A closer look at Armed Forces Special Powers Act (AFSPA)
- Part 1 -

RS Jassal *

1. AFSPA is a law, enacted by the Parliament of India, to meet violent internal situations created by underground militant outfits to further their illegal and unconstitutional causes. The law was enacted to provide necessary powers and legal support to the Armed forces for carrying out proactive operations against the militants in a highly hostile environment. In recent times, it has become an object of controversy and a topic of divisive domestic debate, both in print and electronic media.

2. The current situation in Manipur is a complex amalgam of factors. Over the years, the nature of insurgency has shifted to acts of terrorism, extortion, coercion of the population giving rise to a situation of internal disorder. In the last two decades the numbers of militant groups, their arsenals and lethality of weapons have grown immensely. The situation cannot be managed by the State law and order machinery as at present. The Army and other Central forces will therefore, have to play a major role in the security management of Manipur, till the political process and socio-economic measures begin to take effect and the environment in the State is brought under control.

3. Possession of sophisticated weapons, modern communication equipment, moral and financial support from across the borders, presence of women cadres and safe sanctuaries across the areas close to the International Borders has made CI ops very complex.

4. The troops have to operate in a hostile terrain and population environment exposing themselves to grave dangers demanding very high degree of operational effectiveness. At the same time the Armed Forces are required to be extremely cautious in avoiding any collateral damage and loss of innocent life and public/private property. Thus the Armed Forces are under pressure and have to ensure extreme caution in conduct of operations.

Any violation or perceived violation attracts media attention and exploitation by vested interests. On most occasions the allegations are false and fabricated. Operating in such environment requires special laws which offer similar power to the Armed forces like the Cr P C does to the State Police forces.

5. Legal aspects of AFSPA. The essence of the important Sections of AFSPA is as under:-
(a) Sec 3. It lays down the authority which has power to declare areas to be disturbed. These authorities are the Central Govt and the State Govts.
(b) Sec 4. It gives the Army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ ammunition dumps, fortifications, shelters/ hideouts and to stop search and seize any vehicles.
(c) Sec 5. It stipulates that arrested persons and seized property is to be made over to the police with least possible delay.
(d) Sec 6. It offers protection to pers acting in good faith in their officialcapacity. Prosecution is permitted only after sanction of the Central Govt.

6. The AFSPA in general and of Sections 3, 4 and 6 in particular, came up for scrutiny before a Constitution Bench of the Apex Court in a case titled 'Naga People's Movement of Human Rights Vs UOI'. The five judges Constitution Bench elaborately dealt with the challenge to the legality of deployment of the Armed Forces in aid to civil power. The Court unambiguously ruled that AFSPA cannot be regarded as a colourable legislation or a fraud on the constitution.

The Apex Court considered and opined that the conferring of powers vide Sec 4 of AFSPA could not be held arbitrary or violative of Art 14, 19 or 21 of the constitution. In fact having considered the role and circumstances under which the Armed forces have to operate, the Hon'ble Court extended the scope of powers vested vide 4 and 6 of AFSPA so as to include by implication, the power to interrogate the person arrested. It also allowed the Armed Forces to retain the weapons seized during the operations in their own custody rather than to hand over to police authorities.

7. The fact that the provisions of AFSPA have to be invoked with regard to a particular area establishes that the law and order situation in the said area had degenerated to such an extent that the State Govt was unable to maintain peace and tranquility.

A natural corollary to the above would be that if the Armed forces, who are called upon to assist the State administration in restoring normalcy, have to succeed in their task, they enjoy similar powers as the Police force, if not wider ones. A perusal of the various provisions available to the Police authorities under the Cr PC vis-à-vis those available to Armed Forces under AFSPA would reveal that the police authorities enjoy more and wider powers relating to arrest, search, seizure, summoning of witnesses, preventive detention etc than the powers enjoyed by the Armed Forces. The powers of investigation, in any case, is within the exclusive jurisdiction of the police only.

8. Safeguarding Human Rights. One of the most important tasks in promoting human progress is to maintain a proper balance between the interest of the individual and those of the democratic society. Individual freedom has to be balanced with the freedom of other individuals and with reasonable demands of the community/ general public.

It is the duty of the State to harmonize the rights of the individual on one hand and with the requirement of the community on the other. The Central Govt vide Art 355 of the Constitution of India is duty bound to protect every State not only against the external aggression but also internal disturbances and to ensure that the governance of every State is carried out in accordance with the provisions of the constitution of India.

