Anti-terrorist action is not conducted exclusively by the armed forces but also by the police, who are also protected from vexatious litigation by regular law.
The Supreme Court judgment delivered on July 9 on the Armed Forces (Special Powers Act), 1958, or AFSPA, is the strongest admonition on the way it has been administered by the authorities, but it did not invalidate the law. Unfortunately, not many understand this.
No other law enacted after independence has been as controversial as AFSPA and this is partly due to how notifications under Section 3 of the Act are casually issued each time. The renewal of the “disturbed area” notification for the entire state of Nagaland is the most recent example. It is routinely extended from time to time. Section 3 is also used as a political football. For instance, on April 10, 2015, Nabam Tuki, chief minister of the then Congress-ruled Arunachal Pradesh, complained that he had not been consulted when the home ministry decided to extend AFSPA to a much larger area of the state.
AFSPA has also courted controversy for the manner in which the government appears to shield even those who have allegedly committed excesses, as in the Pathribal case of 2000. In 2012, two government organs clashed in the Supreme Court over whether the deaths in Pathribal was due to a fake encounter; the CBI felt that it was a “cold blooded murder” while the defence ministry felt otherwise. Finally, the apex court gave the army the discretion to choose between a court martial and a criminal trial for the accused officers, with the army choosing to go with a court martial, in which all five officers were exonerated for ‘want of evidence’.
AFSPA was first enacted as the Assam and Manipur Special Powers Act in 1958. It was amended in 1972 and 1987, and applied to all the North East states. It was later made applicable to Jammu & Kashmir in 1990. The law in the North East, meant to have been a temporary measure, has been in existence for 58 years despite the claims of normalcy in the region by all political parties. Yet most chief ministers want to retain AFSPA. The BJP government in Assam now says that the only problem the state faces is ‘illegal immigration’. The question is, do we need the armed forces in a democracy to stem the tide of migrants?
Contravening global conventions
Some state politicians complain that AFSPA allows greater central intervention, in violation of Schedule 7 of the constitution, while human rights activists say it gives unfettered power to the central government and state police, which is not allowed under normal laws. The law contravenes several international human rights conventions, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under Any Form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. Can we afford to have this law when we are aspiring to be at the UN Security Council high table?
The law is clear that it applies only to the “armed forces” and not to the police or special police. Section 2(a) of the Act defines “armed forces” as “the military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating”. Yet there is a mistaken impression that even the armed police is “protected” as long as the area-specific notification is issued. For instance, it seems to apply to Assam Rifles, which, for all practical purposes, is working as civil police under the union home ministry. In August 2015, while the Supreme Court was hearing a petition on the killing of a 12-year-old boy in Phobakcao near Imphal in 2009 in a joint operation by the Assam Rifles and Manipur police commandos, activists complained that over 1,500 persons were killed in Manipur alone over three decades.
Is there really a need for a special law?
A comparison with the Code of Criminal Procedure, 1973 (CrPC), applicable to civil police and paramilitary forces, would reveal that the AFSPA has enlarged powers. But anti-terrorist action in the “disturbed areas” is not conducted exclusively by the armed forces but also by state or central police forces, who are protected from vexatious litigation by the regular law. This begs the question – do we really need a special law?
According to Section 6 of the AFSPA, “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”.
Section 45 of the CrPC says the same thing: “Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government”.
This is further reiterated by Section 132 of the Act, according to which “no prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any criminal court except – with the sanction of the central government where such person is an officer or member of the armed forces”. Human rights activists complain that the defence ministry never gives consent.
An additional problem is how much force should be used. The CrPC says that force can be used “but in so doing he [the officer] shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly”. On the other hand, AFSPA allows soldiers to “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”. It also permits the armed forces to “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”
Another big difference is the production of an arrested person before a magistrate, which is the origin of most complaints. According to the CrPC, an arrested person to be produced within 24 hours of arrest. However, the AFSPA permits a longer delay if the situation warrants so. Section 5 of the Act says the arrested person should be “made over to the officer-in charge of the nearest police station with the least possible delay”. Several cases have been quoted in which the army failed to produce the arrested persons for several days, sometimes even months, taking advantage of the “least possible delay” clause. In one instance, the person presented before the magistrate had been five years before. There is zero transparency in this procedure and it should be amended keeping in mind human rights angle.
Why the army is different
However, the real worry of the armed forces in seeking special protection is quite different. They are not just worried about vexatious prosecution. There is a morale angle that we must appreciate. The armed forces are called out only as a last resort when the civil machinery, including the use of paramilitary forces, fails. This is the final punch to save our society from regional violence caused by home grown insurgents or ignited from abroad. If this fails, our democracy fails, and India could become a ‘failed state,’ giving birth to ‘war-lordism’. Besides, the armed forces are expected to conduct their operations with anonymity, such that the names of their officers are not divulged. The army, unlike the police, operates as a group in sections or platoons. Their anonymity will be compromised if they are dragged to the courts several years later for their alleged excesses and pulled out from far away places where they may be posted. This will also affect their morale in risky operations if they have to look over their shoulders for fear of future prosecutions. After all, morale is the bedrock of the armed forces.
In my estimation, we do need the AFSPA or a similar law that gives elevated protection to the armed forces. However, there should be a stipulation that in cases of excesses, the competent authority should hold immediate enquiries. The armed forces should also not be allowed to hold any person in custody beyond a specific period. In addition, the current practice of an entire state being covered by the AFSPA must be done away with, limiting its application to only the necessary parts of a state, as recommended by former Home Minister P. Chidambaram and the Punchhi Commission, which proposed “localised emergency provisions”.
Vappala Balachandran is a former special secretary, Cabinet Secretariat and author of National Security and Intelligence Management – A New Paradigm.