Interpreting Provisions of The Armed Forces (special Powers) act, 1958

By  Chaity, Sonakshi Verma,Yamini Rajora, National Law University, Jodhpur

Editor’s Note:  The Armed Forces Special Powers Act (AFSPA) was implemented by Indian government in 1958 in the context of separatist movements and the violence caused by them. It has received mixed reactions from across the country and has always been a debatable issue. The authors after a detailed analysis have concluded that there is nothing wrong with AFSPA as a law, but it is prone to more negative construction than positive construction. The criticism of the Act clearly outweighs the benefits provided by it. So, for a more successful implementation of the Act, more amendments are required that leave no lacunae in the interpretation of its provisions.

Introduction

The project aims to interpret the provisions of the Armed Forces (Special Powers) Act, 1958 with the help of analysis of some landmark judgments that cleared the air regarding some ambiguities that were observed in the Act.

The Armed Forces Special Powers Act (AFSPA) is an act empowering armed forces to deal effectively in disturbed areas. Any area which is declared ‘’disturbed’’ under disturbed areas act enables armed forces to resort to the provisions of AFSPA. The choice of declaring any area as ‘disturbed’ vests both with state and central government. After an area comes under the ambit of AFSPA, any commissioned officer, warrant officer, non-commissioned officer or another person of equivalent rank can use force for a variety of reasons while still being immune to the prosecution. The act was passed by the Parliament of India to provide special legal security to the armed forces carrying out operations in the troubled areas of Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland, and Tripura. However, in 1990 the act was extended to the state of Jammu and Kashmir to confront the rising insurgency in the area. In Manipur, despite opposition from the Central government, state government withdrew the Act in some parts in Aug, 2004.

There is widespread controversy regarding the constitutional validity of this Act. The constitutional validity of the AFSPA was challenged in the Supreme Court of India through the case of Naga People’s Movement of Human Rights v. Union of India (UOI)[i]The Supreme Court of India in this case laid down guidelines for the armed forces who are acting in areas under the AFSPA. These provisions were made to ensure that the Act could not be misused. The Supreme Court further decided that the Act is a law in respect of maintenance of public order enacted in exercise of legislative power and not open to challenge. The Act has been criticized widely for depriving people residing in such disturbed areas of certain rights as granted by the Constitution such as the Right to Life as per Article 21and Protection against arrest or detention as per Article 22.

The Act has been at the heart of concerns about human rights violations in the regions of its enforcement, where arbitrary killings, torture, cruel, inhuman and degrading treatment and enforced disappearances have happened.

Under relevant international human rights and humanitarian law standards there is no justification for such an act as the AFSPA. The AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (the “UDHR”), the International Covenant on Civil and Political Rights (the “ICCPR”), 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 and summary executions.[ii]

The greatest outrage of the AFSPA under both Indian and international law is the violation of the right to life. This comes under Article 6 of the ICCPR and under Article 21 of the Indian Constitution, and it is a non-derogable right. This means no situation, or state of emergency, or internal disturbance, can justify the suspension of this right. It was found that the powers to kill under the Act are simply too broad. Private and confidential admissions of military officers reportedly characterize civilian casualties as “errors in judgment” in the application of the Act.  They attest to an apparent practice in which priority is given to the use of lethal force over the arrest of suspects and subsequent prosecution, where warranted.

The frequent violations and culture of impunity have led to protests by civil society activists in Manipur and other states of the North-Eastern India. An exceptional mode of protest against the Act is that of Ms. Irom Chanu Sharmila, who has been on hunger strike since 2000 demanding the repeal of the Act, which she blames for violence in Manipur and other localities in the northeastern part of India.

The Armed Forces (special Powers) act, 1958 [AFSPA]

  1. Short title and extent – (1) This act may be called The Armed Forces (Special Powers) Act, 1958.

(2) It extends to the whole of the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.

  1. Definitions: In this Act, unless the context otherwise requires-

(a) “Armed forces’ means the military forces and the air forces operating as land forces, and includes other armed forces of the Union so operating;

(b) ‘Disturbed area’ means an area which is for the time being declared by notification under section 3 to be a disturbed area’;

(c) All other words and expressions used herein, but not defined and defined in the Air Force Act, 1950 (45 of 1950), or the army Act, 1950 (46 of 1950) shall have the meanings respectively to them in those Acts.

