HRF/102/04

  29 July  2004

Losing hearts and minds

It’s easy when you use laws like the AFSPA

Defenders of extrajudicial killings clearly suffer from acute nostalgia for the Stone Age when a man with a club was a law unto himself. It is unpardonable when such excesses are condoned – and often, even wished upon their fellow citizens.

It is therefore incumbent on those who believe they live in a democratic, civilized society to reflect on what happened to Thangjam Manorama in Manipur. Here was a woman who was “picked up” from her home by the Assam Rifles and summarily executed, reportedly after being tortured. Whether she was a terrorist or an activist or a homemaker is not the point. A civilized society does not allow police or paramilitary personnel to judge whether a person deserves to be shot. Not in peacetime, not in a “warlike situation”, not during an Emergency.

Perhaps, we must re-evaluate the state of Indian civilization and democracy. Because the Armed Forces Special Powers Act (AFSPA) allows precisely for the kind of acts described above. In effect in Jammu and Kashmir, Nagaland, Manipur, Assam, and parts of Tripura, the Act gives the Central Government the power to declare any State or Union Territory a disturbed area and allows security forces to fire at any person if it is considered “necessary for maintenance of law and order.” Security personnel can also arrest any person “against whom reasonable suspicion exists” with no obligation to inform the detainee of the grounds for arrest. These powers are also granted to non-commissioned officers, such as Lance Naiks and Subedars, the Indian terms for corporals and sergeants.

Finally, security forces are given immunity from prosecution for any acts committed by them in relation to the Act.

The case for the AFSPA, even legally speaking, is not cut and dried. The declaration that an area is disturbed essentially amounts to declaring a state of emergency but bypasses the Constitutional safeguards. The point that this act invokes a state of emergency was raised by Mr Mahanty (Dhenkanal) in the 1958 Lok Sabha debates. He said the Assembly could not proceed if Section 352(1) of the Constitution was not fulfilled.

In response, Mr G B Pant, then Home Minister, attempted to argue that the powers granted under the AFSPA do not resemble a state of emergency. He said that in an emergency, fundamental rights can be abrogated and that the AFSPA does not abrogate those rights. But under Section 4(a) the right to life is clearly violated. An officer shooting to kill, because he is of the opinion that it is necessary, does not conform, even prima facie, with the Article 21 Constitutional requirement that the right to life cannot be abridged except according to procedure established by law. The Home Minister said the AFSPA powers stem rather from Article 355 of the Constitution, which gives the Central Government authority to protect the States against external aggression.

However, India is also obligated to comply with international human rights law. India is a party to the International Convention on Civil and Political Rights (ICCPR) and any derogation from its provisions is only permissible under three conditions. Firstly, it is only “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” that states may derogate from their obligations under the ICCPR. Also, such derogation must be “strictly required by the exigencies of the situation” and cannot be inconsistent with other international law obligations. The AFSPA, for example, was enacted without such an official proclamation of emergency and goes beyond the requirements of the situation.

According to Section 4 of the Act, the army can shoot to kill, under the powers of section 4(a), for the commission or suspicion of the commission of the following offenses: acting in contravention of any law or order 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. 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".

Those in favour of retaining the AFSPA maintain that even if mistakes are made or excesses carried out in the implementation of the Act, it is no reason for the Act to be repealed. ‘Security analysts’ claim that errant members of the security corps are punished whenever excesses occur. They fail of course to mention the key clause in the Act that effectively grants immunity to security forces. Section 6 of the AFSPA establishes that no legal proceedings 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 an effective remedy.

In a report on the AFSPA to the UN Human Rights Committee in 1991, Nandita Haksar, a lawyer who has often petitioned the Guwahati High Court in cases related to the AFSPA, explained how in practice this leaves the military's victims without a remedy. Firstly, there has not been a single case of any one seeking such permission to file a case in the North East. Given that the armed forces personnel conduct themselves as being above the law and the people are alienated from the state government, it is hardly surprising that no one would approach Delhi for such permission. Secondly, when the armed forces are tried in army courts, the public is not informed of the proceedings and the court martial judgments are not published.

Section 6 of the AFSPA was also reviewed in Indrajit Barua v. State of Assam. The High Court justified this provision on the grounds that it prevents the filing of "frivolous claims". The court even said that this provision provides more safeguards, obviously confusing safeguards for the military with safeguards for the victims of the military's abuses.

Instances of human rights abuses by the army have shown that unless there is public accountability there is no incentive for the army to change its conduct. This was exemplified in Burundi when security forces killed 1,000 people in October 1991. Amnesty International reported, "The failure to identify those responsible for human rights violations and bring them to justice has meant that members of the security forces continue to believe that they are above the law and can violate human rights with impunity." Without the transparency of the public accounting, it is impossible to be sure that perpetrators are actually punished.

Habeas corpus cases have been the only remedy available for those arrested under the AFSPA. A habeas corpus case forces the military or police to hand the person over to the court. This gives the arrested person some protection and it is in these cases that legal counsel has been able to make arguments challenging the AFSPA. However, a habeas corpus case will not lead to the repeal of the Act nor will it punish particular officers who committed the abuses. Also, only people who have access to lawyers will be able to file such a case.

Section 6 of the AFSPA thus suspends the Constitutional right to file suit. Mr Mahanty raised this crucial argument in the first Lok Sabha debate on the AFSPA in 1958. He said that Section 6 of the AFSPA "immediately takes away, abrogates, pinches, frustrates the right to constitutional remedy which has been given in article 32(1) of the Constitution." This further shows that the AFSPA is more than an emergency provision because it is only in states of emergency that these rights can be constitutionally suspended.

Section 32(1) of the Constitution states that "the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed." In the Constitutional Assembly debates, Dr B R Ambedkar said, "If I was asked to name any particular article of the Constitution as the most important - an article without which this Constitution would be a nullity. I would not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it."

During the emergency in 1975 the right to file for writs of habeas corpus was suspended as ruled by the Supreme Court in A.D.M. v. Shivakant Shukla, (1976) 2 SCC 521. The Emergency had been declared under Section 359 of the Constitution. This section has now been amended, stating that the fundamental rights of section 20 and 21 cannot be suspended, even in a state of emergency. Therefore, should an emergency be declared today, the right to file habeas corpus on the grounds that the fundamental right to life has been denied should be allowed. Nevertheless, the 1975 case exemplifies the court's deference to the Executive, even if it means a total suspension of individual liberty.

In the circumstances, the AFSPA remains a stranglehold, a power unleashed – often arbitrarily and unlawfully – on India’s population.

That doesn’t sound very different from terrorism.

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