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January 04, 2019 00:30:29 | BasitFarooq/ShariqaNaseer

AFSPA: Life within lawless law

“Maneka Gandhi v. Union of India (AIR 1978 SC 597) it was held that the procedure established by law has to be fair, just and reasonable, not arbitrary and fanciful; otherwise it’s not a procedure at all and also not satisfying Article 21.”

State, is an organization so wide and so important that it has every possible power to protect its integrity, unity and sovereignty. It is to be accepted that disturbance and causes of conflict do arise in states or what we refer to as “Areas of Conflict” and every state has to step forward for the earliest possible resolution of such problems. And this has been a part of state histories across the globe that the states have faced such problems and have used at times important and genuine means and methods in the form of laws to protect its organs and elements from getting Disrupted and destroyed but have at times used such bad and inhuman tactics and means which have left a scar on their history.

True that when a state is in danger from internal or’ external factors it has powers to try every possible way for the protection of its sovereignty and can pass laws which it may deem fit and feasible to control the situation and attain its objective of stability and same ground is used by the state for the justification of its activities during the time of disturbance. However, no situation can justify passing of such legislations which take away basic human rights such right to life from its citizens.

One of such example is the Armed Forces Special Powers Act known as the draconian and oppressive law in India which has its history long back to the colonial British Era, when in 1942 the British promulgated the Armed Forces Special Powers Ordinance to suppress Quit India Movement. Though the nation has achieved Independence and no longer is within the chains of slavery but the draconian laws still exist in the world’s largest Democracy. The Armed Forces Special Powers Act is in force in 6 states Including some north eastern states and state of Jammu and Kashmir, though it was recently revoked in state of Meghalaya, but the larger part is still in operation.

The first legislation of AFSPA in independent India was passed in 1958 when country faced insurgency in the Naga districts of Assam and the act extended to the state of Assam and Manipur. The formation of the United National Liberation Front in 1964 in Tripura which demanded independence from India and formation of other armed groups led to the expansion of the AFSPA to other states of north eastern India particularly full imposition in Assam and Tripura in the year 1972.

The imposition of the law at these times has been regarded as good step to prevent the integrity of the country, however the powers, procedures, and application of the law has been widely denounced as the Act is not only in violation of constitutional law (Article14,Article19, Article21,Article22) but also in violation of International law (ICCPR, UDHR, ICERD).

The Armed Forces Special Powers Act (AFSPA) is a legislation which empowers the central government and Governor of respective state and administrator of Union Territory’s to declare any area as “Disturbed” by passing notification in the official Gazette and thereby grant immense powers to the Armed Forces to maintain law and order situation in the respective disturbed areas as is provided in section 3 of the AFSPA Act, in force in North Eastern states and State of Jammu and Kashmir.

Till 1972, the power to declare any area as disturbed was only exercised by the state government but in 1972 the power was extended to central government which also became an area of conflict as to the central government will take away the power of state government, same happened when central government in Tripura declared Tripura as disturbed area even after being opposed by the state government.

The modern world polity and law is developing towards zero human rights abuses and full protection and promotion of human rights and India as a developing Nation both in terms of prosperity and legal system has to fulfil its greatest obligations towards its citizens and society at large by respecting the individual human rights. The AFSPA has been matter of controversy and debates since the very beginning, for the reason that the law is full of vagueness and ambiguity within its 8 sections.The AFSPA has 8 sections in respect of Jammu and Kashmir, while 7 sections in respect of North Eastern states. However, the level of unreasonableness and impunity for crimes is the same in both places.

Indian Constitutional Law and AFSPA as its violation; the provisions of the Act as in violation of Indian constitution and international law are full of ambiguity and vagueness:

  • Section 2 being a Definitional clause sets forth the definition of the Act, but leaves much of the concept vague and un-defined. Under part (a) in the 1972 version, the armed forces were defined as "the military and air force of the Union so operating". In the 1958 version of the Act the definition was of the “military forces and the air forces operating as land forces". Section 2(b) defines a “disturbed area" as any area declared as such under section 3. Section 2(c) states that all other words not defined in the AFSPA have the meanings assigned to them in the Army Act of 1950
  • Section 3 defines "disturbed area" by stating how an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State, but does not describe the circumstances under which the authority would be justified in making such a declaration. The provision declares the authority of the Centre, but does not clearly define a disturbed area nor does it state the conditions, circumstances or prudent grounds for the declaration of the part as disturbed.

