This Article is written by Anuj Kumar Singh (currently pursuing a BALLB course from Shri Naval Navalmal Firodia Law College Pune)
Table of Contents
The armed forces special power act was enacted in 1958 with the aim to counter the insurgents’ operations in North-eastern states. It gives the special power to armed forces to maintain the public order in Northeastern states. It empowers the governor of the state as well the Central Government to declare the particular part of the state as ‘ Disturbed Area ‘ and the region is declared as disturbed for a continuous period of three months. It was initially applied to Assam and Manipur but later on, its ambit was increased to all remaining Northeastern states which include Nagaland, Meghalaya, Tripura, Arunachal Pradesh and Mizoram. The armed forces special power act comprises seven sections from Section 1 to Section 7. Due to unlimited power under these sections, there were a large number of civilian deaths had taken place under the umbrella of this act. The act is opposed by various human rights groups by stating that the act is hampering the fundamental rights of people. There is a question of Constitutional validity of this act as it is against Article 21 of the constitution and the Supreme court in various instances had done minor changes by providing some guidelines and iterated that there is a need to prosecute army officers under the Armed Forces special power act who are involved in fake encounters of civilians.
ENACTMENT OF AFSPA
The origin of AFSPA is found in a series of laws enacted in the 1940s. One such was the Armed Forces Special Power Ordinance of 1942 which was promulgated with a motive to suppress the ‘Quit India’ movement which bestowed special power to certain officers of the armed forces to deal with the emergency situation. This ordinance provided complete impunity to the officers. After that, there was a tradition in Indian society to acknowledge the British legal system as it is without any reasoning and the same lineage was followed with the AFSPA act. This leads to the enactment of the AFSPA act by the constituent assembly in 1948 with some criticism that was not taken into consideration. After that, the act was enacted in 1958 with seven sections and implemented in Assam and Manipur. Later on more states were taken under the ambit of this act.
The act was made with an objective to maintain peace in ‘disturbed areas’. There is not any clear definition of disturbed areas it is up to the circumstances where the intervention of armed forces is necessary. The act contains seven sections and these sections highlight the draconian nature of this act like-:
- Section 3 of the act says that if the governor of a state issues an official notification in the Gazette of India then the Central Government has the full authority to deploy armed forces and that area is declared as a ‘disturbed area’ for a continuous period of three months. The role of state government is minimised here as even if they are not in the favour of enactment of this act then also their opinion is overruled by Governor or Central Government like the example of Tripura in 1978 where the state government opposes the act but Central Government implemented it.
- Section 4 which is the real issue as it grants certain sorts of ‘ Special Power ‘ or might be ‘ Unlimited Power ‘ to armed forces who are operating in Disturbed Areas . These special power give them a license to take life , destroy public places , arrest anyone on suspicion and to search even without warrant. It gives the authority to armed forces to kill a person who violated a law and order. This includes assembly of five or more people and carrying of weapons or explosive substances. This section give license to destroy , license to search and even the license to kill to armed forces without any justification of their actions. No legal proceedings could be initiated against the armed forces working under AFSPA without the permission of the central government.
- Section 6gives the immunity to officers regarding their prosecution . The prosecution of army officers will start only when the central government permits the same.
During the 1990s there were a large number of Petitions filed in the Supreme Court as well as in Guwahati High Court ( which was the only High court for all seven states at that time ) These petitions challenged the constitutional validity of the Act. In 1980 Justice B.L. Hansaria of Guwahati High Court made a unique decision by ordering a stay on Section 4 (a) of the act, which gives them license to kill to armed forces. This decision was only a nine-day wonder as later on the Supreme Court had transferred the case from Guwahati High Court to Delhi High Court. On 3rd June 1983, the two-judge bench rejected the petitions on the ground that collective security would suppress individual rights and liberties. At this same time, there were separate petitions filed in the Supreme Court and the Supreme Court merged all the petitions with petitioners People’s Union for Democratic Rights, the Naga People’s Movement for Human Rights and the Human Rights Forum. The petitions remained unheard of for over one and a half-decade. Meanwhile, laws similar to AFSPA were also implemented in Punjab in 1983 and then in Jammu and Kashmir in 1990.
While the petitions were pending, according to facts there were around a dozen women were gang-raped by armed forces in a period of just 3 days in 1988 in the village called Ujainmaidan in Tripura. Similarly, in 1995 seven people were killed and 20 were injured in Kohima by armed forces under the unproven assumption that they were insurgents. There were umpteen fake encounters by the paramilitary forces under the umbrella of the AFSPA act.
A MISSED CHANCE TO CORRECT THE WRONG
In 1997 a five-judge bench of the Supreme Court was constituted to entertain the petitions named as Naga People’s Movement of Human Rights V/s. Union of India. The petitions contained various grounds for challenging the AFSPA act –
- The Parliament was not legislatively competent to enact the law as the term ‘ Public Order ‘ was under the domain of state legislatures.
- The Second one was that it was violating the fundamental rights of people granted under the constitution.
The judgement was not up to the expectation. The Apex Court rejected the petitions by propounding Article 355 which gives the power to the union Government to enact any law in any state where there is an ‘internal disturbance’. The court upheld all the sections of AFSPA on the sole ground that they were arbitrary and reasonable. Even the license to kill was also upheld despite knowing the fact that it would give unchecked power to officers to decide the necessity to take action. The court just put forward a memorandum of Procedure for the Armed forces which only remained on paper as it was not followed strictly. In 2012 a petition was again filed that no action was taken against the armed officers for fake encounters of 1,500 civilians in Manipur.
There was a battle between the people and the government in which the government won. The judgement of 1997 did not explain that how the fundamental right to equality, freedom and life of People are not violated by AFSPA. The Court acknowledged the legal force over the Right to life under Article 21 of the Constitution. The whole thing or scenario focused only on the written law without seeing its actual realities. All the sufferings of the people which includes fake encounters, gang rapes were not considered on the same ground that it was for public security. The Supreme Court guidelines of operation for armed forces only remained on paper as it is revealed in some reports that even the high ranked officers did not know about some of the guidelines. In 2005 after seeing the worst situations where a large number of women were raped and protest against the army were increasing like fire which includes the words that ‘ INDIAN ARMY RAPE US ‘ and ‘ INDIAN ARMY TAKE OUR FLESH ‘, the committee under Justice Jeevan Reddy recommended to repeal this act. The Government from 2015 started to lifting this act from some places of the Northeast like Meghalaya, Arunachal Pradesh and Tripura. The issue here is that this act is still in the statute and it is like a silent volcano. The court in 1997 got a chance to remove this parasite which is eating people’s alive but it didn’t work like that. The foremost need here is to remove this act which is proved unconstitutional by the sufferings of peoples as its implementation projects a clear picture of its wide misuse.
 indianarmy.nic.in , Indian Army , Government of India https://indianarmy.nic.in/Site/FormTemplete/frmTempSimple.aspx?MnId=Ahp0LbrhpqLeq0i/7ihdkg==&ParentID=xwy8H90VBi+RiBmmsPymqQ== ( last visited Oct 3, 2021)
 Naga People’s Movement of Human Rights V/s. Union of India , AIR 1998 SC 431
 Mha.gov.in , Ministry of Home Affairs , https://mha.gov.in/MHA1/Par2017/pdfs/par2014-pdfs/ls-251114/34.pdf ( last visited 4 Oct , 2021 )