9. It is also an established fact that the judiciary is the custodian of the Constitution. An independent judicial system performs better than any other agency to maintain perfect equilibrium between the liberty of the individual and the powers of the State. In this light, it is emphasized that the Hon'ble Supreme Court of India has upheld the constitutional validity of the Armed Forces (Special Powers, Act). The court further observed that the instructions issued by the military authorities in the form of 'DO's and DON'Ts' while acting under the AFSPA are to be treated as binding instructions which are required to be followed by the members of the Armed Forces.

10. Recently, it has also been observed, some section of the print media reporting that the Indian military do not have a counter insurgency doctrine. It is for information that guidelines to operate in counter insurgency/ terrorist operations have been issued in the form of 'DOs and DON'Ts' to all units, as part of Indian Army's "Doctrine for Sub Conventional Operations". The Army's counter-insurgency doctrine rightly identifies the military's role as "creating conditions that are conducive to the attainment of political objectives".

11. Safe Guards. Adequate checks and safeguards are built in the AFSPA to prevent the Armed Forces from assuming sweeping powers. Violations of its provisions are liable for legal action/ prosecution. The DO's and DON'Ts issued to the units having found approval of the Apex Court have acquired legal status, are binding on the troops which are restraining factors to ensure the guidelines are taken very seriously and prompt disciplinary action is taken against the defaulters under Army Act 1950.

It is reiterated that the Armed Forces of the Union deployed in aid to the Civil Powers have to operate in the State concerned in co-operation with the Civil Administration to deal with the Situation affecting maintenance of public order which has necessitated the deployment of Armed Forces so that normalcy is restored.

Thus the governance of the State remains in the hands of civil administration and not taken over by the Armed Forces, as is wrongly perceived by many people. From bare reading of the act, the misconceptions that security forces enjoy vast powers are laid to rest as power to investigate the offences remains reserved with the police alone.

12. Section 7 of the Act provides legal protection to only those persons who act in good faith in discharge of official order and not otherwise. Acting in good faith would mean to act without any malice in the discharge of the official duties, i.e. exercising due care and caution. The protection under Section 7 would not be available to a member of the security forces, who commit acts which constitute criminal offences not in the discharge of his official duties even in the area which has been declared as disturbed.

13. HR Allegations. Approx 1500 FIRs concerning Human Rights allegations have been filed against the Army and Assam Rifles in last 20 years. Details are as under:-
(a) Allegations received - 1511
(b) Cases investigated - 1508
(c) Cases under investigation - 03
(d) Cases false/baseless - 1473(97%)
(e) Cases found true - 35 (2.32%)
(f) Personnel punished - 104 (Offr-39, JCO-09 & OR-56)

It is also pertinent to mention that the Army has Human Rights cell at all major Headquarters to ensure speedy disposal of alleged Human Rights violation cases.

14. Repeal of AFSPA. In the recent past there has been a growing demand in the environment to repeal of AFSPA. The media in the recent past has been actively propagating this issue. However, repealing of AFSPA will have serious operational implications and as such the Govt has not yet taken any decision on the issue.

15. The AFSPA does have provisions that curtail prosecution, suit or other legal proceeding against a person functioning under the Act except with the previous sanction of the central government. This legal protection definitely implies that the soldier is not placed above the law of the land. It only implies that adequate evidence has to be provided and sanction for prosecution has to be taken.

In any case the Indian Army soldiers are subject to the Army Act 1950 which is invoked while investigating all cases of excesses committed in areas under the jurisdiction of the AFSPA and the Army Act is by no means less stringent that the criminal procedure code of the Indian constitution. In fact, justice is both apt and timely when delivered under the Army Act. Even if the task of dealing with terrorism is given to any force, the organization will require a law similar to the AFSPA to function efficiently and effectively.

16. The Armed Forces are operating in highly hostile environment to defend the border as well as in counter insurgency/counter terrorist operations. In so doing they are required to ensure minimum/ nil collateral damage and safeguard the Human Rights of the people. With such operational constraints, the Armed Forces, fighting for the national cause require full backing and support of the Govt. Hence there is a definite requirement for continuation of the Act till the time insurgency in the State is brought down to the manageable level and the State Govt machinery is able to establish its writ.

If the Govt is compelled by circumstances to repeal the Act then there would be still a necessity of invoking Acts like the Unlawful Activities (Prevention) Act 1967 with suitable amendments to ensure that the Armed forces can carry out their mandate unhindered to create conditions that are conducive to attainment of political objectives.

(Part – II will follow with particular reference to Manipur. )