Every law has to be fair, clear, reasonable and must follow and set out a reasonable procedure contrary to a bad law, which is full of ambiguity, unreasonableness and more over against the norm, Supreme law of the land- that is Constitution. Any law which is so vague and full of unreasonableness has no place to remain on the books of statutes and is to be declared unconstitutional. Every such law even if it remains in force and operation does necessarily invite criticism and challenges and same has been the line of events in the case of AFSPA.

  • The vagueness of the definition as provided in section 2 of the Act was challenged in the case law of IndrajitBarua v. State of Assam (AIR 1983 Del 513). The judgment of the court was quite interestingly ironic to the accepted ideology of masses, the Honourable court decided that the lack of precision to the definition of a disturbed area in the Act was not an issue because the government and people of India understand its meaning. The court went further by declaring that however, since the declaration that an area is a disturbed area depends on the satisfaction of the Government official, such a declaration that an area is disturbed is not subject to judicial review. So in practice it can be said that it is only in the hands of government to determine as per its own view and pyramid as to which area is to be declared disturbed, which in the realistic sense could prove or' has proved be to the dictum of power usage and could lead to malafide use of the power. This is not the only loophole of the Act but there is no provision in the Act which does prescribe as to for which duration the status of “Disturbed” area remains in force. The controversy was raised and discussed in the case law of the Naga People’s Movement of Human Rights v. Union of India (AIR 1998 SC 431) the Honorable Supreme Court held that the section 3 cannot be construed as conferring power without any time limitation. There should be periodic review after expiry of every 6 months of declaration. However, how far has this judgment been respected is open to every eye on ground that AFSPA still continues in Assam even after 60 years and in Jammu and Kashmir even after 20 years.
  • Section 4 of the Act provides the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer but these powers cannot be exercised by a jawan (private) person. The Section allows the armed forces personnel to use force for a variety of reasons. Under Section (4) (a) of the Act, a military personnel or even a non-commissioned officer of the force can fire, shoot to the extent of killing a person who has acted against law, to maintain public order. As per this provision, assembly of five or more people is prohibited, prohibiting the carrying of weapons, explosives or any things capable of being used as the same. The power so given under this provision is so wide and vague that just if the military personnel are of the opinion of any suspicion they can shoot a person to death. The provision is clearly in violation of the Right to life and personal liberty granted under Article 21 of the constitution that states “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The question comes as to if the military personnel shoot to kill just by the reason that they were of such an opinion, then the personal liberty of the people does come under great threat. This provision of the act is by no way a ‘due process of law’ which can be used as a defense against the deprivation of the right to life. The term ‘procedure established by the law’ is synonymous to ‘a due process’, since it was held in by the honorable supreme court in the case Maneka Gandhi v. Union of India (AIR 1978 SC 597) that the procedure established by law has to be fair, just and reasonable, not arbitrary and fanciful; otherwise it’s not a procedure at all and also not satisfying Article 21. It is in the light of the same judgment clear and visible that AFSPA is in total violation of Article 21 for it doesn’t follow any “procedure established by law” as is required in the terms of Article 21. The provision also provides for prohibition of Any assembly of more than five persons, but it is not defined as to which Assembly is prohibited. The question is there can be a peaceful assembly of more than five persons on road or' any assembly of relatives or' Members of family, are assemblies of these kind also to be prohibited by the use of force? The right for peaceful Assembly is guaranteed as a fundamental right by Article 19(1)(b) of Indian Constitution, keeping this provision of

AFSPA in view, there remains a question as to how far is the right protected than violated?

The right to privacy as declared by Supreme Court a fundamental right in the recent judgment Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors (2017 10 SCC 1) and also the fundamental rights with respect to prevention of arrest as guaranteed under Article 22 of Constitution of India have no respect in the spirit of the provisions of AFSPA. Under Section 4(c) the army can arrest anyone without a warrant, who has committed, is suspected of having committed or of being about to commit, a cognizable offense and can use any amount of force "necessary to affect the arrest”.