  1. Powers to declare areas to be disturbed areas – If, in relation to any state or Union Territory to which this act extends, the Governor of that State or the administrator of that Union Territory or the Central Government, in either case, if of the opinion that the whole or any part of such State of Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be , may by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.
  2. Special Powers of the armed forces – Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a) If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning 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 disturbed area prohibiting the assembly of five or move persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

(b) If he is of opinion that it is necessary so to do, 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;

(c) Arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(d) Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.

  1. Arrested persons to be made over to the police –Any person arrested and taken into custody under this Act 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.

In case of arrest of any person, army authority is duty bound to handover to the officer-in-charge of the nearest police station with least possible delay.

  1. Protection to persons acting under Act – 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.
  2. Repeal and Saving – [Repealed by Amending and Repealing Act, 1960.

Application of provisions of Bennion as an aid to interpretation

Section 163: Legislative intention as the paramount criterion

“An enactment has the legal meaning taken to be intended by the legislator. In other words, the legal meaning corresponds to the legislative intention.”

The reading of the provisions of the Armed Forces (Special Powers) Act, 1958 seems to be conferring arbitrary powers to the armed forces in disturbed areas but it is important to decipher the intention of the legislature behind the framing of the Act. Although the Act has been widely criticized for the way in which it allows the armed forces to exercise their power without restraints but it is of utmost importance to see that the intention of the legislature while framing the Act was to maintain public order and tranquility in disturbed areas where there are more instances of terrorist attacks and threat to the lives of people living in such areas. Hence, it is of paramount importance to confer some exclusive powers on the armed forces deployed in such areas to tackle any upheavals due to the disturbance in the public order.

Section 157: Nature of strained construction

“Where, on the facts of the instant case and taken by itself, an enactment has a clear grammatical meaning, it is a strained construction to give it a different meaning.”

Section 158: When strained construction needed

“Consequences of a literal construction so undesirable that Parliament could not have intended them.”

The above sections of Bennion[iii] are applicable while interpreting the provisions of the said Act. A plain literal construction may give a stringent and negative perspective of the Act but a strained construction keeping in mind the legislative intention would lead to a more comprehensive view of what the Parliament actually intended.  The interpretation should be such that it fulfills the needs of the present times and therefore, strained construction of any statute is needed. In the case of General Officer Commanding vs. CBI and Anr. and Additional Director General vs. Central Bureau Investigation[iv], there was dispute regarding the meaning of the word ‘institution’ which could either mean mere presenting of the suit or the stage where the court takes cognizance of the matter. It was interpreted that sanction need not be required for institution of the suit. So the word ‘institution’ meant the same as taking cognizance of the matter. This deviation from literal meaning of the word meant that a common man would not have to face constraints while filing of a suit since a strained interpretation of the word ‘institution’ meant that sanction from the Central Government is not necessary for the filing.

There are various tools available to interpret the various provisions of any Act so as to extract the grammatical, literal or the strained meanings whichever suits the varied situations. Hence, interpretation has to be done keeping in mind the facts and circumstances of each case.

Case analysis

Indrajit Barua v. State of Assam and Anr.[v]

Brief facts

  • A writ petition under Article 226 of the Constitution of India was filed by the petitioner in the Gauhati High Court.
  • It was contended in these writ petitions that certain legislative actions of the State of Assam and the Parliament and consequent administrative actions of the Governor of the State of Assam, if tested on the touchstone of the postulates of life and personal liberty were ultra vires.
  • The two enactments challenged were the Assam Disturbed Areas Act, Xix of 1955 enacted by the Assam legislature and the Armed Forces (Assam and Manipur) Special Powers Act, 28 of 1958 read with the Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972 (No. 7 of 1972) enacted by the Parliament.
  • The Act, particularly Sections 2, 3, 4 and 5, has been challenged on the grounds of Articles 14, 19and 21 of the Constitution and also on the grounds of the legislative competence of the Assam legislature and the Parliament.

