June 25, 2017

Armed Forces (Special Powers) Acts, 1958- Draconian Law or Necessity

The Armed Forces (Special Powers) Act, 1958 came into force on September 1^st, 1958. On tracing the history of this Act, it is found that the Armed Forces (Special Powers) Ordinance was promulgated by the then Viceroy of India, Lord Linlithgow to curtail the Quit India Movement. Under the Disturbed Areas (Special Courts) Act, 1976, once an area is declared as disturbed, the AFSP Act, 1958 is enforced in that area, giving the army special powers. This Act is enforced in 7 North- East states and Jammu and Kashmir. The Act was withdrawn from Punjab in the year 1997 and from Chandigarh in the year 2012. It gives immunity to the armed forces from legal proceedings. In order to bring stability in an insurgent area, the armed forces have to operate in uncongenial surroundings. These forces operate in unfavorable situations like for instance the population is not co-operative or setting up training and base camps in the forests, hills or any other place where there is a risk of insurgency or deterioting law and order situation at any moment. They have to carry out their duties day in and day out in such areas to combat anti- national operations avoiding collateral damages and life of the civilians.

It goes without saying that an army personnel has to be prepared to deal with perceived adversary which does not give time to take orders from authorities otherwise they would be long dead. This necessitates of granting certain special powers to them. The Act is in existence for the above enumerated reasons and many more. The powers given to them can be summarized as-

Section 4 of the Act provides to shoot or fire any person who acts against the law only after “such due warning as he may consider necessary”.
They are empowered to destroy the armed gang’s hideout or any such shelter and arrest anyone without warrant who has committed or suspected of committing a cognizable offence.
They can enter or search any premises to arrest or recover a wrongfully restrained person or stolen property or arms, ammunitions or explosive property which has been kept unlawfully in such premises.
Section 5 provides that after immediate arrest under this Act, he has to be handed over to the Officer in charge at the nearest police station.
Section 6 offers protection by forbidding any prosecution or legal proceedings to be instituted against them with the previous sanction of the Central Government.
Once the government declares an areas as “disturbed”, it is not subject to judicial review.

Let’s have a look over few case laws followed by instances putting a clear picture of the scenario that the controversial law has created-

Kinjinbou Liangmei vs. Union of India and ors ^[1]

In this case, Mr. Kinjinbou Liangmei, the petitioner prayed for compensation to be paid for the death of his son Mr. S. Philip. Philip was a class 7^th student who was arrested by the three Assam riffles on 7^thMay, 1992 They slapped, blind folded, undressed, hands were twisted and tied behind, several boot kicks, beaten with lathi, burnt his chest with cigarette butts, made him stand the whole night with scanty food till 11^th May, 1992 before they handed him over to Kangpokpi the Police Station. They violated Section 4 and 5 of the AFSP Act, 1958 and failed to protect the personal liberty of the citizen as they are the custodian of law and order.

Smt. Khumanthem Ongbi Pangabam Ningol Ibemhal Devi vs. State of Manipur and ors. ^[2]

The petitioner is the mother of Jayendra Singh who was arrested by the personnel’s of 16^th Sikh regiment along with his friend Sapam Boby on 27^th January, 1998. The next day they were handed over to the Singjam Police Station along with the report alleging they are member of the banned UNLF. On 1^st February, 1998 the Jayendra Singh died in hospital due to rental, lung and heart failure. The post mortem revealed it was due to blunt multiple force on the body. He was given electric shock to his private parts and beaten with a stick on his buttock by the army personnel.

Smt. Kangujam Ongbi Thoibi Devi vs. State of Manipur and ors. ^[3]

In the instant case a 15 year old boy named Ojit Singh was succumbed to custodial death. He was arrested on 16^th February, 1997 and handed over to the police on 19^th February, 1997. He confessed to be an active member of PREPAK. He tried to escape and hit against a laterite wall and when he picked himself up he again fell in a ditch. He was given medical treatment and admitted to JN Hospital on 20^th February, 1997 where he died. The post mortem report reveals that there were 16 external injuries and serious internal injuries like congested heart and small hemorrhagic spots on different surface of pericardium and heart. Due to carelessness and not affording proper treatment resulted in the custodial death of Ojit Singh.

This Act has been criticized by several sections of society for being a draconian law. The army personnel’s are using excessive force than what they are granted, thereby mocking at our democratic process. The purpose of AFSPA is to restore normalcy in the disturbed areas but has failed miserably. More and more resentment and complaints for its withdrawal coming forward by the people and various committee. Numerous protests and mass campaigns are a result of grave human rights violations, rape, torture, murder, raids, sexual harassments, extortion, and wrongful confinement of the citizens in those areas. Irom Sharmila, also known as Iron Lady of Manipur began her fasting on 5^th November, 2000. This was a sign of protest for killing 10 people who were waiting at the bus stop of Malom by the Assam Riffles soldiers. This cold blooded incident made her fast for 16 years where she demanded speedy inquiry into the tragic incident and removal of the Act in the state. Out of several atrocities by the army one of the sensational issue was of the Thangjam Manorama case. She was picked from her home at night by the Assam Rifles. After torturing and raping, later they shot 6 bullets into her body. Her mutilated body was discovered 3kms from her home. There was widespread protest in which 33 naked women shouted before the headquarters of the Assam Riffles- “Indian Army rape us too”. This short piece of legislation legalizes any perpetration by the armed forces functioning in the states. Explicit immunity is thus assured leading to gross violation of human rights and the likes. ^[4] In 2012, a PIL was filed by the Extra Judicial Executions Victims Family Association to inquire into nearly 1700 extra judicial killings in the name of encounter. After getting involved in these crimes the army takes shelter under the umbrella of the controversial act.

The Supreme Court on April 18^th, 2017 while hearing three rape cases against the armed forces said, “Do you have people in the army who rape? It is an alleged gang rape in uniform – an aggravated form of crime.” In one of the cases two soldiers raped a 13 year old girl on 2003 where the army men gave a clean chit to their men and state government denied to order a probe to which the Court said to Manipur government, “Is there a tacit understanding between you (the state) and them (the army) that you won’t enter their area to conduct any sort of probe? Here is a 13-year-old girl who worked in a rubber farm. There was no allegation that she was an insurgent. Two people come and rape her. She narrates her ordeal to her mother and a sister and then commits suicide. Have you decided that let army come and rape anyone, what can we do?” and the other case was of Thangjam Manorama. ^[5]

It is to be brought into notice that to tackle the insurgency or terrorists the government has several acts in existence such as the Unlawful Activities (Prevention) Act, 1967, TADA, 1985. The provision to kill, shoot, search, arrest violates Article 21 of Constitution (Right to life). The arbitrary use of power instead of bringing down the insurgency rates, it has promoted brutal crimes. The protection from legal proceeding is not in conformity with the principles of criminal justice system. It is due to non-application of the law, the armed forces are their own judge and jury. It should be left on the judiciary to determine an act as frivolous or not which will further act as a check on the misuse of the powers given to the army. There is no definition of “disturbed area” and once declared it is not subject to judicial review. This definitely need to be repealed. People have accused the army for not adopting safeguards while implementing the act. Proper guidelines regarding the safeguards has to be laid down. The state has the right and duty to protect its citizens and the country from the insurgents but at the same time it doesn’t have the right to take away the life or violate a human right unlawfully. Rethinking and restructuring of the act is necessary for achieving its goal.

References

By:

Snigdha Panigrahi

4^thyear, B.A.LL.B (Hons.)

University Law College.