Between The Lines

Calls for the repeal of the AFSPA have recently come from across the political spectrum and civil society. The calls grew more strident following the report of the Indian Home Ministry-appointed Justice Jeevan Reddy Committee. Speaking in Imphal, the capital of the northeastern Indian State of Manipur on 2 December 2006, in absolute disregard of the recommendations of the Justice Jeevan Reddy Committee, Prime Minister Manmohan Singh declared that the Indian Home Ministry was working on changes aimed at making the Armed Forces (Special Powers) Act, or the AFSPA, “more humane”.  

In November 2004, the Government constituted a five-member Committee under the chairmanship of Justice B.P. Jeevan Reddy to undertake the review of the AFSPA and advise the Government as to whether the Act should be amended or replaced by a “more humane Act.” That the setting up the Committee was a placatory exercise is clear from the manner in which the Government has reacted to its recommendation that the Act be repealed. The recommendations of the Committee need to be studied carefully by civil society before charting a strategy. 

Repeal of AFSPA 

The Committee described the Act as being “too sketchy, too bald and quite inadequate in several particulars”; questioned the appropriateness of a separate Act for the North-East, and based on its interactions with the stakeholders concluded that the AFSPA had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.” The Committee rightly observed that the constitutional validity of the Act upheld by the Supreme Court in Naga People's Movement of Human Rights v Union of India (AIR 1998 SC 431) would not signify the AFSPA’s “desirability or advisability”. This was the rationale for absolute repeal of the AFSPA. In unequivocal terms it dismissed the option of retaining the Act by amending it. 

How does one even begin to ‘humanise’ an Act that is at once vague, ambiguous, lacking in safeguards and discriminatory in application? It is evident that the well-intentioned Prime Minister is not able to free himself from the dictates of the Praetorian Guard, i.e. the Indian security establishment, which has no intention of doing away with the provisions of the Act in one form or the other. 

Appropriate Legal Framework? 

Mindful of the stakeholders’ desire that the Army remain in the region but the AFSPA be repealed, the Committee examined the Unlawful Activities (Prevention) Act 1967 (ULP Act) as a suitable legal framework. It observed that the ULP Act is designed to curtail insurgencies and terrorism and also provides for the deployment of armed and paramilitary forces to combat terrorist activities. Further, it will help obliterate the “feeling of discrimination and alienation among the people of the North-eastern States” fuelled by the AFSPA. The Committee pointed to some protective measures in the ULP Act that are absent in the AFSPA. These include: protection of identity and address of witnesses (Section 44), and the mandatory requirement of obtaining prior sanction from the Central Government before a Court can take cognizance of offences (Section 45). 

Concerns relating to the accountability of the armed forces, their powers and duties and their prolonged deployment still remain. To plug these loopholes, the Justice Reddy Committee recommended the insertion of “Chapter VIA: Deployment of the Armed Forces of the Union” so as to provide safeguards against arbitrary use of force and specify the period of deployment. The suggestions include:

 (a) Deployment for a specified period

The State Government may approach the Central Government for deploying forces where maintenance of public order is difficult. The forces deployed must aid civil power and as far as is practicable work in tandem with the State forces. The Central Government must through notification specify place and period of operation of the forces. The period of operation cannot exceed six months. After such period the State Government must undertake a review whether continuation of the forces is warranted. The Central Government can be requested to extend the period for upto three months. All requests for deployment must be tabled before the Legislative Assembly.  

Forces can also be deployed by the Central Government even if there is no request received from the State. In such a case, the Centre will undertake the review and the deployment can be extended upto six months. Within a month of its publication, the notification must be tabled before both Houses of Parliament.  

This recommendation was aimed at ensuring the “emergency” character of deployment and is laudatory. As long as the local police force is not relied on, it will not assume its proper role in law enforcement. The continued presence of the military forces prevents the police from carrying out its function and reinforces the perceived need for the use of the AFSPA. 

(b) Specified Powers  

The Committee suggested that the armed forces be vested with discretion to undertake operations “deemed necessary” for restoration of public order or quelling of internal disturbance. The power to use force or open fire can be made available against an individual or group of individuals in actual or suspected unlawful possession of explosive substances or lethal weapons, referred to in Section 15 of the ULP Act. This is much more specific than the broad power to fire or use force to even cause death for contravention of any law prohibiting an assembly of five people or carrying weapons under Section 4(a) of the AFSPA. The Committee, however, did not object to the power to search and seize without warrants.  

The Committee also did not create offences or prescribe penalties for the abuse of powers or non-compliance with directives (these are appended to the Committee’s suggested draft for an amended ULP Act). 

(c) Additional Safeguards 

In the Naga People’s case, the Supreme Court recommended that “armed forces shall use minimal force required for effective action” and that detained persons be handed over to the “nearest magistrate” within 24 hours. The Reddy Committee proposed that “legislative shape” be given to the additional safeguards prescribed by the Court over and above the army’s “Dos and Don’ts.” It recommended insertion of a section (40B) in the ULP Act under which arrested persons should be forthwith handed over to the officer in charge of the nearest police station. The member of the forces must prepare a memo detailing the circumstances of arrest at the time of handing over. The officer in charge of the police station is required to make the appropriate entries in the relevant registers and record property seized. Further, the powers of arrest, use of force and fire, search and seizure must be exercised in compliance with the specified directions. 

(d) Grievance Cells 

The Committee also recommended insertion of a section (40C) within the ULP Act that will provide for district-level Grievance Cells. The Cells will be composed of a Sub-Divisional Magistrate, “a Captain of the armed forces/security forces” and “an officer of the State Police not below the rank of a Deputy Superintendent of Police”. The Cell’s primary function would be to process complaints “regarding allegations of missing persons or abuse of law by security/armed forces” and “provide information on the whereabouts of missing persons within 24 hours”. This would help enhance the image of the forces and seek to keep a check on abuse of powers. If the applicant is not satisfied with the information received, the Committee suggested, the Cell must approach the “State level head of the concerned force or organization to enquire into the matter” who must conduct necessary enquiries and submit information within a week. 

There is little evidence to suggest, however, that such bodies would be effective. This is particularly true of areas controlled by the armed forces where anyone making a complaint is likely to face harassment.  

Immunity under the ULP Act 

While there are several problematic aspects in the ULP Act, Section 49 is of chief concern as it has the effect of granting absolute immunity. The Reddy Committee discussed this provision but failed to acknowledge its gravity. Section 49 offers effective immunity to any authority on whom powers have been conferred for “anything which is in good faith done or purported to be done in pursuance of this Act or any rule or order made thereunder.” Further, no suit, prosecution or other legal proceedings shall lie against “any serving member or retired member of the Armed Forces or other para-military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism.” 

Such protections invite abuse, as it is practically impossible to prove that a officer has acted without good faith in abusing the provisions of the Act. The imposing of such a high evidentiary bar to defeat any prospects of punishment for misuse creates a culture of impunity and sends the wrong signal to law enforcement agencies. Moreover, Section 49 does not even limit its remit to actions taken in good faith under the Act but also to “any operations directed towards combating terrorism” (emphasis added).  

Conclusion 

Any campaign for repeal of the AFSPA based on the Reddy Committee report must first consider the implications of such a step. If the Committee’s recommendations are accepted in full, the ULP Act is likely to become the next instrument of choice for the Central and State Governments when they seek to deal with threats to security, whether real or perceived. This would be inadvisable as the ULP Act already contains impunity-friendly provisions. If the Committee’s recommendations are sought to be implemented selectively, then it is necessary to monitor which portions are taken up for implementation and how.

 Human Rights Features