The Provisions of the Act in Dispute

  • Section 2 of the Armed Forces Special Powers Act 1958

Definitions

  • Section 3 of the Armed Forces Special Powers Act 1958

Powers to declare areas to be disturbed areas

  • Section 4 of the Armed Forces Special Powers Act 1958

Special Powers of the armed forces

Issues

  • Whether there is arbitrariness as to the definition of disturbed areas and public order as per Section 2, 3 and Section 4 of the AFSPA, 1958.

Decision of the Court

The court decided that the lack of precision to the definition of a disturbed area was not an issue.

Reasons for the Decision

The following reasons have been given in support of the above judgment:

  • Section 2 of the AFSPA defines disturbed areas as an area which is for the time being declared by notification under Section 3 to be a disturbed area. According to Section 3 of the Act, the Governor of that State or the administrator of that Union Territory or the Central Government, in either case, if of the opinion that the whole or any part of such State of Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary may declare such a State, or part of it or the Union Territory to be a disturbed area.

The term “disturbed area” defies any definition. A disturbed area has to be adjudged according to location, situation and circumstances of particular case. As the term implies, only such area would be disturbed area where there is absence of peace and tranquillity. A disturbed area is such in which disorder of such a type is in existence that it may be regarded as a public order problem. Disturbed area in an otherwise non sensitive area would have one connotation but will have another connotation in a sensitive area like Assam.

  • It was further submitted that inasmuch as the term “disturbed area” has not been defined, the act of declaring an area to be “disturbed area” is without any basis and irrational. In other words, it is whimsical and fanciful amounting to arbitrariness. Any law or procedure which leads to inhumane or degrading treatment, as according to him is permitted or contemplated by Section 4 of the Assam Act and Section 4 of the Central Act, cannot stand the test of reasonableness and absence of arbitrariness and as such will not constitute procedure established by law within the meaning of Article 21 of the Constitution.
  • Sections 4 of the Act confers powers on the armed forces to fire upon, arrest persons or search a premises without any warrant, if it is deemed necessary to do so for the maintenance of public order in a disturbed area.

The term “public order” is a term which is no longer considered to be a vague term but is clearly understood. Any contravention of law always affects order but before it could be said to affect ‘public order’, it must affect the community or the public at large. Thus the distinction in law between the areas of “law and order” and “public order” lies not merely in the nature or the quality of the act upon the degree and extent of its impact upon the society. An act likely to affect public order will always be a law and order question also but the reverse proposition may not be correct.

  • The impugned statutes are for a region which traditionally has had serious trouble. The powers conferred may be exercised in such an area and not in any other area of the country. Secondly, the powers can be exercised only after a declaration has been made by the highest authority of the state that the area is a distributed area. Even the power can be exercised only in respect of those who are violating the law or order promulgated in a distributed area and not in respect of those who are law abiding.
  • Moreover, exercise of power by the authorised persons is permissible if it is necessary to maintain public order, and not merely law and order. Before exercise of the power, and if it is feasible and practicable, a warning is required to be given to those who are in breach of the law or order in force. Force may be used bit it must be commensurate with the circumstances of the situation.
  • Another important safeguard is that the police officers etc. have not been made immune from action in courts for abuse of power. The impugned provisions do not mean that in any and every situation the police officers would just open fire to kill. The impugned provisions are not capable of wanton abuse and the power conferred cannot be held to be bad since there are ample safeguards. The principle of possible abuse of power is not applicable since the power as conferred is not vague.

Conclusion/Critique

Therefore, from the above analysis it can be concluded that as far as the terms public order and disturbed areas are concerned, there is still much vagueness regarding the definitions of the two terms in the Act. However, this decision of the Delhi High Court has been referred to in many later decisions since it was one of the first cases that attempted to interpret the provisions of the said Act. Since the declaration depends on the satisfaction of the Government official, the declaration that an area is disturbed is not subject to judicial review.

Naga People’s Movement of Human Rights v. Union of India (UOI)[vi]

Brief Facts

  • In the Writ Petitions filed under Article 32of the Constitution, the validity of the Central Act and the State Act as well as the notifications issued the said enactments declaring disturbed areas in the State of Assam, Manipur and Tripura have been challenged.
  • In these writ petitions, allegations have been made regarding infringement of human rights by personnel of armed forces in exercise of the powers conferred by the Central Act.
  • The notifications regarding declaration of disturbed areas have ceased to operate.
  • The allegations involving infringement of rights by personnel of armed forces have been inquired into and action has been taken against the persons found to be responsible for such infringements.
  • The Act has been challenged on the ground that it violates Articles 14, 19 and 21 of the Constitution of India.

