By Nimesh Kumar Choudhury
Editor’s Note: Armed Forces (Special Powers) Act, 1958(AFSPA) was an act created after independence to protect the disturbed or terror affected areas. It was a small act of 6 sections which gave immense powers to military to take actions against the wrong in disturbed areas. It has a long history of how it evolved throughout the years and received several criticisms.
Researchers have tried to establish whether this act gives arbitrary powers to military forces or not. We have tried to deal with both sides of the story by trying to show what the antagonist and protagonist have to say about the Act. How it violates the Article 21of Indian Constitution which is a fundamental right but at the same time gives some exceeding powers to army to maintain law and order in places of attack.
We have also shown the present scenario of India in relation to the act. Protest by the Iron Lady Irom Sharmila against it and the huge rallies being carried out in states to claim their right. It also shows the difficulty faced by the protestors.
A critical analysis of the different sections has been done to know which sections provide arbitrary powers and which do not. The paper also relates ethical principles to AFSPA. It shows how the ethical concepts and principles are being followed or violated through this act.
Researchers have tried to list down plausible solutions to these sections and how it can be amended to make it non-arbitrary. The paper concludes with the answer to the question whether it gives arbitrary powers or not and how it can be solved.
Even after Independence India was not at peace, it had to face many wars, insurgency and extremist attacks due to secessionism. It affected the territorial integrity and unity of the nation. The Indian Government to protect the integrity of the nation and to protect its citizen passed the Armed Forces (Special Powers) Act, 1958 (AFSPA) on 11th September 1958.
A small Act of 6 sections, AFSPA which grants special powers to the Indian Army Forces to protect disturbed areas. Disturbed area is defined as- when the Governor of that State or the Administrator of that Union Territory is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the local police or forces cannot control it and use of armed forces in aid of the civil power is necessary, the Governor of the state or the Administrator of that Union Territory or the Central Government, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area. AFSPA is extended to the whole state of Assam, Manipur, Meghalaya, Nagaland and Tripura and the Union Territories of Arunachal Pradesh and Mizoram.
AFSPA has faced a lot of criticism from national and international organizations. United Nations said that it’s a draconian law and it should be repealed immediately. National leaders say that certain provisions of the Act are irrelevant and should be amended immediately but on the other hand, some of the leaders say that they are necessary to maintain peace and security in disturbed areas. People often live a life of fear and anxiety as they are scared that they might be attacked at any time either by a militant or by the army itself.
The government is at the crossroads of providing security and peace to its citizens and as well as providing adequate powers to Army forces to do so.
“I am not afraid of an army of lions led by a sheep; I am afraid of an army of sheep led by a lion.” as said by Alexander the great. The army has always been the selfless protectors of the nation. They are ready to serve the nation without giving a second thought about their loved ones but does this mean that the Army should have excessive or arbitrary powers?
The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15 August 1942 to suppress the Quit India Movement. Modeled on these lines the central government framed AFSPA to deal with the internal security of the nation.
Development through Years of AFSPA-
AFSPA came into being due to the violations in the north-east especially in the state of Nagaland. In 1951, Naga National Council (NNC) was formed which said that they wanted a Free Sovereign Naga Nation but they were not allowed to form so and the situation worsened due to which Assam Rifles and state armed force was brought in to control the rebels.
The Naga rebels were too rebellious to handle and the state armed forces failed. So, the then President Dr.Rajendra Prasad promulgated an ordinance The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 which was later replaced by Armed Forces (Special Powers) Act, 1958.
In 1958, The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 increased its ambit and added 5 new states- Meghalaya, Nagaland, Tripura and to the Union Territories Arunachal Pradesh and Mizoram and the name changed to AFSPA.
In 1983, two new provisions were added to the Act-
a) Under Section 4(e), any vehicle can be stopped, searched and seized forcibly if it is suspected of carrying proclaimed offenders or ammunition.
b) Section 5 was added to the Act specifying that a soldier has the power to break open any locks “if the key thereof is withheld.”
