Armed Forces Special Powers Act, 1958 : A critique

N Brajakanta Singh *

School children participating in rally against AFSPA in Naga Inhabited areas in August 2016 :: Pix - Tenno Pheiray

The recent developments in Manipur and Nagaland have once again brought into focus the continuous imposition of the Armed Forces Special Powers Act, 1958 (AFSPA) in the North-East.

This article examines whether the Indian Parliamentary legislation authorizes a defacto proclamation of Martial Law in these region empowering the armed forces of the Union to act independent of local civil authority and control. The article also examines the Supreme Court’s decision upholding the Constitutional validity of the AFSPA.

Is AFSPA a Martial Law ?

The Indian Parliament enacted the AFSPA on September 11, 1958 in order to curb the violence caused by Naga rebellion and restore normalcy in the region with the use of military forces by aiding the State administration. The whole of Manipur has been declared a ‘disturbed area’ under section 3 of the AFSPA since 1980, in the wake of rising insurgency activities by armed opposition forces.

Although the AFSPA was supposed to enforce only when the law and order situation becomes so deteriorated that the State police force is unable to contain it, but the law is operating even in normal times. The phrase ‘armed forces’ is defined in AFSPA to mean “the military forces and air forces operating as land forces, and includes other armed forces of the Union so operating.”

The law under section 4 enormously empowers the military officers to use deadly force on people who are violating the rule prohibiting assembly of five or more persons, or carrying weapons or things capable of being used as weapons. In the name of maintaining law and order, the armed forces of the Union were empowered to shoot any person on mere suspicion.

The recent botched ambush by the Army on December 4, 2021 during which 13 innocent civilians were killed in Oting, Nagaland is just a glaring example of how the armed forces of the Union abused the sweeping power of the license to kill even innocent civilians.

The Army was acting independent of civilian authority and control in a geographical area where defacto Martial Law is promulgated in disguise. When the military acting independent of the control of civilian authorities, there is Martial Law in operation and there is no need to have a formal promulgation of the same. The most important feature of Martial Law is the military acting independent of civilian authority and control.

When a geographical area is placed under Martial Law, the military commander is under no legal obligation to take orders from civilian authority of the area and he is allowed to take his own decisions. The functioning of civilian authorities and Courts does not mean that we are not in a state of Martial Law. Frederick Pollock in his article ‘What is Martial Law’ writes that the absence of visible disorder and continued sitting of Courts are not conclusive evidence of a state of peace.

The pertinent question is whether the military is under the control of the civilian authority or whether it is acting independent of the civilian authority. If the military is acting independent of the civilian authority and the Courts, such would be a state of de facto Martial Law whether or not it is so called.

Under the AFSPA, the military also have the power to arrest and search without warrant. There is also provision for handing over of arrested person under section 4(d) which provides that any person arrested and taken into custody under the AFSPA shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest. It empowers the military to hold a prisoner until the order is restored and he can be safely turned over to the civil authorities for trial, another feature of Martial Law.

It is now clear that Martial Law prevents but it does not punish. However, the AFSPA under section 6 provides full legal immunity to any person who acts under its authority. The Union Ministry never grants prosecution sanction for trial of any erring military personal involved in human rights violations in Manipur. Further, the issuance of a ‘Disturbed Area Notification’ under the AFSPA is in fact defacto promulgation of Martial Law in the region.

Constitutionality of the AFSPA

The Constitutional validity of the AFSPA was questioned in the case of Naga People’s Movement of Human Rights vs Union of India, AIR 1998 SC 431, before the Apex Court of India. Since the case involved a substantial question of interpretation of the Constitution of India and, as mandated under Article 143, the case was referred to a Constitutional Bench of five Judges of the Supreme Court.

It was argued, on behalf of the petitioners, that the use of the Armed forces in aid of civil power contemplates the use of Armed Forces under the control, continuous supervision and direction of the executive power of the State and that Parliament can only provide that whenever the executive authorities of a State desire, the use of Armed Forces in aid of the civil power would be permissible but the supervision and control over the use of the Armed Forces has to be with the civil authorities.

It was also argued that the military cannot act independent of the control and supervision of the civilian authority. It was also argued that the State in whose aid the Armed Forces are so deployed shall have the exclusive power to determine that purpose, the time period and the areas in which the Armed Forces should be requested to act in aid of civil power and that the State remains a final directional control to ensure that the Armed Forces act in aid of civil power and do not supplant or act in substitution of the civil power.

The Supreme Court of India rejected the arguments of the petitioners by observing that the hon’ble Judges were, however, unable to agree with the submission of the learned counsel for the petitioners.

The Apex Court, in another paragraph, also observed that the expression ‘in aid to civil power’ in Entry 1 of the State List and in Entry 2A of the Union List implies that deployment of the Armed Forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which necessitated the deployment of the Armed Forces in the State.

The hon’ble Court unanimously upheld the Constitutional validity of the law on the ground of Parliament’s power to enact such legislation. The Court noted that the AFSPA concerned ‘the use of Armed Forces in aid of the civil power,’ which was within the domain of Parliament and not ‘public order’, which was within the authority of the State legislatures.

The Court also relied on Article 355 of the Constitution, which imposes a duty on the Union of India to protect every State from internal disturbance. A learned author observed that the Court should have examined the law on the touchstone of right to life under Article 21 of the Constitution of India.

Conclusion

It may be concluded that view of the Supreme Court is that the military is not subject to the control and direction of the civil authorities in a State where defacto Martial Law is promulgated. Any concerned citizen would agree that military can be used in internal disturbances as well as in containing armed opposition forces.

When the military is deployed in an area under the AFSPA, it is anticipated that they should cooperate with the civilian authorities. They should not act unbridle, but police representatives must be associated with every operation conducted by Armed Forces of the Union. They must not carry out blind operations against innocent civilians in locating militants without specific intelligence report.

They must avoid indiscriminate arrests and harassment of people out of frustration for not being able to detect and locate the real assailants. Any personnel involved in violation of law should not be protected. A democratic country is governed by Rule of Law not by rulers.