The Provisions of the Act in Dispute

  • Section 2 of the Armed Forces Special Powers Act 1958

Definitions

  • Section 3 of the Armed Forces Special Powers Act 1958

Powers to declare areas to be disturbed areas

  • Section 4 of the Armed Forces Special Powers Act 1958

Special Powers of the armed forces

  • Section 5 of the Armed Forces Special Powers Act 1958

Arrested persons to be made over to the police

  • Section 6 of the Armed Forces Special Powers Act 1958

Protection to persons acting under Act

Issues

  • Whether Section 2(b) defining “disturbed area” is vague in as much as it does not lay down any guidelines for declaring an area to be a disturbed area.
  • Whether Section 3 entails that there is no requirement of a periodic review of a declaration issued under and that a declaration once issued can operate without any limit of time.
  • Whether the conferment of power to issue a declaration under Section 3 of the Central Act on the Governor of the State is invalid since it amounts to delegation of power of the Central Government.
  • Whether, as regards S. 4, there is no justification for having a special law as the Armed Forces Special Powers Act because adequate provisions are contained in the Cr.P.C. to deal with a situation requiring the use of armed forces in aid of civil power.
  • Whether the conferment of powers to a junior officer under Section 4 created the likelihood of the powers being misused and abused.
  • Whether the protection given under Section 6 virtually provides immunity to persons exercising the powers conferred under Section 4 inasmuch as it extends the protection also to “anything purported to be done in exercise of the powers conferred by this Act”.

Decision of the Court

The validity of the Armed Forces (Special Powers) Act 1958 was upheld.

Reasons for the Decision

In support of the judgement of the Court confirming the constitutional validity of the Act the following reasons have been given:

  • The term “disturbed area” defies any definition. A disturbed area has to be adjudged according to location, situation and circumstances of particular case. As the term implies, only such area would be disturbed area where there is absence of peace and tranquillity. A disturbed area is such in which disorder of such a type is in existence that it may be regarded as a public order problem[vii]. Also, the extent of the disturbed area is confined to the area in which the situation is such that it cannot be handled without seeking the aid of the armed forces.

For an area to be declared as ‘disturbed area’ there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union Territory or the Central Government can form an opinion that area is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary. Therefore it cannot, therefore, be said that an arbitrary and unguided power has been conferred in the matter of declaring an area as disturbed area.

  • The words “for the time being” used in S. 2(b) imply that the declaration under Section 3has to be for a limited duration and cannot be a declaration which will operate indefinitely. It is no doubt true that in Section 3 there is no requirement that the declaration should be reviewed periodically. But since the declaration is intended to be for a limited duration and a declaration can be issued only when there is grave situation of law and order, the making of the declaration carries within it an obligation to review the gravity of the situation from time to time and the continuance of the declaration has to be decided on such a periodic assessment of the gravity of the situation.
  • There is a distinction between delegation of power by a statutory authority and statutory conferment of power on particular authority/authorities by the Legislature. Under Section 3 of the Central Act there is no delegation of power of the Central Government to the Governor of the State. The power to issue a declaration has been conferred by Parliament on three authorities, namely the Governor of the State, the Administrator of the Union Territory, and the Central Government. Moreover, the issuance of a declaration, by itself, would not oblige the Central Government to deploy the armed forces of the Union. After such a declaration has been issued by the Governor/ Administrator the Central Government would have to take a decision regarding deployment of the armed forces of the Union in the area that has been declared as a ‘disturbed area’. The conferment of power on the Governor of the State to make the declaration under Section 3cannot, therefore, be regarded as delegation of power of the Central Government.
  • The provisions given in the Cr.P.C. has a very limited application to deal with a particular incident involving breach of public security arising on account of an unlawful assembly, etc. The Act makes provisions for dealing with a different type of situation where the whole or a part of a State is in a disturbed or dangerous condition and it has not been possible for the civil power of the State to deal with it and it has become necessary to seek the aid of the armed forces of the Union for dealing with the disturbance. The provisions in the Cr.P.C. cannot thus be treated as comparable and adequate to deal with the situation requiring the continuous use of armed forces in aid of the civil power for certain period in a particular area as envisaged by the Act and it is not possible to hold that since adequate provisions to deal with the situation requiring the use of armed forces in aid of civil power are contained in the Cr.P.C. the conferment of the powers on officers of the armed forces under Section 4of the Central Act to deal with a grave situation of law and order in a State is violative of the Constitution.
  • As regards Non Commissioned Officers it has been pointed out that a jawan is promoted to the rank of Naik after approximately 8 to 10 years of service and to the rank of Havildar after 12 to 15 years of service and that a Non Commissioned Officer exercising powers under Section 4 is a mature person with adequate experience and is reasonably well versed with the legal provisions. Having regard to the status and experience of the Non-Commissioned Officers in the Army and the fact that when in Command of a team in a counter insurgency operation they must operate on their own initiative, it cannot be said that conferment of powers under Section 4on a Non-Commissioned Officer renders the provision invalid on the ground of arbitrariness.
  • The protection given under Section 6cannot, be regarded as conferment of an immunity on the persons exercising the powers under the Central Act. Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution. Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or a suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.

