Some things do not have a place in a civilised country. One of them is The Armed Forces (Special Powers) Act, 1958, hereinafter AFSPA.
AFSPA is unique in many respects. I cannot recall any other law made by Parliament which applies only to the Seven Sisters of the North East — Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. In 1990, Parliament passed a similar law that would apply to Jammu & Kashmir.
Blow to jurisprudence
It is a short Act: there is a section containing the definitions and three sections that constitute the essence of AFSPA. The contents of the three sections knock out every cherished principle of criminal jurisprudence.
Section 3 enables the governor of the state (one of the eight) or the Central government to declare the whole or part of the state as a “disturbed area”. Once it is so declared, armed forces can be used in such area “in aid of the civil power”.
“Armed Forces” means the Army, the Air Force, and the Central Armed Police Forces (CRPF, BSF, ITBP, CISF). No time limit has been prescribed for the continuance of the declaration: hence the Supreme Court stepped in and ruled in the case of People’s Movement of Human Rights that there should be a review of the declaration before the expiry of six months.
Once the armed forces are deployed, they will enjoy special powers conferred under Section 4. Not only superior officers, but any “non-commissioned officer” (and that includes a jawan) will enjoy such special powers. Here is a summary of the special powers:
1. Suppose an order is promulgated and assembly of five or more persons is prohibited. Anyone on the scene will be “acting in contravention of any law or order”. Normally, that person can be arrested. But, in a disturbed area, armed with special powers, the officer
may, if he thinks it is necessary, fire upon the person even to the causing of death.
2. The officer may destroy any shelter or structure from which armed attacks are likely.
3. The officer may arrest, without warrant, any person against whom the officer has a reasonable suspicion that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to make the arrest.
4. The officer may enter any premises, without warrant, to recover any person, property, arms or ammunition and may use such force as may be necessary.
Section 5 requires that any person arrested shall be brought to the nearest police station with the least possible delay. Note the differences from the normal criminal procedure. Not before a magistrate, but to a police station. Not within 24 hours, but with the least possible delay.
Immunity or impunity?
Section 6 gives immunity against prosecution. Such provisions are increasingly questioned because they encourage the armed forces to act
There is a widespread belief that even normal police powers are misused. Warrants are not obtained. Reasons are not recorded. Indiscriminate arrests are made.
Arrested persons are detained in police stations without any record and are produced before a magistrate long after 24 hours of arrest. Torture is not uncommon. Confessions are extracted.
Imagine the fears of the people in a disturbed area where even a newly-recruited jawan enjoys the “special powers”. Imagine also a situation where the jawan is working under stress — long hours, little rest, darkness, threat of a terrorist or mob attack etc. It is a made-to-order situation for an explosion, and that is what is happening — and what happened — where AFSPA is in force.
The demand to repeal AFSPA is not a demand of the separatists in J&K alone. It has resonance among a cross-section of the people in the eight states as well as across the country. It has the support of academics, lawyers, non-government organisations and human rights groups. The Justice Jeevan Reddy Committee recommended its repeal and the Justice J S Verma Committee underlined the “imminent need to review the continuance of AFSPA”. Ms Irom Sharmila has been on a fast for 14 years demanding its repeal.
Tried, but failed
As home minister, I was convinced that AFSPA deserved to be repealed. Many senior officers of the CRPF and BSF agreed that they could discharge their responsibilities just as well without AFSPA. I proposed repeal; the Ministry of Defence and the defence forces opposed repeal, and the defence minister was unwilling to overrule them. A compromise was struck to amend the law. The National Security Adviser and I drafted the amendments. The most important one was to replace the offending words in Section 4(a) by the words “use such minimum force as may be necessary”. Other amendments were regarding classifying arrests and searches into cases requiring a warrant and cases not requiring a warrant; and producing a person arrested before a magistrate within 24 hours excluding the time for travel.
Alas, there was no decision on bringing an amendment Bill. Hence, we continue to live with a draconian law and aid, unwittingly, the campaign of the separatists. We are objects of ridicule among those who value and uphold human rights.
If there is one action that can bring about a dramatic change of outlook from J&K to Manipur, it is the repeal of AFSPA, and its replacement by a more humane law.