While, the following section 4(d) states that the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search. The picture is clear as to how valid and how constitutional the law of AFSPA is, the guidelines provided by the honourable Supreme Court, in the case Joginder Kumar v. State of U.P (AIR 1994 SC1349) and in D.K. Basu v. State of West Bengal (AIR 1997 SC 610) where in it held that an arrest should not be made on mere suspicion of a person’s complicity in the crime. The police officer must be satisfied about the necessity and justification of such arrest on the basis of investigation. It is to be noted that arrest without warrant, deciding the amount of force to be applied reasoning the suspicion and all, is capable of being undertaken by anyone in the arm from a commissioned officer to even the Hawaldar. This so vague and wide Conferment of power under the Act manifests nothing, but the arbitrariness of the law.

The most controversial provision is section 6 of the act which leaves no space for the victim for remedy against any crime committed by the forces, though action can be taken against forces but a long procedure is to be followed with much of the complexities. Section 6 provides impunity to the military officers. It establishes 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 section leaves the victims of the armed forces abuses without a remedy, while assures safeguards for the military.

Moreover, even in any case armed forces member is ever tried for any kind of abuse or wrong, then they are only tried in the martial courts, whose judgments are usually not published or made public. This sets out the image as to how badly the law has been framed, the objective of the law should have been to only curb the anti–national activities that too in a reasonable way but not to give a free hand to forces to commit the crimes by violating the basic human rights and control the way as they like. That is the reason why several cases of human rights abuses have remained unheard.

The more point of importance from the point of impunity of forces is section 19(b) of the Protection of Human Rights Act, 1993 exempts the armed forces from the purview of the National Human Rights Commission (NHRC), and even if human rights cases involving them are dealt with, they are done with after seeking a report from the central government.

International law and AFSPA

The most serious breach by the AFSPA in international law and Indian law is violation of right to life as is recognised by the International Covenant on Civil and Political Rights(ICCPR) 1966. The right to life is non-derogable right, it means that no situation, or state of emergency, or internal disturbance can justify the suspension of this right. The authorization to use lethal force under the Act is not compatible with article 6 of ICCPR, the authorization to use force is extremely wide, it vests military officers with the power to use lethal weapons, such as firearms, in all circumstances where an officer deems it appropriate. The use of lethal force against anyone within the disturbed area therefore falls within the personal discretion of the military officer(s) concerned.

Moreover, the Justification for the use of force, that is, maintenance of public order, is so vague and ill-defined that it effectively does not leave any scope to determine as to where the conditions for such usage are necessary. India is a party to ICCPR since 1979 and thus it is in grave violation of the same covenant, other provisions of ICCPR violated by AFSPA include the prohibition of torture, cruel, inhuman and degrading treatment (Article 7), the right to liberty and security of the person (Article 9), the  right not to be subjected to arbitrary or unlawful interference with one’s privacy, family, home or correspondence (Article 17), the right to freedom of assembly (Article 21), as well as Article 2  (3), which provides for the right to an effective remedy to anyone whose rights protected by the Covenant have been violated. The AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (hereinafter referred as UDHR), the International Covenant on Civil and Political Rights (hereinafter referred as 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 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The Universal Declaration of Human Rights is an important international instrument for basic human rights, AFPSA also violates the following provisions of UDHR, such as; Free and Equal Dignity(Article 1), non-discrimination (Article 2), Life, Liberty,Security of person (Article 3), No Torture (Article 5), Equality before the law(Article 7), Effective remedy (Article 8), No Arbitrary arrest (Article 9), Right property(Article 17).

Conclusion: Though the complete scrapping of the Act is not possible but it is to be kept in mind that the violation of rights of citizens can be justified in no situation. The Act fails to meet the provisions of Indian constitution and also international standards. Though, the country be the largest democracy in the world but the scars of human rights violations make it very small in giving respect to democratic values.

 

Authors are students of law at University of Kashmir

basitfarooq418@gmail.com

 

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January 04, 2019 00:30:29 | BasitFarooq/ShariqaNaseer

AFSPA: Life within lawless law

              

“Maneka Gandhi v. Union of India (AIR 1978 SC 597) it was held that the procedure established by law has to be fair, just and reasonable, not arbitrary and fanciful; otherwise it’s not a procedure at all and also not satisfying Article 21.”