Conclusion/Critique

The present case has come out to be a landmark judgement as far as this Act is concerned and has successfully proved its constitutional validity. The clear interpretation of the provisions laid down in this judgement has been further referred to in several judgements. The Act of 1958 hence cannot be regarded as colourable legislation or fraud on Constitution of India as it in pith and substance is law in respect of maintenance of public order enacted in exercise of legislative power and is not open to challenge.

Harendra Kumar Deka v. State of Assam and Ors.[viii]

Brief Facts

  • An accident occurred at Maroi resulting in the death of one boy.
  • Public tried to attack and detain the vehicle after the accident.
  • The driver, Prakash Deka (the petitioner’s son) became nervous and to save the life of passengers and also to save the vehicle from public outrage, drove the vehicle at abnormal speed.
  • The constables present at the place of the incident tried to stop the vehicle but it went past the first and second group of constables.
  • When the third group tried to stop the vehicle, it hit one of the constables and tried to escape.
  • The said constable jumped towards the road side and fired at the moving vehicle aiming at the wheels to stop it. Then it is found that the vehicle suddenly swerved directions and stopped after some distance.
  • When the constables gheraod the vehicle and asked the passengers to surrender, they found that the driver of the vehicle had succumbed to the injuries suffered from the police firing.

The Provisions of the Act in Dispute

  • Section 2 of the Armed Forces Special Powers Act 1958

Definitions: In this Act, unless the context otherwise requires-

(a)“armed forces’ means the military forces and the air forces operating as land forces, and includes other armed forces of the Union so operating;

  • Section 4 of the Armed Forces Special Powers Act 1958

Special Powers of the armed forces – Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning 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 disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

Issues

  • Whether the killing of Prakash Deka by the police personnel of the State of Assam is justified in law.

Decision of the Court

  • The personnel of the police forces of Assam, who caused the death of Prakash Deka, are not entitled to the protection of the said Act and hence the killing is not justified in law.

Reasons for the Decision

The court reached the conclusion that the members of the police party would have been perfectly justified in attempting to arrest Prakash Deka. They were also entitled to employ appropriate force for accomplishing such arrest. But it is not the case of the State that either Prakash Deka or any one of the other co-passengers in the vehicle was a member of an extremist group or an extremist that the police party bona fide believed or that Prakash Deka or any one of his fellow passengers in the vehicle was guilty of an offence punishable with death or life imprisonment. The judgement is concluded by stating that though Assam is a disturbed area within the meaning of the Armed Forces (Special Power) Act, the personnel of the police forces of Assam, who caused the death of Prakash Deka, are not entitled to the protection of the said Act as they are not “armed forces” within the meaning of the expression as defined under the Act.

Conclusion/Critique

In the judgement, various factors were suggested to arrive at any definite conclusion, such as

  • the circumstances in which Prakash Deka (deceased) was killed
  • the amount of force employed by the police party, i.e., the number of shots fired
  • which one of the members fired those shots; identification of the person whose shot resulted in the death of Prakash Deka and
  • The intention of such a person in inflicting the deadly injury etc.

