INTRODUCTION:
The Armed Forces (Special Power) Act, 1958
(AFSPA) was passed by the Parliament in September, 1958. While introducing the
Bill in the Parliament in August, 1958, the then Home Minister Shri G.B. Pant
had justified its necessity to tackle the menace of militant Nagas, who having
formed the Naga Federal Government (NFG) under A.Z. Phizo had declared
themselves as independent1. The law was enforced, initially, only
for six months. Since then, it has been applied in many other states, where
militants have taken up arms against the State and currently, in addition to
Manipur and the Jammu and Kashmir, it is enforced in Assam, Nagaland, Tripura
and Arunachal Pradesh2. It was also used in Punjab when the state
was engulfed by the Sikh Khalistani movement. The AFSPA was invoked in Kashmir
on 5 July 1990. Subsequently, Jammu was also brought under this act on August
11, 1990 temporarily and then re-imposed in 2001 where it still remains
operative. The AFSPA was applied in Manipur in September, 1980 and since then
it has remained applicable. It is also unfortunate that even the government has
made no efforts to educate the public about the true nature and necessity of
retaining the AFSPA and that’s why the Act has become a political football and
thus this Act seems like an arbitrary Act which has no rules and regulations
and politician can use this as they want. Agitation approach adopted by some
organizations in Jammu and Kashmir and Manipur against AFSPA. Consequently,
anti-national elements in these states, who are mostly the collaborators and
sympathizers of militancy and some disgruntled politicians, have started
exploiting the situation.
STATUTES OF AFSPA, 1958
Section 4(a) of Armed
Forces (Special Power) Act, 1958: Section 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 the State 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 more persons or the carrying of weapons or of things
capable of being used as weapons or of fire-arms, ammunition or explosive
substances;
COMMENT:
The above mentioned provision of Armed
Forces (Special Power) Act, 1958 passed by Indian Parliament, the largest
democratic nation of the world, clearly shows dictatorship which is not
suitable to country like India, because Indian Constitution guarantees “Right
to Life and Liberty” under Art.21 and Art.14 talks about “Equality before Law”.
This Act i.e. AFSPA gives right to the concern officials to fire upon the
public to maintain public order.
Is it possible to maintain peace and orderly life by killing
and arresting to public unlawfully?
No, absolutely not.
There are some States like Albania,
Australia, Belgium, Canada, France, Greece, Mexico, South Africa and United
Kingdom3 that are abolishing the ‘death penalty’ also meaning
thereby they are giving a chance to live even to the criminals while we are
making laws to kill our people itself, and of course it is a very unfortunate
part of our nation because we are not following our Constitution….regard with
this statement in the most eminent case in Indian Judiciary Kesawananda
Bharti v. State of Kerala4 Hon’ble Supreme Court
furnishes the best illustration of judiciary’s zeal to incorporate the
principles of natural law in the constitutional jurisprudence. Adopting the 20th Century
revivalist approach to the natural law philosophy, the Hon’ble Supreme Court
ruled that fundamental rights are not absolute and immutable but they are
relative in nature and changeable in order to build a ‘just’ social order5.
The Supreme Court affirms the doctrine of basic structure in Minerva
Mill Ltd. v. Union of India6. But with the decision in Maneka
Gandhi v. Union of India7, the scope of natural justice
principle now extends even to purely administrative actions.
By the above contentions we can say that we are not going to
follow the natural justice with regard to the AFSPA because the natural law
philosophy occupies an important place in the realm of politics, law, religion
and ethics from earliest times. It must be noted that the principle of natural
law find a prominent place in the Constitution of India8 which
plays important role in promoting peace and justice and protects public against
injustice, tyranny and misrule.
Thus by the above arguments and the views
of the Hon'ble Supreme Court and scholars, we can see that the natural justice
is not there in the case of AFSPA. Law commission has submitted its 262nd Report
regarding capital punishment and has mentioned that capital punishment except
rarest of the rare cases should not be allowed while AFSPA is totally arbitrary
Act and there is no consideration of it.
