Law

Flashback: What the Constituent Assembly Debates Tell us About AFSPA’s Problems

The draconian law is almost as old as independent India and the criticisms being made of it today were anticipated by many of the country’s first legislators.

The first day of the Constituent Assembly of India. Credit: Wikimedia Commons

The first day of the Constituent Assembly of India. Credit: Wikimedia Commons

At a time when demands are being raised from across the country to repeal the Armed Forces (Special Powers) Act (AFSPA), The Wire takes a look at how the issue was first debated in the Constituent Assembly of India and the circumstances that led to the controversial law’s adoption.

The information has been obtained from parliament’s library by Venkatesh Nayak, coordinator of the Access to Information Programme of the Commonwealth Human Rights Initiative. Nayak said: “The purpose of placing these debates in the public domain is to enable people to debate the issue in an informed manner with knowledge of the concerns of lawmakers in the past.”


The Supreme Court in July dealt a potentially heavy blow to the immunity enjoyed by security personnel under AFSPA, when it held that “there is no concept of absolute immunity from trial by a criminal court” if a soldier or army officer has committed an offence. It also held that there was a need to enquire into every death caused by the armed forces in a disturbed area, irrespective of whether the victim is a dreaded criminal, or a militant, or a terrorist, or an insurgent.

More recently on September 7, the National Human Rights Commission also expressed its exasperation before the Supreme Court over the armed forces taking protection under the Act. In his submission, senior advocate and NHRC counsel Gopal Subramanium noted how the security forces resort to AFSPA when faced with a human rights complaint. “In Manipur, it took three years to get information regarding a case of alleged human rights violation. The NHRC is a responsible fact-finding body. No government can say it is not accountable for the violation of human rights,” Subramanium had stated.

Tracing the legislative history of the law

From parliament’s archives, Nayak obtained a scanned copy of the debate on AFSPA, 1948, which was held in the constituent assembly in 1947. He also obtained the Disturbed Areas AFSP Ordinances of Bengal, East Punjab and Delhi and the North-West Frontier Province (NWFP). Of these the ordinances, Bengal and NWFP had not empowered the armed forces to use force to the extent of causing death. That power was granted only in the East Punjab and Delhi ordinances. All these ordinances were replaced by the AFSPA Act of 1948, which empowered the armed forces to shoot and kill if necessary. Later on, the AFSPA of 1958 was enacted.

The Armed Forces (Special Powers) Bill was introduced in first session of the constituent assembly of India by the first defence minister, Sardar Baldev Singh. It was debated in the house in December 1947.

Objectives and reasons

Singh’s reasons for introducing the Bill were that “in the beginning of this year when communal riots broke out in Punjab on an unprecedented scale, the administration of that part of the country completely broke down. The police there failed to perform its duties and in some cases they even refused to work. Another factor which must be borne in mind is that in that part of the country the police was 90% of one community. The communal riots took a very ugly shape and the provincial government requested the government for military help. We sent a large number of troops, but the presence of troops there did not improve the situation much. It was not on account of the inadequacy of the troops, but because the troops were spread over the whole of that part of the country and under the laws then prevailing they were not in a position to take any action.”

He noted that, “representations were made to the government of India by several people, by the Section 98 administration of the Punjab province and also by public men, that additional powers should be given to the armed forces”. He told the house: “In deference to the wishes of the local administration and other bodies, an ordinance was promulgated which is before the house. This ordinance, sir, expires early in January or sometime in the middle of February and if we do not pass this Bill, the ordinance will lapse and the armed forces will find themselves in a difficult position. It is for this reasons that this Bill is placed before the house so that we do not have to resort to an ordinance again.”

“The provisions of the Bill,” Singh admitted, “may look drastic, but I wish to point out that up till now, they have worked without any hardship to anybody. The powers cannot be used unilaterally by the armed forces. Firstly, the provincial government has to declare an area as a disturbed area; and secondly, the provisions of the Bill are only for a year. If at the end of this year, we consider that it is necessary to extend the provisions of the Bill for another period of one year, only then will the Bill be so extended.”

The need for covering more areas

On how and why the Bill sought to cover more areas, Singh said:

“Up to now this ordinance was in force in the Punjab and later on, when the communal situation in others parts of the country deteriorated the governments of UP, Bengal and Assam asked the government of India to extend the provisions of this ordinance to those parts of the country also.

“So, at present the position is that this ordinance is in force in four provinces of India. Under this Bill we will be taking power which will apply to the whole of India, but it will be open to the provincial governments to enforce this Bill in any way they like. They have complete power, first to declare an area as a disturbed area and only then will the provisions of this Bill come into operation.

