A succinct study on Armed Forces Special Powers Act (AFSPA) and human right violation

In this blog, the author has discussed about the extents of human right violation right from the ancient Indian times upto the present day. In some cases it has been seen that the State has played an active role in neglecting human rights by way of Acts of the State. The role of the Judiciary in these cases have been mentioned. Read on to know in details.


Human rights are the basic fundamental rights that are necessary for the existence of humans in this world. These may include the right to life, liberty, and freedom, among others These are necessary for the physical, moral, and spiritual development of the person. If we look at history we won't find many sources that speak of upliftment of human rights during the Mughal period and not even during the British Government. It can, therefore, be presumed, that human rights, even though existed in their form and sanctity, was not enjoy a celebrated enjoyment by the governing authorities. After India got its independence, India looked forward to giving human rights to all persons residing in India. India has the longest Constitution of the world indicating that makers of the Constitution must have analyzed and included all possible rights for the citizens. Now, India is considered as one of those countries which give due heed to the rights and liberties of citizens. It is considered as one of those few countries which absorbed the democracy in its truest sense. It follows the principle of true democracy i.e. ‘Government is by the people, of the people, and for the people’.

However, it is inconceivable that a country like India has a law that is to those rights of life, liberty, and freedom, which have been promised by the Constitution of India. The recent violence in Kashmir precipitated a nationwide debate on the rationality of the Armed Forces (Special Powers) Act, 1958, popularly known as AFSPA.

Historical Background

  1. Armed Forces Special Powers Ordinance of 1942 -It was brought by Lord Linlithgow, the Viceroy of India on 15th August 1942 to suppress and crush the ‘Quit India’ Movement. It provided immunity to the officers that they can’t be challenged for their actions performed under the Act, except with previous permission of the Central Government.

  2. Armed Forces Special Powers Act, 1948 -It was mainly brought to deal with the internal security situation in the year 1947. It replaced the then four ordinances.

  3. Armed Forces Special Powers Act, 1958- The Act of 1948 was repealed in the year 1957. But a year later, the Act of 1958 was brought. When the Nagas began an insurgency in 1954, the Nehru Government needed to oppress this rebellion, so this Act was passed. [1]

Armed Forces Special Powers Act: An Overview

The Act states that it is an Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas.[2]

It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal), and parts of Arunachal Pradesh. The Centre revoked it in Meghalaya on April 1, 2018. In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations. Tripura withdrew the AFSPA in 2015. Jammu and Kashmir too have a similar Act.[3]

  1. Absence of Guidelines - Section 3 of the Act gives the Governor of the State or the Central Government the discretionary power to declare a territory or a stare as disturbed; no guidelines are laid down for declaring a state as disturbed. This gives the Central government enormous power to declare any area as a disturbed area. ( Inderjit Barua v. the State of Assam)[4]

  2. Use of force - Section 4 of the Act which states ‘any officer of the army can shoot to kill in case of the commission or suspicion of the commission of offenses such as acting in contravention of any law or order for the time being in force in the disturbed area. (Kharak Singh v. State of Uttar Pradesh) [5]

  3. Powers of arrest and detention - Section 5 of the Act states that after the arrest of a suspect he or she must be taken to a nearby police station with the ‘least possible delay’. The words ‘least possible delay’ creates a lot of ambiguity and makes the section uncertain. (D.K. Basu v State of West Bengal)[6] & (Nungshitombi Devi v. Rishang Keishang) [7]

Legal analysis of the Act

AFSPA has been a controversial Act among civilians from the day of its enactment. Its constitutional validity was challenged in the year 1997 in the case of Naga People’s Movement of Human Rights v Union of India [8] as a consequence of the incident of Operation Bluebird. The case was brought in violation of 14, 19(1), 21,22,23,25 as well as other constitutional and legal rights. Supreme Court upheld the constitutional validity of ADSPA.

There is the number of cases pending before Hon’ble Supreme Court challenging the constitutional validity of the same.

It is important to mention the reports of two committees 1) Justice Hegde Commission 2) Justice Verma Committee, both the committees in 2013 criticized the working of AFSPA and said that it has caused so much hatred and inconvenience. [9]

Review of Article 21

Article 21 guarantees the right to life and personal liberty, and no person shall be deprived of it, except according to the procedure established by law. This procedure must be fair, just and reasonable. (Maneka Gandhi v. Union of India)[10]

But Section 4(a) of the Act gives the right to Military personnel to shoot anyone. It violates Article 21 of the Constitution. This law is not fair and it results in a violation of human rights.

Review of Article 22

Article 22 talks about Protection against arrest and detention in certain cases. AFSPA when analyzed violates this right. Under AFSPA, arbitrary and unconstitutional detention of people is practiced by the army. In Nungshitombi Devi v. Rishang Keishang[11], the petitioner's husband was arrested by CRPF on 10th January 1981 and was missing till 22nd February 1981. He was arrested under Section 4(c). The court found this delay, even under Section 5 to have been illegal and too long.

