A

Presentation

on

Armed Forces (Special Powers) Act, 1958

PRESENTATION

BY

MAJ. GEN. NILENDRA KUMAR

DIRECTOR

AMITY LAW SCHOOL, NOIDA

ON

FEBRUARY, 2012

Is there any alternative

to

Armed Forces (Special Powers) Act, 1958

India attained

its

independence essentially

by

peaceful means

and

non violence

It propagated Panch Sheel and the doctrine

of peaceful co-existence.

The Indian Constitution is basically federal in

Form

However, the same did not eliminate

unrest, hatred violence and threat to the

sovereignty of the country.

RELEVANT CONSTITUTIONAL PROVISIONS

However, not to be forgotten

Article 52 - There shall be a President of

India.

53(2) – The Supreme Command of the

Defence Forces of the Union shall be vested

in the President and the exercise thereof

shall be regulated by law.

EMERGENCY PROVISIONSEMERGENCY PROVISIONS

Article 355. Duty of the Union. It shall be

the duty of the Union to protect every State

against external aggression and internal

disturbance and to ensure that the

Government of every State is carried on in

accordance with the provisions of this

Constitution.

Article 352 relates to the power of the

President to make a proclamation of

emergency if he is satisfied that the

security of India is threatened by war or

external aggression.

SUBJECT MATTER OF LAWS MADE BY

PARLIAMENT AND BY THE STATE

LEGISLATURES

Authority over use of the armed forces

DIVISION OF RESPONSIBILITYDIVISION OF RESPONSIBILITY

Seventh ScheduleList 1– Union List

1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation.

2. Naval, military and air forces, any other armed forces of the Union.

2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.

List II – State List

1. Public order (but not including [the use of any naval, military or air force or any other armed force of the Union or of any contingent or unit thereof] in aid of the civil power).

2. Police (including railway and village

police) subject to the provision of Entry 2-A of List I.

Thus it would be significant to note

the duty of the Union in the matters of

national security and the clear cut

demarcation in the powers of the

Parliament and State Legislatures in this

regard.

Having regard to the pluralistic nature of Indian polity; multiplicity of religions & languages, ethnic divisions and lack of accommodation in political thoughts, economic disparities and geographical imbalances may at times give rise to unresolved aspirations. Further, the State may fail to bring about peaceful and orderly settlement amongst the society.

A failure of the State administration to

maintain law and order may develop into

a situation, being ‘disturbed’ and

‘dangerous’, where the police and other

agencies available are not able to control

the extraordinary situation.

The ultimate force available with the

Union is its armed force. Hence,

deployment of the armed forces of the

Union is the final choice.

LEGAL DIFFICULTIESLEGAL DIFFICULTIES

1. The armed forces personnel have no statutory authority to be deployed or to act within the country against own citizens.

2. A State Government has no authority to directly summon and deploy the military which is under the executive domain of the Union.

3. Military personnel need to be suitably protected for actions taken by them in discharge of official duties.

Hence, the need for the AFSPA

Main purpose of AFSPA

1. Declaration about disturbed and dangerous situation when, by whom and how.

2. Powers to NCOs and above.

3. Duty of the Armed Forces.

4. Protection given to them.

SECTION 3SECTION 3

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.

SECTION 4SECTION 4

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.

SECTION 5SECTION 5

Arrested persons to be made over to the police –Any person arrested andtaken into custody under this Act shall be made over to the officer in charge ofthe nearest police station with the least possible delay, together with a reportof the circumstances occasioning the arrest.

SECTION 6SECTION 6

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.

Test of validity

of

AFSPA

Naga People’s Movement of Human Rights

V

Union of India; AIR 1998 SC 431

DECISIONDECISION

1. Act is not a colourable legislation or fraud on the Constitution.

2. Powers under Sections 4 and 5 are not arbitrary and unreasonable.

CRITICISMCRITICISM

1. Retained for decades

2. Draconian powers to military. Use of force to the extent causing of death.

3. HR violations.

4. Sanctions for prosecution not given.

RESTRICTIONS BY SUPREME COURT

1. Periodic review. Not to operate beyond six months.

2. Orders of Central Government to grant or withhold sanction to prosecute are subject to judicial review.

3. Do’s and Don’ts to be strictly followed.

4. Compensatory Justice – compensation to the victim.

Operations by the Troops facilitated

1. Retention of weapons and explosives captured.

2. Interrogation allowed.

Prime Minister’s assurance in December

2006 about changes in the Act.

He promised a relook at the Act to see if it

needed to be retained if it could be turned

more humane.

Justice Jeevan Reddy Committee Report

Its report and recommendations are yet

to be made public.

Act has remained in the Statute Book for last

five decades. Both during Congress and

non Congress Governments.

There is no option but to retain the AFSPA

A way forward is to humanise AFSPA by

framing of Rules and executive steps.

EXECUTIVE MEASURES

HOW TO HUMANISEHOW TO HUMANISE

Use the tool of court of inquiry for prompt and

transparent investigations

1. Obligatory to convene inquiry in all cases of civil deaths, grievous injury or allegations sexual harassment etc. Do so within 72 hours.

2. Co-opt a civil official.

3. Woman officer to be a member/in attendance.

4. Venue to be easily accessible to local public.

Video tape all military missions to achieve

greater transparency and accountability.

Incentives/awards for capturing militants

alive. Hopefully, this may cut down

number of those killed.

ALLEGATIONS OF FALSE ENCOUNTERS

AND FORCED DISAPPEARANCE

Allow local NGOs to lodge complaints

A civil magistrate to accompany each

contingent of Army. If not feasible,

record reasons. This would bring in

transparency and independent check

Decision to accord or deny sanction in three

months.

PROTECTION OF HUMAN RIGHTS ACT

NHRC may be allowed to refer and seek

reports.

All complaints against Army personnel

pending in police stations should be

thoroughly probed in a time bound

manner.

Due publicity of cases where disciplinary

actions have been taken against military

personnel for human rights personnel.

Frame clear guidelines to lay down policy

about according/denial of sanction for

prosecution under Section 6.

AFSPA has no provisions relating to rule

making powers.

Recommended

Framing of Rules

RULES TO LAY DOWNRULES TO LAY DOWN

1. Definition of armed forces.

2. Difference between ‘disturbed’ and ‘dangerous’ situations.

3. Threshold level for above.

4. Warning before opening fire – Language, duration, means and caution.

5. Recording of the opinion of the officer of the designated category.

NEED OF THE HOUR

Urgent discussion on steps to change

working of AFSPA would be a pragmatic

move in resolving an issue of major

national concern.

THANKS