However, the judgement of the Court was contrary to the factors suggested as the facts and circumstances of the present case seem to fulfil all the above mentioned factors and justify the killing. The circumstances in which the deceased was killed justify it since it was a serious occasion and in the area the extremists were known to be active. The police had enough reasons to stop and check the vehicle. In addition to that, enough warning was given as they sped past two of the ‘naka’ party and was only shot at with the main aim being to stop the vehicle causing the death of the driver from the firing. Giving in to the lack of evidence pertaining to the number of shots fired an alternated argument can be given to justify the force employed, since the wheel of the vehicle was aimed and fired upon with the sole intention of stopping and not causing any deadly injury. Furthermore, the firing was done by a constable, member of the third ‘naka’ party who was acting under official duty.

As proved above, the conditions under which police force was used satisfies the factors given by the Court and qualifies it to be protected under the Act as the “armed forces”. However, the judgement was concluded abruptly without giving any proper reasons as to the decision made and left a lacuna in the judgement making it inconsistent and arbitrary.

Major Sowmithri v. State of Assam and ors.[ix]

Brief facts

  • A complaint was lodged by Shri Krishna Bahadur Chhetri that his son was coming home when Army personals along with two / three persons in civil dress had beat him up.
  • After sometime the Army personals left the place of occurrence in two vehicles leaving Sri Dilip Kumar Chetri in a half dead condition leading to his death.
  • During investigation it came to light that at the relevant time the Regiment under the leadership of Captain Sowmithri S. a group of Army Personals had committed the aforesaid murder and to evade arrest had fled from the Camp.
  • Therefore, a case was registered against the aforesaid Captain Sowmithri S. and charge-sheet was filed.
  • On the other hand after committing the murder the army team left the camp under the leadership of the aforesaid Army Officer and thereafter on making communications on many occasions he could not be arrested.
  • On the basis of the FIR registered by the complainant, a case was registered in the Court of the Learned Chief Judicial Magistrate, Sivasagar.
  • Summons were issued to the petitioner which he was not aware of due to his posting outside Assam and this compelled the Court to issue a warrant of arrest against him.
  • Feeling aggrieved, the petitioner is before this Court questioning the legality and validity of the entire criminal proceeding on the ground that no previous sanction of the Central Government has been obtained for his prosecution.

The Provisions of the Act in Dispute

  • Section 6 of the Armed Forces (Special Powers) Act

Protection to persons acting under Act- 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.

Issues

  • Whether the protection available under S. 6 of the 1958 Act is available to the petitioner.

Decision of the Court

  • The protection under S. 6 is not available and no previous sanction of the Central Government is required to proceed with the matter.

Reasons for the Decision

The court mainly relied on two admissions in the chargesheet which clearly shows that the accusation against the petitioner has nothing to do either with his discharge of duty while on active service or with his exercise of power conferred by the 1958 Act.

  • There was no provision or permission to conduct operations in civil dress by the army personnel according to the 1958 Act under which the petitioner was deployed to carry out Army operations against insurgents and terrorists.
  • Secondly, it is stated from the record that there was no patrol of the concerned Regiment in the area of the incident.

From the two statements referred to above, the incident or occurrence appears to be totally unrelated to either active service or the exercise of power under the 1958 Act. Further, the protection under S. 6 of the 1958 Act would be available only in respect of anything done or purported to be done in exercise of the powers conferred by this act. As already noted above, the accusation made in the charge-sheet and the averments made in the army affidavit do not indicate any relation or nexus of the incident with the exercise of power under the 1958 Act. Also, the provisions of the 1958 Act is to ensure protection to the personnel of the Armed Forces when they are fighting against terrorists and anti-national elements to protect the unity and integrity of the country. The provisions of this Act are not meant to shield any member of the Armed Force charged with commission of an offence which is unconnected with the exercise of power conferred by this Act. Since the petitioner is not protected under this Act, further proceedings against him can take place without any prior sanction from the Central Government.