“That in short is the history of this Bill and the provisions that are contained in the Bill seem to be rather drastic; but I assure the house that after the experience we have up till now, we are convinced that the powers have not been unnecessarily used and there have been no complaints from any of the provinces. I hope the house will be convinced, if amendments are moved, that these powers will be used in the right way and there will be no complaint about it.”

AFSPA was originally mooted for one year only

Ironically, AFSPA is almost as old as independent India. It has been repeatedly modified and extended though it was originally meant to be in force for only a year. As Singh had told the house, “We have no intention at all to extend the period beyond one year. Some honourable members may have a feeling that perhaps we will go on extending it beyond one year or even later. I can assure the house that we have absolutely no such desire and it will be extended only if the communal situation does not improve.” 

Maharaja Hari Singh of Kashmir, who signed the Instrument of Accession that made Kashmir a part of India. Kashmir has been under AFSPA for several years. Credit: Wikimedia Commons.

Maharaja Hari Singh of Kashmir, who signed the Instrument of Accession that made Kashmir a part of India. Kashmir has been under AFSPA for several years. Credit: Wikimedia Commons.

Strong opposition

During the discussion of the Bill, Pandit Thakurdas Bhargava of East Punjab had pointed out that “either the civil authorities can function or they cannot function. If they cannot function, it is a case of giving over the command to the military authorities”.

He also spoke about a contingency: “Suppose the magistrate or civil authorities call the aid of the military and the question arises about quelling the disturbance or the riot, would the provision of this Act apply or the provisions of the Criminal Procedure Code?”

Providing the answer to the same, he said, “According to the provisions of this Act, irrespective of whether the magistrate is there or not, the military have the last say and they can shoot and kill any one they please.”

‘Misconceived and mischievous’

Bhargava had also made a strong case against the law, saying, “now let us see to what cases and contingencies this Bill shall apply and I wish to read to you the first section which shall show how misconceived and mischievous this Bill is.”

He went on to add that the Bill provides that:

Any commissioned officer, warrant officer or non-commissioned officer of His Majesty’s military or air forces may, in any area in respect to which a proclamation under sub-section (1) of section 15 of the Police Act, 1861, is for the time being in force, which is for the time being by any form of words declared the provincial government under any other law to be a disturbed or dangerous area – if in his opinion it is necessary to do so for the maintenance of public order, after giving such warning, if any, 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 said area, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons.

On a reading of this, Bhargava said “the first point is that any commissioner officer need not give any warning at all, because the words are “after giving such warning, if any…”. According to the provisions of the Criminal Procedure Code “the magistrate has to give warning, the police officer has to give warning; every person who disperses an unlawful assembly has to give a warning.”

Pandit Thakur Das Bhargava. Credit: policypulse.com

Pandit Thakur Das Bhargava. Credit: policypulse.com

But according to these provisions, he cautioned, “it will be the right of this commissioned officer to shoot or kill people in any manner he likes.”

Bhargava had also argued that the definition of what constituted an “assembly” of people was also vague. “In Gurgaon sometime back, there was a riot and it was a fairly serious riot. After three or four days, I went to Gurgaon because I received a wire from a lawyer friend of mine. The authorities had taken upon themselves to arrest hundreds of persons. Many of them were lawyers. I called some lawyers to know from them what the matter was but they could not come to my place because they said that five persons could not assemble. …….. if such an ordinance is made, I think a commissioned officer will be within his right to go into a person’s house and shoot the people there.”

The member from East Punjab said that the words “who is acting in contravention of any law” were also too vague and “any innocent person can come within the clutches of law”. He explained that under the provisions, if “one or two persons are engaged in the act of looting – they cannot be fired at …. but if they are acting in such a manner that they make an assembly of five or more persons, however lawful, then they can be fired at.” 

Bhargava had further stated that “if a person was committing murder, arson or loot and then he got fired at, I could understand it. But to define the occasion in such a vague manner that any innocent person could be fired at, by the sweet will of a commissioned officer, is too much.”

He also referred to the anomalies in clause (b), which spoke about the powers to “arrest without warrant any person who has committed a cognisable offence, or against whom a reasonable suspicion exists that he has committed, or is about to commit a cognisable offence”, saying the armed forces of a country usually have the same character as the people of that country.

“If the police are bad, then I cannot say that our troops will be found to possess much higher character. According to the admission of the honourable mover, the police is corrupt and police rule has failed and therefore the military is called in. What happened during the disturbances in Punjab? When the Muslim police failed, the Baluchis came in and did things which the police could not do. So far as these powers are concerned I am of the opinion that if these powers can be abused by the police, they can be abused much more by the armed forces.”

Observing that clause (b) covered a person “about to commit a cognisable offence”, he said “according to the provisions of the Criminal Procedure Code, no police office is given powers to arrest a person who is about to commit a cognisable offence”.