PRACTICAL EFFECT OF SEC.4 (a) OF AFSPA, 1958
Just imagine for a moment that if you’ll
be locked in your house by sunset then how you will feel. This is the basic
topic of discussion and we cannot imagine the situation of Kashmir where people
are bound to live in their respective house only and if they’ll be unable to
follow the same, they’ll be killed. Meaning thereby there is no Right to Life
and Liberty to the people who are living in the locality where AFSPA is
applicable.
The officials of AFSPA do very crucial and
harsh duty there because they use to vex the local people by entering in their
house and search the house and thus they use to vex the females of the house
and beat brutally to the males of the family. There are some cases in which
rape cases also were found but could not be registered due to fear because they
have to leave among these officials. Thus we can say that this is the blot to
the Democracy.
Section 4(c) of Armed
Forces (Special Power) Act, 1958 states as 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.
COMMENT:
Thus the AFSPA is giving special power
which is continuously being misused by the concern officials and the forces. As
we have seen under section 4 (c) that any person can be arrested just because
of the reason of doubt whereas our Constitution provides specific rights to the
citizen under Part III of The Constitution of India, 1950. We can see the
entire Act is giving special power to officials and on the other hand it gives
some guideline also which has never been followed by authorities as well as
officials.
AFSPA AS DRACONIAN LAW:
AFSPA is an act which is responsible for the increasing crimes and
all evil in the disturbed states or those states where AFSPA is applicable.
These Armed Forces misuse their power and authority given by the aforesaid Act
to protect the people who are suffering from terrorism or revolution. But they
use to go in the home of innocent people and misbehave with the male members of
the home and play with the dignity of the women. They kill the innocent people
and declare them terrorist. They rape women and do so many criminal acts which
can’t be done by the criminals also.
1. Thangjam Manorama Case:
Thangjam Manorama was a Manipuri woman who
on July 10, 2004, was picked up from her home by the Indian paramilitary unit,
17th Assam Rifles on uncertain allegations of being associated
with People's Liberation Army. The next morning, her bullet-ridden corpse
was found in a field. An autopsy revealed semen marks on her skirt
suggesting rape and murder.
The failure to assign culpability in the alleged rape and murder
case led to widespread and extended protests
in Manipur and Delhi.
Five days after the killing, around 30 middle-aged women walked
naked through Imphal to the Assam Rifles headquarters,
shouting: "Indian Army, rape us too... We are all Manorama’s
mothers. Padma Shree author M.K. Binodini Devi returned her
award in protest. Protests have continued in 2004 and over the years.
In early 2012, the Justice Varma committee includes measures for
reviewing AFSPA as part of a set of steps to reduce violence against
women; these measures are partly been attributed to the protests involving
Manorama.
Recently, in December 2014, in a case filed at Supreme Court of
India, the apex court told to government to pay a compensation of Rs. 10 lakhs
to Manorama's family. Case is accepted for hearing in the court. It was seen as
one of the partial victory, but the doubt remains the same as even in past,
compensations were declared for victims of AFSPA, but courts could not spell
any judgement against culprits for awarding punishment9.
2. Recent Case in Karbi
Anglong, Assam
On 6th April, an Army regiment entered a village in Karbi
Anglong, and molested and injured many women. Around eight jawans carried
off a 15 year old girl into the forest; when her mother and another woman
rushed to rescue her, the jawans raped all three. An ICDS worker who tried
to intervene was also injured, and a three-year-old baby was hit with the butt
of a rifle. Although protests have been ongoing in Karbi Anglong ever
since the rape, none of the jawans have been arrested – the police say they
cannot make an arrest because of the AFSPA. Instead, the victims are being
pressurized and terrorized into withdrawing their complaints.