Conclusion/Critique

While dealing with the matter in the present case, the court has come up with clear cut prerequisites for an act to be qualified under the ambit of the term “official duty”. Further, the term “official duty” has been interpreted in the case Prakash Singh Badal and Anr. V. State of Punjab and Ors.[x] as the act or omission done by the public servant in course of his service and such act or omission must be performed as part of duty which further must be official in nature. In the light of this interpretation, the act of the petitioner does not qualify as an “official duty” hence the judgement of the Honourable Court is justified.

General Officer Commanding v. CBI and Anr. and Additional Director General v. Central Bureau Investigation[xi]

This case involves two criminal appeals numbered 257 of 2011 and 55 of 2006.  As the facts and legal issues involved in both the appeals are similar, the decision has been made by a common judgment.

Brief Facts

  • On 22.2.1994, the 18th Battalion of Punjab Regiment was deployed in Tinsukhia District of Assam to carry out the counter insurgency operation in the area of Saikhowa Reserve Forest.
  • The said Army personnel faced the insurgents who opened fire from an ambush and in the process of return fire, some militants died.
  • Upon the continued search of the Battalion at the place of encounter, bodies of the militants along with arms and ammunitions were recovered.
  • An FIR was and the local Police also visited the place and investigated the case.
  • Under the Army Act investigation was conducted by the Army and their version of inquiry was found to be true and the finding was recorded ‘the counter insurgency operation was done in exercise of the official duty’.
  • Two writ petitions were filed before the High Court alleging that the killings were done in a fake encounter.
  • The CBI filed a chargesheet in the Court of Special Judicial Magistrate against the Army personnel and the Court issued a notice to the Appellant to collect the chargesheet.
  • The Appellant has requested the said Court not to proceed with the matter as the action had been carried out by the Army personnel in performance of their official duty and thus, they were protected under the Act 1958 and in order to proceed further in the matter, sanction of the Central Government was necessary.
  • This was rejected by the Court and aggrieved Appellant filed a revision petition before the High Court which was also rejected by the High Court.
  • Hence, this appeal.

The Provisions of the Act in Dispute

  • Section 6 of the Armed Forces (Special Powers) Act 1958 (identical to Section 7 of the Armed Forces J&K (Special Powers) Act 1990)

Protection to persons acting under Act- 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.

Issues

  • Whether the term ‘institution’ mentioned in S. 7 of the 1990 Act therein means filing, presenting, submitting the chargesheet in the court or taking cognizance.
  • Whether the court can proceed with the trial without previous sanctionof the Central Government.

Decision of the Court

  • The conjoint reading of the relevant statutory provisions and rules make it clear that the term “institution” contained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.
  • The court cannot proceed with the trial without a previous sanction of the Central Government under the 1990 Act in the present case.
  • The option is given to the competent authority in the Army to decide as to whether the trial would be by the criminal court or by a Court Martial. In case the option is made to try the case by a Court Martial, the said proceedings would commence immediately. In case the option is made to try the case in the Criminal Court the CBI shall make an application to the Central Government for grant of sanction.

Reasons for the Decision

  • Institution of a case: The meaning of the term ‘institution’ has to be ascertained taking into consideration the provisions of the Act/Statute applicable and the facts and circumstances of the individual case. The question does arise as to whether it simply means mere presentation/filing or something further where the application of the mind of the court is to be applied for passing an order. As per the issue, the expression may mean filing/presentation or received or entertained by the court. In the present case, the Court has paid reliance on the decisions held in Jamuna Singh and Ors. v. Bhadai Shah[xii]and Satyavir Singh Rathi, ACP and Ors. v. State through CBI[xiii] wherein it was held that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein.
  • Sanction for prosecution: The question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have reasonable connection inter-relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction which is the same as the condition in the present case where prior sanction was not obtained by the CBI. The Legislature has conferred “absolute power” on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority. Thus, stating the above reasons, the Court has come to the conclusion that the sanction of the Central Government is required in the facts and circumstances of the case and the court concerned lacks jurisdiction to take cognizance unless sanction is granted by the Central Government.
  • The court refers to the decision in Ram Sarup v. Union of India and Anr[xiv] where it was held that there could be variety of circumstances which may influence the justification as to whether the offender be tried by a court-martial or by criminal court, and therefore, such a choice be left to the Military Officers who are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the persons against whom the offence is committed. Once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act. The Army Act does not provide for sanction of the Central Government and thus the contention being raised by the Appellant that a previous sanction is required even when the matter is to be adjudged by a Court Martial stands rejected.