State, is an organization so wide and so important that it has every possible power to protect its integrity, unity and sovereignty. It is to be accepted that disturbance and causes of conflict do arise in states or what we refer to as “Areas of Conflict” and every state has to step forward for the earliest possible resolution of such problems. And this has been a part of state histories across the globe that the states have faced such problems and have used at times important and genuine means and methods in the form of laws to protect its organs and elements from getting Disrupted and destroyed but have at times used such bad and inhuman tactics and means which have left a scar on their history.

True that when a state is in danger from internal or’ external factors it has powers to try every possible way for the protection of its sovereignty and can pass laws which it may deem fit and feasible to control the situation and attain its objective of stability and same ground is used by the state for the justification of its activities during the time of disturbance. However, no situation can justify passing of such legislations which take away basic human rights such right to life from its citizens.

One of such example is the Armed Forces Special Powers Act known as the draconian and oppressive law in India which has its history long back to the colonial British Era, when in 1942 the British promulgated the Armed Forces Special Powers Ordinance to suppress Quit India Movement. Though the nation has achieved Independence and no longer is within the chains of slavery but the draconian laws still exist in the world’s largest Democracy. The Armed Forces Special Powers Act is in force in 6 states Including some north eastern states and state of Jammu and Kashmir, though it was recently revoked in state of Meghalaya, but the larger part is still in operation.

The first legislation of AFSPA in independent India was passed in 1958 when country faced insurgency in the Naga districts of Assam and the act extended to the state of Assam and Manipur. The formation of the United National Liberation Front in 1964 in Tripura which demanded independence from India and formation of other armed groups led to the expansion of the AFSPA to other states of north eastern India particularly full imposition in Assam and Tripura in the year 1972.

The imposition of the law at these times has been regarded as good step to prevent the integrity of the country, however the powers, procedures, and application of the law has been widely denounced as the Act is not only in violation of constitutional law (Article14,Article19, Article21,Article22) but also in violation of International law (ICCPR, UDHR, ICERD).

The Armed Forces Special Powers Act (AFSPA) is a legislation which empowers the central government and Governor of respective state and administrator of Union Territory’s to declare any area as “Disturbed” by passing notification in the official Gazette and thereby grant immense powers to the Armed Forces to maintain law and order situation in the respective disturbed areas as is provided in section 3 of the AFSPA Act, in force in North Eastern states and State of Jammu and Kashmir.

Till 1972, the power to declare any area as disturbed was only exercised by the state government but in 1972 the power was extended to central government which also became an area of conflict as to the central government will take away the power of state government, same happened when central government in Tripura declared Tripura as disturbed area even after being opposed by the state government.

The modern world polity and law is developing towards zero human rights abuses and full protection and promotion of human rights and India as a developing Nation both in terms of prosperity and legal system has to fulfil its greatest obligations towards its citizens and society at large by respecting the individual human rights. The AFSPA has been matter of controversy and debates since the very beginning, for the reason that the law is full of vagueness and ambiguity within its 8 sections.The AFSPA has 8 sections in respect of Jammu and Kashmir, while 7 sections in respect of North Eastern states. However, the level of unreasonableness and impunity for crimes is the same in both places.

Indian Constitutional Law and AFSPA as its violation; the provisions of the Act as in violation of Indian constitution and international law are full of ambiguity and vagueness:

Every law has to be fair, clear, reasonable and must follow and set out a reasonable procedure contrary to a bad law, which is full of ambiguity, unreasonableness and more over against the norm, Supreme law of the land- that is Constitution. Any law which is so vague and full of unreasonableness has no place to remain on the books of statutes and is to be declared unconstitutional. Every such law even if it remains in force and operation does necessarily invite criticism and challenges and same has been the line of events in the case of AFSPA.

AFSPA in view, there remains a question as to how far is the right protected than violated?

