Author: Hardik Bansal, Student at National Law University, Lucknow.
Armed Forces Special Powers Act (AFSPA), 1958 has been a controversial act over the years and has been criticized by different sections of the society since its enactment. This act gives unfettered and uncontrolled powers to people deployed in armed forces in certain areas to shoot and kill any person based on a mere suspicion that they may be a threat thus completely disregarding the individual’s right to life.The law enacted even gives immunity or protection to the armed personnel against any type of prosecution until very recently ,which in itself has raised a lot of controversy and protests especially among the armed forces or in particular the people forming a part of the Armed forces. AFSPA should be struck down either through a legislation or by a Supreme Court order because of its rampant misuse and gross violation of the tenets of the Constitution of India.
AFSPA has been enforced in different parts of India after it has come into force in different states of India like in almost all the North-eastern States, Punjab and also many times in the state of Jammu & Kashmir citing various different reasons such as to curb terrorism or other such reasons. Its arbitrary nature often results in it being called a kind of a bad and unfair law which has also been criticised by and large by the international community. People in the past as well as now after the abrogation of Article 370 have many times protested against this law especially because of the problems and incidents of human rights violation in the states like Kashmir, Nagaland, Manipur and other north-eastern states. Even after the abrogation of Article 370 ministry of Home Affairs can decide whether to impose AFSPA blatantly or not. There have been incidents like in Kashmir or Manipur where a large number of civilians were injured and many were killed and blinded for their whole life because of the use of pellet guns. This has often time resulted in people being much agitated of the government at the Centre than ever before because of their inability to take strict actions against such offences which are much outrageous in their nature and against the principles of democracy and right to equality which includes equality before law and several other articles related to right to freedom or right to life and personal liberty.
The Supreme Court in its decision in the case of Naga People’s Movement of Human Rights v Union of India although upheld the constitutional validity of AFSPA but laid down certain guidelines in the form of do’s and don’ts. The do’s and don’ts are a range of duties and responsibilities such as a person should not be detained for more period than what is required and then he should be handed over to the nearest police station and no force should be used on that person who is arrested except when he is trying to escape. The basic principles enshrined under constitution in particular Article 20 are being granted through a Supreme Court verdict.
Many people in particular several human rights activists and various groups have protested against such acts like Irom Chanu Sharmila often called the Iron Lady of Manipur who on 5 November 2000 began a hunger strike for the abolition of Armed Forces (Special Powers) Act, 1958. She ended the fast on 9 August 2016, after 16 years of fasting. Having refused food and water for more than 500 weeks (she was nasally force fed in jail), she has been called “the world’s longest hunger striker , yet no tangible change could be achieved. Apart from several other individuals and groups protesting in Manipur like Irom, there are several other ethnic groups which were and still are fighting against this archaic law which was made by the Colonial regime to curb the dissent during the Quit India Movement.
Article 14 of the Indian Constitution states that the State shall not deny to any person equality before law or the equal protection of law within the territory of India. In the present case AFSPA clearly violated the principles of equal protection of law and equality before law. It is arbitrary in the sense that it unjustly empowers the armed personnel to act as Judges and in an instant decide whether a person is liable or not and thus serve them punishment without trial which in turn leads to a lot of unjust tortures and extra judicial killings. The Constitution Bench in the case of Ajay Hasia v. Khalid Mujib Sehravadi held that it must, therefore, now be taken to be well settled that when Article 14 strikes at is arbitrariness because any action that is arbitrary must involve the negation of equality. Furthermore it is against the concept of the principles of natural justice which was also held to be falling under the scope of Article 14. Keeping in mind article 12 of the Indian Constitution that defines a State the one who enforces law, is expected to act having regards to the laws and statutes , hence failure of which would be considered as arbitrary and unfair was also something that was held in the case of Hatsun Agro Product Ltd., Chennai v. State of Tamil Nadu.In the present case the State is completely ignoring the constitution while making such laws thus making an unfair and an arbitrary act.
Article 20 talks about protection in respect of conviction for offences however in the present case when a person is simply killed based on a mere suspicion you are taking away his basic fundamental right to be convicted and tried and then coming out and deciding whether you have committed an offence in the first place or not. Under AFSPA your basic right of not being compelled to become a witness against yourself as per Article 20 is not being granted to you in the first place. Article 20(1) of the Constitution directs that no person shall be convicted of any offences except for violation of law in force at the time of the commission of the act charged as an offence. However, through AFSPA this charge is not even put on an individual in the very first place rather they are subjected to some form of a punishment.