Conclusion/Critique

In general legal terms, the word ‘institution’ may mean a mere filing or entertainment of a suit. However in the present case keeping the facts and circumstances as well as the provisions of the Act in mind, the Court has interpreted the term ‘institution’ as taking cognizance which may not necessarily be the literal meaning and also might change depending the facts and circumstances of any other case.

While dealing with the question of acquiring of a sanction from the Central Government, the judgment in the present case has made it clear that the Court cannot proceed without the sanction of the authority but failed to provide reasons as to why it is not made mandatory for the sanction to be acquired before the presentation of the chargesheet when it is already discussed that the sanction is of paramount importance as it protects the public servant from being unnecessarily harassed.

Conclusion

In light of the cases analyzed in this project work, it can be concluded that the Armed Forces (Special Powers) Act of 1958 is not exhaustive as far as the issues related to public order in a state are concerned. The Act itself is very short whereas the nature of the matter it deals with requires great amount of detailed attention.

Section 2 of the Act which states the definitions of terms like disturbed areas and armed forces lacks specificity. The definitions are vague in nature and although has been interpreted in the cases discussed above, yet it does not give a very precise view or criteria to classify an area as a disturbed area which can lead to flawed interpretations of the same since it might vary from case to case.

By the amendment of the Act in 1970, the very option given to the Central Govt. may not be justified since the State has a better idea about the conditions prevailing under which that area is declared to be a disturbed area. Moreover, the whole process of taking this particular decision may take time since the Central Govt. is occupied with other matters at hand.

Sections 4 confers powers on the armed forces to fire upon, arrest or search a premises without a warrant. Theses powers are extensive since the forces have freedom to use any amount of power against a person that they may suspect to be a threat to the public order in that area, and these powers may even extend to killing of that person. It is left to the discretion of the officers of such armed forces to form an opinion regarding the circumstances prevalent in that area, however, this opinion may not always be in the best interest of the public.

Section 5 of the Act deals with the handing over of the arrested person to the nearest police station but it has been observed in certain cases that the same is not complied with as was the case in People’s Union of Civil Liberties v. Union of India[xv], where the two arrested persons were taken to a faraway place and shot dead instead of being produced in a police station. This was a clear violation of the pertinent section.

It has been seen in a case[xvi], an option was given to try the case either in the court martial or in a criminal court and if the case is tried in a criminal court, the sanction from the Central Govt. was required for the same and only then Section 6 would operate. This reduces the significance of this section as it only relates to sanction and not the kind or extent of protection provided to the armed personnel.

Hence, it can be said that the Act is prone to more negative construction than positive construction. The criticism of the Act clearly outweighs the benefits provided by it. So, for a more successful implementation of the Act, more amendments are required that leave no lacunae in the interpretation of its provisions.

Edited by Kanchi Kaushik

[i] AIR 1998 SC 431

[ii] ‘The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the Northeast of India: Sanctioning repression in violation of India’s human rights obligations’ available at http://www.humanrights.asia/resources/journals-magazines/article2/1003/the-armed-forces-special-powers-act-1958-in-manipur-and-other-states-of-the-northeast-of-india-sanctioning-repression-in-violation-of-india2019s-human-rights-obligations

[iii] F. A. R. Bennion, ‘Bennion on Statutory Interpretation’ ed. 5 (New Delhi: Lexis Nexis)

[iv] Infra note 11

[v] AIR 1983 Del 514

[vi] AIR 1998 SC 431

[vii] Supra note 5

[viii] (2009) 2 GLR 263

[ix] 2012 CriLJ 4278

[x] AIR 2007 SC 1274

[xi] AIR 2012 SC 1890

[xii] AIR 1964 SC 1541

[xiii] (2011) 6 SCC 1

[xiv] AIR 1965 SC 247

[xv] (1997) 3 SCC 433

[xvi] Supra note 11

One Reply to “Interpreting Provisions of The Armed Forces (special Powers) act, 1958”

  1. U guys r awesome,u always give a very detailed material….thank q… but sometimes ur site is not accessible

Leave a Reply

Your email address will not be published. Required fields are marked *