of the Union Territory) to declare the concerned area as ‘disturbed’. The scope of declaring a State as ‘disturbed’ is extended to the Central Government. The Armed forces have following Powers in a disturbed area –
- Fire or force even if it causes death, against the person acting against law or order in the disturbed area for the maintenance of public order.
- Destroy any arms or training camps from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offense.
- To arrest without a warrant anyone who has committed cognizable offenses or is reasonably suspected of having done so and may use force if needed for the arrest.
- To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.
- Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.
- Any person arrested and taken into custody under this Act shall be made present over to the officer in charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.
- Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government’s judgment on why an area is found to be disturbed subject to judicial review.
- Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers is conferred by this Act.
The Armed forces are not acquainted with the civil formalities of arrest. Moreover, they have been given the above said powers. And here the clashes between the civilians and the forces begin, which ultimately give rise to many protestors against this Act and human rights activists like Ram Jethmalani with a demand to repeal the Act, as it violates human rights.
On this background, we have to perceive the Judgment given by Hon’ble Justice Madan B. Lokur in the writ petition filed by the next of kin of victims of 1528 ‘extra judicial’ killings, i.e. killings allegedly done without FIR or due procedure of law in Manipur. However details of only 62 cases have been given in the said writ petition, out of which only 10 cases have been more elaborately written.
It is pertinent to note that, this is the interim order passed by the Hon’ble Court, and not the final Judgment. The Hon. Court has admitted the petition. The Supreme Court in its 85 pages Order has considered the “do’s and don’ts” instructions and ten commandments for the Army. The Court has also considered, that the person carrying a weapon may not necessarily be an enemy within the meaning of Army Act. The Court has also discussed the War and war-like situations and has stated that the Court follows and reiterates the views expressed by Constitution Benches of the Supreme Court in earlier cases. Supreme Court observed that –
- The use of ‘excessive’ force or ‘retaliatory’ force by the Manipur Police or the armed forces of the Union is not permissible.
- Police or the armed forces in Manipur must be thoroughly inquired into and in the event of an offense having been committed by any person of Manipur Police or the armed forces through the use of excessive force or retaliatory force, resulting in the death of any person, the proceedings in respect thereof can be instituted in a criminal court, subject to the appropriate procedure being followed.
- Further the inquiry has been directed by the Hon. Court, as there is lack of correct and detailed information by the petitioners of their alleged extra judicial killings and has asked for the detailed report (regarding the FIRs etc.) by the next of kin of victims.
- It can be seen from the judgment that the Hon’ble Supreme Court has proposed to consider whether the guidelines prescribed by National Human Rights Commission (NHRC) are binding or only advisory.
- The Issue of Court Martial Proceedings against the Army Officials, who allegedly have done extra judicial killings, is kept open till the detailed inquiry report of all the cases is complete.
As a layman, it is important to note that the Hon. Court has issued its interim order in the matter and has just admitted the petition. The Hon’ble Court is yet open to the views filed through Affidavits by Union of Bharat and State of Manipur while delivering the final judgment. These Affidavits briefly state that –
- There is a problem of insurgency in Manipur. It is stated that Manipur has an international border of over 360 kms with Myanmar. About 30 extremist organizations operate in Manipur and all of them are very powerful and heavily armed with sophisticated weapons, including rocket launchers. Their aim and object is to form an independent Manipur by its secession from Bharat. They have been indulging in violent activities including killing of civilians and security forces and law abiding citizens of Manipur to achieve their objective. The ordinary criminal laws are insufficient to deal with insurgency problems which have warranted enforcement of the AFSPA.
- More than 1000 police and security forces have been killed or injured from 2010 to 2012 by militants in Manipur.
- Militants burn the Constitution or flags of Bharat.
- There is a large number of underground groups who propagate freedom, independence and sovereignty of the State with the help of terrorists from neighboring countries.
- The Constitution casts a duty on the Union to protect every State against external aggression and internal disturbances.
- There is a provision in the Constitution (the Union List) relating to the deployment of armed forces of the Union in any State in aid of the civil power.
- Reference is also made to Sections 129 to 132 of the Cr. P.C. relating to the “Maintenance of Public Order and Tranquility”. These sections allow the use of force, including by the armed forces, to disperse an unlawful assembly and in extreme situations. Use of such force may even lead to death of a person while dispersing such an unlawful assembly.
- The affidavit also refers to Chapter 4 of the Indian Penal Code, particularly Sections 99 to 106, which deal with the right of private defense.
- It is submitted that, when personnel from the police or armed forces are attacked with firearms etc. by insurgents or other criminals, uniformed personnel have the right to exercise their right of private defense which may extend to causing the death of such an insurgent or criminal.
It is necessary to state that, the Court here concluded that, in the event of a war, external aggression or an armed rebellion that threatens the security of the country, it is the duty of the Union Government to protect the States, and an emergency can be proclaimed in such situations. However while protecting the ‘disturbed’ States, the armed forces of the Union may be deployed “in aid of the civil power” for the maintenance of public order. The Court distinguished between an external aggression or an armed rebellion from an internal disturbance, and Manipur has been declared as ‘the disturbed area’, and the situation there is not like an armed rebellion or warlike.
The Court analyzed the word ‘war’, wherein it has been held that in the word ‘war’, the animus of the party is important, the use of force or arms is necessary, the number of members in the party is not relevant and even a few can cause devastation. Still the Court held that, every act of violence, even though against Police or Armed Forces, does not necessarily mean war.
In such circumstances, on observation of recent violence in Kashmir and the clear instances of the aid the insurgents are receiving from Pakistan, in coming years, it is going to be very challenging and crucial for the Courts to judge the war/warlike situation and ‘internal disturbed area’.
By – Vibhawari Bidve (Lawyer, ILS Pune Alumnus, Writer; email id: [email protected])
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