These have been the development of AFSPA over the span of 56years. Today, there has been a great ongoing debate and dilemma over the validity of AFSPA. It is said that every coin has two sides, the same way even AFSPA has 2 sides. The groups which have their own agenda on AFSPA are military and civilians.
Two Sides of the Same Coin (Dilemma)-
The protagonist of AFSPA says that extreme conditions need extreme measures. They agree to the fact that AFSPA grants special powers to military forces but they feel that when there is an insurgency or extremist attack than to tackle such situations military force is required.
When terrorists enter the civilian population then it becomes necessary for the military forces to take extreme actions to protect the life and liberty of the people. It becomes necessary for a soldier to have powers to destroy a hideout place or arrest a suspected person so if these sorts of powers are not with a military person then it becomes difficult for them to maintain public order and peace.
The military feels that any major dilution or withdrawal of AFSPA will adversely affect the military operations and also compromise with national security. So are the military people are playing the peace and security card to get excessive powers, to act as a bully in those disturbed areas?
The antagonist of AFSPA feels that more than to protect the life of people it is a “right to kill” given to the military forces. It is so because of the draconian nature of the Act. Civilians feel that it violates their fundamental right of Right to Life and liberty, i.e Article 21 as in Section 4(a) of AFSPA it grants power to the military to shoot a person or even bring about the death of a person to maintain law and order. This is not a just, fair or reasonable law as excessive force is not permitted. The Act also prohibits assembly of 5 or more people. The civilians feel that they have been subjected to human right violations and torture, arbitrary killings, cruel and inhuman treatment by the military forces. International Organizations such as the United Nations, Amnesty International, etc and Human Rights Commission claim that it should be repealed with immediate effect as it is against Indian democracy.
The current scenario to repeal the AFSPA looks bleak. The government says that with the continuing insurgency in the areas of North-East and Jammu and Kashmir makes it impossible for the repealing the Act.
There have been continuous protests and public displays held for the withdrawal of AFSPA. The best example of this is- the Iron Lady of Manipur, Mrs. Irom Sharmila. She hails from Manipur. She has been on an indefinite hunger strike against AFSPA since 2000. The reason for her to go on the hunger strike was Malom Massacre, on November 2, 2000, 10 civilians were shot and killed while waiting at a bus stop. It was allegedly committed by Assam Rifles which is one of the Indian Parliamentary forces. Her demand was to completely repeal AFSPA which is creating a chaotic situation in the north-eastern states. She has been charged many times under Section of 309 of IPC which is an attempt to commit suicide.
Recently, there have been many instances which show that powers given to the army under AFSPA have been misused by the military forces.
On November 8th, 2014, in Chattergram area, 2 youths were mistakenly killed by the army officials. The Army men took the responsibility of mistakenly killing the youths but said AFSPA has nothing to do with it.
Recently there have been many cases of sexual violations against women in these conflict zones by military forces.
Justice J.S.Verma submitted a report on January 2013 which suggested amendments and changes to AFSPA and it said to bring military forces under the purview of ordinary criminal law.
On April 1, 2014, Rashida Manjoo, the UN Special Rapporteur, presented a report to UN on her recent visit to India for the cause of AFSPA and it said that AFSPA should be repelled and stop the crimes against women in Northeastern states and Jammu and Kashmir. These recommendations were made to extend legal protection to women in the conflict zones.
According to Cognitive Moral Development given by Lawrence Kohlberg, with the passage of years, people grow not only mentally, physically and emotionally but also grow morally. If people critically analyze a situation then they can solve their ethical dilemmas and decide what is right and wrong, as the level of maturity increase with every year.
We have read the Pro’s and Con’s of AFSPA but now we should critically analyze how AFSPA affects the people. We shall relate AFSPA with ethical theories to know whether it should be repealed or not.
1) Consequentialism– It maintains that the majority of an action depends on the nonmoral consequences that the action brings about. The morality of action consists of the ratio of good to evil that the action produces. Giving powers to Army to protect the people of disturbed areas is a good action but giving them arbitrary powers is wrong as it might lead to misuse and non-moral consequences as the ratio of good and evil will bend in favor of the evil.