The Justice Verma Committee had observed, “Systematic or
isolated sexual violence, in the process of Internal Security duties, is being
legitimized by the Armed Forces Special Powers Act, which is in force in large
parts of our country.” The Verma Committee had recommended that the continuance of
AFSPA in the law books be reviewed. The Committee had also recommended that the
requirement of central government sanction for prosecution of armed forces
personnel should be specifically excluded when a sexual offence is
alleged. Not only that, the Verma Committee had recommended that
complainants of sexual violence in conflict areas must be afforded witness
protection, so that they can give witness without fear of reprisal by the Army
against their families; and special commissioners should be appointed in
conflict areas to monitor and prosecute for sexual offences.
There are so many other incidents which are very shameful to us
and blot to the Democracy and our Constitution also which provides equality
before law. But here there is no right to equality and equality before law as
given under Article 14.
RELEVANCY OF AFSPA:
There is no relevance of AFSPA in Indian Law and Order because of
the reason that AFSPA is having some specific discretionary power in some
specific situation which has been misused by AFSPA so many times, some of these
events have been mentioned above.
OTHER LAWS TO CONTROL INTERNAL DISTURBANCE
Section 129 and Section 130 of Code of Criminal Procedure, 1973
allows to call the government take help of the Armed Forces in case of internal
disturbances. So we can see that there is no need of other laws like AFSPA to
be imposed upon the civilians in the name of their security which harass the
civilians.
We know very well that when AFSPA was passed, there was need of it
because India was having no that much central police forces to control the
situation at that point of time but now a days there is no use of AFSPA other
than harassing the civilians. We must abolish the AFSPA because of the reason
that we are having substitute of it to control any arm rebellion.
NEGATIVE EFFECT OF AFSPA
As we know that there is nothing more important than dignity of
women and life of a human being. And misuse of AFSPA is harassing the dignity
of women and taking the life human being which is against the natural
law. Hugo Grotius (1583-1645) treated “natural law as
immutable which cannot be changed by God himself”11. And to protect
the life and dignity of, people of these localities would be rebellion and of
course they are doing it and results are before us.
CONCLUSION
As we have seen different aspect of misconduct and misuse of
authority given to AFSPA we can conclude the issue as government must abolish
the AFSPA because of the reason that there are so many options with the
government which substitute AFSPA. Because this act is purely deals with the
positivism theory while Indian Constitution largely deals with Natural Law
Theory. Thus we can see that this Act is totally against Art 14 of The
Constitution of India Act, 1950.
Earlier Indian Judiciary was also dealing with positivist theory12 but
now it deals with Natural Law Theory or Liberal Theory13.
Since, the situation for which AFSPA was enacted is not at all in
existence. Thus, lastly, we can say that AFSPA should be abolished for the sake
of justice equity and good conscience.
End Notes:
1.
By Lt Gen (Retd.) O P Kaushik, Armed forces special powers act
(AFSPA), 14/09/2015, http://www.defsecmanthan.org/, last seen on
15/09/2015.
2. Subs. By Act 69 of 1986, sec. 43, for "Assam, Manipur,
Meghalaya, Mizoram, Nagaland and Tripura and the Union Territory of Arunachal
Pradesh" (w.e.f. 20-2-1987).
3.
www.infoplease.com/ipa/A0777460.html, last seen on 15/09/2015
4.
AIR 1973 SC 1461
5. Observation of Mathew, J. in Kesavananda Bharti’s case
which is also called ‘Fundamental Right Case’ [AIR 1973 SC 1461]
6.
AIR 1980 SC 1789
7.
AIR 1978 SC 597 (626)
8.
Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, 164
( 7th ed, 2013, Central Law Agency)
9.
https://en.wikipedia.org/wiki/Thangjam_Manorama, last seen on
17/09/2015
10.
By Kavita
Krishnan, http://www.youthkiawaaz.com/2015/04/indian-army-rape-in-karbi-anglong/,
last seen on 17/09/2015
11.
Supra note 8
12.
See A.K. Gopalan v. State of Madras (AIR 1950 SC 27)
13.
Hon’ble Justice Bhawati and Justice Krishna Iyer are known as
champions of Liberal Approach.
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