Article 21 that talks about “Protection of Life and Personal Liberty and state that No person shall be deprived of his life or personal liberty except according to procedure established by law” is arguably one article that AFSPA so grossly violates a separate critique or a term paper can be made to talk about the same. It is so against basic human rights that if AFSPA is in effect in a particular place it is nearly impossible for an individual to ever think about leading a dignified life. Right to life guaranteed under Article 21 of the constitution include the Right to live with dignity. This right to live with dignity is also getting ignored due to AFSPA and the constant threat of me as an individual being tortured or subjected to extra judicial killings and other forms of punishment. Furthermore it has been held that International Conventions can also be regarded as fundamental rights if there are no contradiction and inconsistencies between them. The AFSPA violated not only the constitution of India but also several of the international conventions, treaties and declarations for instance the Universal Declaration of Human Rights which is very gravely violated among many other such conventions. In several cases of India it has been held that when the accused were subjected to custodial death some amount of compensation was to be given and the police or State was to be held liable. However because of AFSPA even this is something that has come to naught and such things are also often ignored and no respite is given rather before the Supreme Court Judgement and order with regards to the Manipur extra judicial killings there wasn’t even a need felt to inquire with regards to these things and issues.
Lastly talking about Article 22of the Indian Constitution it talks about protection against arrest and detention in certain cases. In most AFSPA related cases Article 22 and its various provisions are completely ignored and no attention is payed to them. For instance person detained in jail in violation of Article 22 (1) is entitled to writ of Habeas Corpus and issuing of such writs is also a fundamental right in the first place. No reason given for arrest of petitioner, circumstances not such that petitioner must have known. Detention held to be illegal. With regards to AFSPA most people aren’t even informed about the grounds of their arrest much less given the right to be presented before a magistrate or the court.
It is evident from all of the violations of various articles of the Constitution of India that AFSPA has to be struck down simply on the basic of it grossly violating the constitution of India even keeping in mind the various reasonable restrictions.
- Indrajit Barua v. State of Assam and Anr – In this particular case various provisions of AFSPA were challenged in the Guwahati High Court. The issue was basically 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. The court decided that the lack of precision to the definition of a disturbed area was not an issue hence any government official simply based on his whims and fancies can term a particular area as disturbed and blatantly impose AFSPA thus increasing the propensity of misuse happening.
- Naga People’s Movement of Human Rights v. Union of India – In this particular case the constitutionality of AFSPA was by and large challenged. The court upheld its constitutionality and said that the Parliament in all its way is competent to enact the act. Various reasons were given for the same however the blatant abuse of AFSPA in many regions was ignored and even though certain dos and don’ts were given they were not legally binding in nature.
- Major Sowmithri v. State of Assam and ors. And Harendra Kumar Deka v. State of Assam and Ors. – Both of these cases in a way improved the trust in the judiciary and set the precedent for the future cases that recognized the misuse of power through AFSPA. In both these cases invariably the issue was whether an armed force individual was doing his duty or misusing his power and in both the cases the court held that the latter was true and hence no defense in the garb of AFSPA can be taken about.
- Extra-Judicial Execution Victim Families Association vs Union of India – This particular case was a much-needed landmark judgment in the said matter. The petitioners, the Extra-judicial Execution Victims’ Families Association of Manipur, had compiled a list of “encounter killings” that had been carried out by the armed forces in Manipur. The short point before the Court related to the establishment of a Special Investigation Team to inquire into these killings. In this order, the Court made no observations on the formation of this SIT, but concluded that the petitioners did indeed have a “right to know” the truth under Article 21. As a result, while an inquiry can be carried out into the killings, the question of who is to carry it out remains open. The Court then examined the question of whether the Army enjoyed impunity for encounter killings under the AFSPA. This set forth the precedent that the erstwhile immunity enjoyed can now be questioned.
Since the constitution of India has come into force a lot of changes have taken place. We have moved from a regressive society still shackled by old colonial laws to a more progressive one at least through the standards of the Supreme Court. For instance, very recently in the case of Navtej Singh Johar v. Union of India homosexuality was accepted and section 377 was partially struck down through the means of Judicial Interventional recognizing various different fundamental rights. In this very case Article 2(3) of the International Covenant on Civil and Political Rights, was cited by the Supreme Court while declaring Section 377 unconstitutional The very same document makes it obligatory for all member nations to provide for remedies for violations of rights, even if they are carried out by people acting in official capacities. The Universal Declaration of Human Rights further states categorically that “no one shall be subjected to arbitrary arrest, detention or exile” and arbitrary being a keyword has already been explained time and time again and the correlation between AFSPA and arbitrary is a given.
With the courts evolving with time and recognizing and protecting more and more rights the need of the hour is to repeal AFSPA as soon as possible or at the very least change it to make it more accountable and more in line with human rights and the constitution by and large. The criticism is rampant and ever-increasing and with the rise in Journalism and judicial intervention sooner or later AFSPA would come to an end. This end can be by the legislature through removing AFSPA in phases or an immediate complete removal or a struck down by the court. Despite these 3 alternatives, the best alternatives remain the last two to end the misuse of power through AFSPA once and for all.
Through this project, I have aimed to analyze AFSPA, how it is constitutionally flawed, how and why it has been heavily criticized, how the court and its opinions with regards to AFSPA have evolved and why it is necessary to repeal it. Even if we argue that the Act is a necessity in the very least its cons and negatives far outweigh the said necessity thus causing such widespread criticism and rampant disapproval against the same. If the courts view AFSPA from the same lens as their recent judgment such as the Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. also called the privacy judgment or the Navtej Singh Johar Judgement the AFSPA would be completely removed or at least binding guidelines would come about with regards to the same.