“It is a very dangerous power that a person should be authorised to arrest a man who is about to commit a cognisable offence …….. it is too great and arbitrary a power,” he said.

Bhargava had also argued that “there is no such safeguard here that the military should do as little harm as possible. On the contrary power is given to kill or behave in any manner they please”.

In this Bill, he said, the officer concerned has been vested with a very large discretion. “If he thinks necessary to do a particular act for the maintenance of public order, he can do so ….. no prosecution, suit or other legal proceeding can be brought against him”.

Bhargava, who had seen the riots in what is now Pakistan, had also warned that this Bill will not go a long way in providing a solution to the difficulties. “On the contrary, as soon as the emergency is over, there will be such a reign of terror, as happened in Punjab, which will be more terrible than the emergency itself when the killings were going on.”

Sounding a note of caution, he also observed that this measure applies to the whole of India. “Therefore it is all the greater reason that we should be circumspect and not inflict any great hardship on the people whom you are not taking into consideration. It is a very drastic measure ….. It really affects the rights of the public in general. It gives more power to the army than we are accustomed to.”

Sikh refugees escaping communal violence in 1947. Credit: Wikimedia Commons

Sikh refugees escaping communal violence in 1947. Credit: Wikimedia Commons

‘Essential for provisional governments’

Activist, writer, lawyer and educationist, K.M. Munshi from Gujarat, however, defended the Bill saying it was “essential that the provincial governments should be given the power to declare an area disturbed in which they can secure the assistance of the military”.

K.M. Munshi. Credit: Wikimedia Commons

K.M. Munshi. Credit: Wikimedia Commons

Asked by Shibban Lal Saksena what the guarantee was, that the law will not be used against labour movements, he replied: “… if a labour struggle assumes such proportions that it threatens the existence of public order or the state, not only this Act but the whole force of India must be used to suppress it. I refuse to be frightened by words ……  We know what labour struggles mean in some hands: should governments in power be made so weak and so frightened in the name of civil liberties that it may not take any drastic action and totter?”

As for the fears expressed vis-à-vis the army, he said, “I claim for them that when they will discharge their duty, they will do it not as an instrument of a foreign power to keep this country in subjugation, but as patriotic citizens whose sole interest is to see that law and order is maintained.”

In his response to the debate, the defence minister said “now short of martial law, this is the only alternative that we can resort to.”

Agreeing with the concerns expressed, Singh said: “Hardly three months ago we got our independence after 150 years of slavery. And if we cannot manage the affairs of this country successfully we will stand condemned in the eyes of the world. It is therefore in order to enhance the prestige of the government and to save innocent lives that it is necessary for us to have these powers.”

The law was passed in the form the government wanted, and despite the promise of a one-year time limit, AFSPA, in a virtually similar avatar remains on the statute books to this very day.

‘Drastic and extraordinary powers’

One member who opposed the measure at the time, H.V. Kamath, said that even though the measure was intended to be temporary, “if during that period a certain section of our forces – be they the police or the army – is going to be invested with very drastic and extraordinary powers, then it is a matter for thought.”

Anticipating the future impact of the law as the years went by, Kamath said:

“Power is all right so long as it is used for the benefit and the good of the people. But are our troops so perfect that they may not abuse such powers conferred upon them?” he had asked.

He also referred to the Azad Hind Fauj of Netaji Subhas Chandra Bose in this context and said, “in addition to ordinary methods of military training, they were given what was called spiritual training. That was why that army did such wonderful things.”

H.V. Kamath. Credit: punjabimanch.com

H.V. Kamath. Credit: punjabimanch.com

When coaxed by Pandit Balkrishna Sharma to speak about “internal aggression”, Kamath replied, “in the Central Provinces and Berar whence I come, some areas were declared as disturbed or dangerous in the very flimsiest pretext. After all, you all know that the CP and Berar have been very free from communal disturbances.”

Kamath also said that AFSPA went against the spirit of fundamental rights. “I remember, sir, if my memory does not betray me, that the fundamental rights – at least some of which were adopted by the constituent assembly only a few months ago – did regard the privacy of a home as more or less sacrosanct; but here, sir, is a measure which confers upon the armed forces this power to enter and search without warrant any premises, make any arrests, recover any person, any property reasonably supposed to be stolen property, or any arms kept in the premises.”

Kamath also said that police should not get the feeling that they are not trusted. He also said that the Bill was not being legislated in war time, but when “there is peace in India”. Questioning where the safeguards were for people assembling peacefully and the protection owed to them from an army officer, “who may have been annoyed by certain civilian members”, he said, “we are clothing the army with such powers that we must see the darkest side possible of this picture.”