India is popularly considered as a nation which gives due importance to the rights and liberties of its citizens. It has absorbed the ideals of democracy in its truest sense. The Government is indeed “by the people, to the people and for the people”. However, it is difficult to imagine that in a country like ours, exists a law which makes a mockery of the basic human rights. The recent violence in Kashmir triggered a nationwide debate on the validity of the Armed Forces (Special Powers) Act, 1958, popularly known as AFSPA. First introduced in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura, the act was later extended to Jammu and Kashmir in July 1990. It is a draconian law which gives unbridled powers to the armed forces. Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces is granted the right to shoot to kill based on mere suspicion that it is necessary to do so in order to “maintain the public order” in a “disturbed area”.
The Introduction to the Act says that it has been enacted to assist State Governments which were incapable to maintain internal disturbance. However the act has been widely criticized by national and international human rights agencies. When United Nations Human Rights Committee questioned the validity of AFSPA in 1991 under Indian Law and in light of Article 4 of the International Covenant on Civil and Political Rights, the Indian Govt. harped on the fact that it is necessary to prevent the secession of the North Eastern states. A brief recap of history will tell us that these states were forcefully made a part of the Indian Republic after 1947 by signing various agreements with a view of their strategic significance. These states could never be fully integrated in our country’s mainstream due to vast differences in social structure, culture, language, facial features and geographical remoteness. Furthermore, the government has been more or less indifferent towards the economic and social development of this region. Its main interest lied in exploiting its vast reservoir of natural resources. This bred secessionist tendencies in the people leaving in these regions leading to internal disturbances. AFSPA was introduced to curb this phenomenon and thus a vicious cycle has been initiated. The tyranny of armed forces compels people to demand freedom through violent means which in turns justifies the need for AFSPA.
After going through its provisions, one will realize how a six-section long statute can wreak havoc on innocent citizens. For instance, for the purpose of this act, the Governor or the Central Government can declare any region as a “disturbed area” under Section 3. No guidelines are laid down for exercising this discretion. It was held in Inderjit Barua v.State of Assam that “The Governor is empowered to declare any area of the State as “disturbed area’. It could not be arbitrary on ground of absence of legislative guidelines”. Thus, it was exempted from judicial scrutiny.
Under section 4, any officer of the army can shoot to kill in case of the commission or suspicion of the commission of offenses such as acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. A cursory reading of this section shows that none of these offences necessarily involve the use of force. There is no level of proportionality in the use of force and the offense as even a lawful gathering can suspected to be an unlawful one. To justify the invocation of this provision, the officer need only be “of the opinion that it is necessary to do so for the maintenance of public order” and only give “such due warning as he may consider necessary”.. Thus everything is left to the whims and fancies of the officer. This unchecked power has caused the armed forces to exploit and terrorize people. An international non-governmental organization, Human Rights Watch, has rightly termed AFSPA as a “tool of state abuse, oppression and discrimination.”
Section 5 states that after the military have arrested someone under the AFSPA, they must hand that person over to the nearest police station with the “least possible delay”. The phrase “least possible delay” has conveniently been left undefined and armed forces are at full liberty to exercise their discretion.
Section 6 provides immunity to the armed forces as it states that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government. This leaves people without a legal recourse as most of the victims are not able to get the requisite govt. sanction. Thus perpetrators of heinous crimes use this provision as a shield and move about freely in the society under the garb of their uniform.
A perusal of the provisions of AFSPA illuminates the extent of unchecked power in the hands of the armed forces. It is a stark violation of Articles 14, 21 and 22 of our Constitution. It has left the people in North East and Kashmir at the mercy of uniformed men by declaring these regions as “disturbed area”. Not only Indian Law but International Law has also been violated. AFSPA violates the Universal Declaration of Human Rights (the “UDHR”), the International Covenant on Civil and Political Rights (the “ICCPR”), the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra- legal and summary executions.
On a visit to Arunachal Pradesh, Home Minister P Chidambaram said the recommendations of the Justice Jeevan Reddy Committee and the Second Administrative Reform Commission on replacing AFSPA with a more humane law would soon be placed before the Cabinet. The Prime Minister Mr. Manmohan Singh said that amendments will be made to make it more humane. However, Ms. Irom Sharmila, a Manipuri poet, who will complete ten years of hunger strike demanding the repeal of the act said that nothing short of complete repeal of the act is acceptable. Her demand is very much valid as unspeakable acts of violence and torture have been committed under the garb of this law. For instance a woman was raped and brutally murdered. A bullet was found in her genitals. It was suspected that she is an insurgent. Similarly, a young teenage boy was arrested under the suspicion of him being an insurgent. He has not been seen or heard of since last 5 years.
After being a hot topic of national debate last year, the issue of AFSPA has been lost again. Armed Forces argue that AFSPA is an indispensable tool to counter insurgency in “disturbed areas”. However, it should not be forgotten that this problem is not limited to these regions alone. Thus keeping only these regions under this inhuman act is nothing but blatant discrimination. Furthermore, mere amending the act is insufficient as loopholes can always be found. Hence, the need of the hour is to repeal the Act. The Act which sounds like a nightmare is a reality for helpless people. Thus, if the sacred principles of human rights are to be guarded, AFSPA should be repealed.
India should not allow the future to be dominated by violent paradigm such as the continuing use of AFSPA. It is time India gives space for Democracy and its cherished values to reemerge instead of suppressing the genuine democratic voice of “We the people” which continues to remain excluded under the tyrannous rule.
 AIR 1983 Del. 514.
Aayush Kumar and Prateeti Goyal
Students, National Law University, Jhodpur
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]