With reference to Section 4(c), (d) of AFSPA, the officer is allowed to arrest anyone without a warrant on a mere suspicion that he is about to commit a crime and he might search anyone’s house without a warrant as well. These give arbitrary powers to the army as they will not be held responsible for their actions (section 6). These violate Article 22 i.e Protection against arrest and detention.
2) Utilitarianism– It states that the moral standard should be the promotion of the best long term interests of everyone concerned. Act Utilitarianism says that right utilitarian is which produces the highest ratio of good and evil for all concerned. Going by Act utilitarianism, AFSPA should be repealed as Section 4 and 6 of the Act gives arbitrary powers to the army which might be misused and it’s a greater happiness of greatest number that AFSPA is withdrawn as people have been subjected to police atrocities.
But, going by the rule of utilitarianism, it shows us that certain actions have a greater utilitarian value thus general rules are formulated to help us see that we follow these rules. AFSPA was created to help disturbed areas restore back there peace and security and for that military force had to be applied for that military people did need certain powers. So, AFSPA provides protection to the military forces so that they could provide security to the people.
3) Ethical Realism– It states that when absolute norms come into conflict one must decide which to follow. Each solution offers limited alternatives, so the solution which produces the less of two evils is the one to be chosen. In this case, we have a dilemma as to if arbitrary powers should be given to the army or not.
If we choose to not give powers to the army and repeal AFSPA then the ambit of military forces will be limited and they won’t be able to carry out their activities in the same way. National security will be compromised. If we choose not to repeal the AFSPA then we give arbitrary powers to the army like using excessive force to such an extent that it might cause the death of a person, or arrest or search the suspected premise without a warrant (Section 4). So, in this case not repealing the AFSPA is lesser evil as national security cannot be compromised with.
If we look into the Act itself then we will see that certain sections are arbitrary in nature which should be amended and certain sections are such that provides adequate power for military powers to operate.
Provisions which are not arbitrary in nature-
Section 4(a) gives adequate powers to the army to maintain public order and catch a person who has been working in contravention to the law but the use of excessive force which might lead to death is an excessive power given to the army as it violates the fundamental of the citizen to live.
Section 4(b) gives adequate power to the army as they should be allowed to destroy any hideout or shelter which might facilitate an extremist attack.
Section (5) which say that the detainee should be sent to the nearest police station with the least delay through the act should specify the time period.
Provisions which can be treated as arbitrary in nature-
Section 4(c), (d) gives arbitrary powers to the army as it allows them to arrest any person without warrant and also search a premise without a warrant on mere suspicion. These give the military forces excessive rights to violate the Rights of people.
Section (6) also gives arbitrary power to the army as it states that no person shall be prosecuted or charged acting with respect to this act. This gives complete immunity to the army men whom they can easily misuse as we saw in the Malcolm Massacre and also the November 8th case.
These sections of the Act should be repealed to remove inequality.
Looking into the facts and critically analyzing the powers given to the army by referring to AFSPA we can come to a conclusion that there are certain powers given to the army which are arbitrary and should be amended or removed with immediate effect and certain powers are such that are needed by the military forces to maintain law and order in the disturbed areas. If these powers are not given to the army then they will be handicapped.
If people want to lead a peaceful and secured life then they should give special powers to Army as Army is only called in when the state police force is not able to maintain the law and order of the state and the Army can’t be expected to function properly within the ambit of powers given to police officers.
On the other hand, the Army should not be given excessive powers which will place the army in an arbitrary position and result in human rights violations. Reports and protests show the people have been tortured and their resentment over AFSPA.
It is recommended that the government should inculcate the recommendations given by the JS Verma committee to protect the women from sexual harassment and National Human Rights Commission(NHRC) should look into the human rights violation done in these conflict zones and report it to the government. The government should amend certain provisions of the Act to make it non-arbitrary and equal for everyone.
Formatted on February 14th, 2019.
2) UN websites and Reports.
3) Times of India.com
4) Reports by South-Aisa Human Rights documentation center.