The right to privacy as declared by Supreme Court a fundamental right in the recent judgment Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors (2017 10 SCC 1) and also the fundamental rights with respect to prevention of arrest as guaranteed under Article 22 of Constitution of India have no respect in the spirit of the provisions of AFSPA. Under Section 4(c) the army can arrest anyone without a warrant, who has committed, is suspected of having committed or of being about to commit, a cognizable offense and can use any amount of force "necessary to affect the arrest”.

While, the following section 4(d) states that the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search. The picture is clear as to how valid and how constitutional the law of AFSPA is, the guidelines provided by the honourable Supreme Court, in the case Joginder Kumar v. State of U.P (AIR 1994 SC1349) and in D.K. Basu v. State of West Bengal (AIR 1997 SC 610) where in it held that an arrest should not be made on mere suspicion of a person’s complicity in the crime. The police officer must be satisfied about the necessity and justification of such arrest on the basis of investigation. It is to be noted that arrest without warrant, deciding the amount of force to be applied reasoning the suspicion and all, is capable of being undertaken by anyone in the arm from a commissioned officer to even the Hawaldar. This so vague and wide Conferment of power under the Act manifests nothing, but the arbitrariness of the law.

The most controversial provision is section 6 of the act which leaves no space for the victim for remedy against any crime committed by the forces, though action can be taken against forces but a long procedure is to be followed with much of the complexities. Section 6 provides impunity to the military officers. It establishes 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 section leaves the victims of the armed forces abuses without a remedy, while assures safeguards for the military.

Moreover, even in any case armed forces member is ever tried for any kind of abuse or wrong, then they are only tried in the martial courts, whose judgments are usually not published or made public. This sets out the image as to how badly the law has been framed, the objective of the law should have been to only curb the anti–national activities that too in a reasonable way but not to give a free hand to forces to commit the crimes by violating the basic human rights and control the way as they like. That is the reason why several cases of human rights abuses have remained unheard.

The more point of importance from the point of impunity of forces is section 19(b) of the Protection of Human Rights Act, 1993 exempts the armed forces from the purview of the National Human Rights Commission (NHRC), and even if human rights cases involving them are dealt with, they are done with after seeking a report from the central government.

International law and AFSPA

The most serious breach by the AFSPA in international law and Indian law is violation of right to life as is recognised by the International Covenant on Civil and Political Rights(ICCPR) 1966. The right to life is non-derogable right, it means that no situation, or state of emergency, or internal disturbance can justify the suspension of this right. The authorization to use lethal force under the Act is not compatible with article 6 of ICCPR, the authorization to use force is extremely wide, it vests military officers with the power to use lethal weapons, such as firearms, in all circumstances where an officer deems it appropriate. The use of lethal force against anyone within the disturbed area therefore falls within the personal discretion of the military officer(s) concerned.

Moreover, the Justification for the use of force, that is, maintenance of public order, is so vague and ill-defined that it effectively does not leave any scope to determine as to where the conditions for such usage are necessary. India is a party to ICCPR since 1979 and thus it is in grave violation of the same covenant, other provisions of ICCPR violated by AFSPA include the prohibition of torture, cruel, inhuman and degrading treatment (Article 7), the right to liberty and security of the person (Article 9), the  right not to be subjected to arbitrary or unlawful interference with one’s privacy, family, home or correspondence (Article 17), the right to freedom of assembly (Article 21), as well as Article 2  (3), which provides for the right to an effective remedy to anyone whose rights protected by the Covenant have been violated. The AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (hereinafter referred as UDHR), the International Covenant on Civil and Political Rights (hereinafter referred as 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 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The Universal Declaration of Human Rights is an important international instrument for basic human rights, AFPSA also violates the following provisions of UDHR, such as; Free and Equal Dignity(Article 1), non-discrimination (Article 2), Life, Liberty,Security of person (Article 3), No Torture (Article 5), Equality before the law(Article 7), Effective remedy (Article 8), No Arbitrary arrest (Article 9), Right property(Article 17).

Conclusion: Though the complete scrapping of the Act is not possible but it is to be kept in mind that the violation of rights of citizens can be justified in no situation. The Act fails to meet the provisions of Indian constitution and also international standards. Though, the country be the largest democracy in the world but the scars of human rights violations make it very small in giving respect to democratic values.

 

Authors are students of law at University of Kashmir

basitfarooq418@gmail.com

 

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