Story of Irom Sharmila

Whenever talking about AFSPA, a name that always comes in mind is Irom Sharmila, the Iron Lady of Manipur. She is known for her 16 years long hunger strike. The ‘malom massacre’ prompted Irom to begin a hunger strike against the atrocities in Malom, which later developed into a prolonged hunger strike against the AFSPA. She ended her hunger strike on August 9, 2016.

Violation of International conventions and Protocols

a) International Covenant on Civil and Political Rights (ICCPR)

Many of the provisions of the Covenant are non-derogative, i.e., they cannot be suspended even during an emergency. Article 6, 7, 8, 9, 11, 15, 16 are non-derogative rights. When we analyze all those rights such as Article 6 which assures the right to life and Article 7 which forbids torture, we will find that AFSPA violates most of these rights.


b) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

India is a signatory party to CAT but it has not ratified it yet. Article 10 of Convention requires the State parties to ensure that all law enforcement personnel, medical personnel, public officials and other persons who may be involved in custody, interrogation or treatment of any person are trained regarding the prohibition against torture and that the rules relating to their duties incorporate the prohibition. However, Section 4 and 5 of the Act leave so many loopholes and gives the army or military personnel enough power to use force against such people merely on the ground of suspicion. A famous incident took place in the year 2008 and 2009 when thousands of graves of civilians were found in J & K(belonging to civilians) but no action was taken.[12]


c) Geneva Convention and Additional Protocol II

It talks about protecting the human rights of civilians. It says that the basic human rights of a civilian such as the right to life, liberty, etc. must be maintained even during wartime.[13]


d) Principle 3 of the UN Principles on Effective Prevention and Investigation of Extralegal and summary executions- It states that Governments shall prohibit orders from superior officers or public authorities authorizing or inciting other persons to carry out any such extra-legal, arbitrary or summary executions. All persons shall have the right and the duty to defy such orders. In a nutshell, it was tried to be ensured that military personnel will not torture or punish or shoot a civilian even if ordered.[14]


e) Code of Conduct for Law Enforcement Officials, 1979- It may apply to the military forces and personnel in J&K, northeastern states. It says that in the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons. (Article 2) [15]


f) Universal Declaration of Human Rights

Article 3 of UDHR mainly deals with maintaining basic human rights such as the right to life, liberty, and security of persons.

Some other regional instruments which although don’t apply on India but talks about protecting human rights-

· American Convention on Human Rights

· African Charter on Human and Peoples' Rights

· European Convention for the Protection of Human Rights and Fundamental Freedoms[16]

· ASEAN Intergovernmental Commission on Human Rights, etc.

Conclusion

It can be said that AFSPA during the colonial period was brought with bad intentions (draconian law) to crush the ‘Quit India Movement’. But after independence was achieved it was necessary to maintain peace in disturbed and conflicted areas. So, the government needed to maintain peace in those areas. AFSPA is an alternative used by the government to maintain peace and society. However, Parliament may make necessary changes, if needed. In case of misuse, the judiciary may take appropriate action because it is equipped with those powers. It is mainly used so that some 3rd person’s human rights can be saved. Though sometimes the army indeed misuses their power this can’t be the reason to remove AFSPA. Our main priority is to oppress the aggression against the country because it can destroy the peace of the country. It acts as a necessary evil in society.


REFERENCES

[1] Manvi Khanna and Nehal Jain, AFSPA : Legalising Violation of Human Rights?

[2] Armed Forces Special Powers Act

[3] Basharat Peer, The Armed Forces Special Powers Act: A brief history, http://america.aljazeera.com/articles/2014/3/8/armed-forces-specialpowersactabriefhistory.html

[4] AIR 1983 Delhi 513

[5] AIR 1963 SC 1295

[6] D K Basu v. State of West Bengal (1997) 1 SCC 216

[7] Nungshitombi Devi v. Rishang Keishang (1982) 1 GLR 137.

[8] Naga People’s Movement of Human Rights v. Union of India AIR 1998 SC 431

[9] https://www.amnestyusa.org/reports/the-armed-forces-special-powers-act-a-renewed-debate-in-india-on-human-rights-and-national-security/

[10] 1978 AIR 597, 1978 SCR (2) 621

[11] (1982) 1 GLR 137

[12] Vijaita Singh, Revisit AFSPA, The Hindu, JULY 01, 2019

[13] Malcolm N Shaw, International Law, Cambridge University Press, sixth edn.

[14] Principle 3 of the UN Principles on Effective Prevention and Investigation of Extralegal and summary executions

[15] Article 2 of Code of Conduct for Law Enforcement Officials, 1979

[16] Malcolm N Shaw, International Law, Cambridge University Press, sixth edn.


Submitted by,

Utkarsh Dixit,

3rd Year, LL.B. (Hons.),

Faculty of Law, University of Lucknow.


(Image used for representational purpose only.)

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