After almost half a century, the Armed Forces Special Powers Act (AFSPA) continues to occupy centre-stage of a bitter debate over its existence. Vociferous calls for its repeal from civil rights activists have been acknowledged by the Second Administrative Reforms Commission, which has recently recommended its repeal. As with previous recommendations of repeal, such as the Reddy Committee’s in 2005, Government officials reacted with immediate and emphatic disapproval. They concede possibilities of improvement in the law but categorically reject its repeal. Their trump card continues to be the exigencies of ‘extraordinary law and order situations’ that justify the Act’s retention in the North-East and Jammu and Kashmir. 

The Government’s overt endorsements of the AFSPA have found tacit support from the judiciary. Most notably, a May 2007 judgment of the Supreme Court in Masooda Parveen v. Union of India turned its back on meaningful judicial review of abuses by the armed forces under the AFSPA. After acknowledging the validity of a 10-year-old precedent placing checks on the armed forces’ AFSPA powers, the Supreme Court’s accepted the government’s fig leaf arguments in Masooda, all but instructing the armed forces how to abuse and torture suspects with impunity in the future. 

Pre-Masooda: Civil Authority as a Check on the Armed Forces 

In the 1997 case Naga People’s Movement of Human Rights v. Union of India (NPMHR), the Supreme Court upheld the constitutionality of the AFSPA but placed various checks on the armed forces’ exercise of power thereunder. Specifically, the Court rejected the petitioners’ argument that the AFSPA was unconstitutional because it transferred to the armed forces full power to maintain public order in a disturbed area whereas the Constitution only permits Parliament to enact laws relating to the ‘use of the Armed Forces in aid of civil power’. 

But in rejecting this argument, the apex Court also held that the ‘in aid of civil power’ clause mandated the continued existence and relevance of the authority to be aided. Under the AFSPA, therefore, the armed forces cannot ‘supplant or act as a substitute’ for a State’s civilian authorities in the maintenance of public order, but are strictly required to act in cooperation with them. 

Accordingly, the Court understood the armed forces’ power under AFSPA Section 4(c) to arrest any person without a warrant for suspected commission of a cognisable offence in light of Section 5, which requires handing over the arrested person to the nearest police station with the ‘least possible delay’. The Court further stressed that the ‘least possible delay’ language of the AFSPA reflected the requirements of the Criminal Procedure Code (CrPC) and the Constitution, which mandate production of a detainee before the nearest Magistrate within 24 hours of arrest.

Similarly with respect to the search and seizure powers granted under Section 4(d) of the AFSPA, the Court interpreted the AFSPA to require the armed forces to transfer custody of seized property to local police forces. Furthermore, in conducting searches and seizures under Section 4(d), the armed forces were bound by relevant CrPC provisions that would otherwise bind civilian authorities.

The Central Government filed a subsequent application with the Court seeking modification of its NPMHR order to allow retention of

seized weaponry by the armed forces provided a proper voucher for the same was issued by the police. Allowing this modification, 

the Court nevertheless directed army authorities to obtain orders from a magistrate for custody of the seized property, including 

their interim custody.

Gauhati High Court Takes AFSPA Oversight Seriously

Following the NPMHR ruling, the Gauhati High Court, which has jurisdiction over the conflict-prone Northeast States, has faithfully applied NPMHR’s reasoning to restrict the power of the armed forces to act independently of State authorities. For instance, the High Court held that the armed forces’ refusal to involve local police in an operation to track down suspected militants in Assam overstepped the bounds of the AFSPA. Similarly, the Court held that the armed forces’ failure to hand over arrested persons to local police authorities represented violations of the AFSPA. In such situations, the Gauhati High Court has insisted that the armed forces demonstrate adequate factual circumstances to justify non-compliance with the requirement of handing over custody to civilian authorities with the ‘least possible delay’. These decisions have also been unanimous in holding that custodial deaths resulting from such AFSPA violations contravene the fundamental right not to be deprived of life and liberty except by procedure established by law, and therefore merit the award of compensation.

Supreme Court Backtracks on the AFSPA

In its May 2007 Masooda decision, the Supreme Court undermined its earlier NPMHR ruling by accepting very weak arguments from the Central Government excusing the army’s lack of cooperation with local police forces.

Masooda involved a writ petition filed by the widow of a practising advocate, Ghulam Mohi-ud-din Regoo, who had been arrested, tortured and killed by security forces in Jammu and Kashmir as a suspected militant. First arrested by the army in 1994 and held in custody for three months based on allegations of being a Pakistani-Trained Militant (PTM), he resumed his work after being released from custody. In 1998, an army unit along with surrendered militants searched his house and took him to the local army headquarters. According to his widow, Regoo was ‘tortured mercilessly leading to his death whereafter explosives were placed on his dead body and then detonated to camouflage the murder.’ She petitioned several State authorities and the Chief Justice of India seeking compensation. 

The uncontested facts indicate that at no point did the members of the army involve the police during either the search or arrest operations. Accordingly, the petition contended that while the Army had exercised its powers of search and arrest under the AFSPA, its failure to inform the State police of either operation until after the arrestee’s death ‘completely excluded the participation of the local administration and the police’, thereby violating the AFSPA.

The Army, however, argued that as the interrogation of Regoo had revealed information of the whereabouts of hidden arms and ammunition, its first priority was to recover these weapons rather than inform the local police of the arrest. The army claimed that Regoo died in an explosion during an attempt to uncover the hideout of this weaponry.

Despite a reiteration of the need to ‘scrupulously observe’ the NPMHR guidelines, the Supreme Court failed to appreciate the gravity of the Army’s categorical failure to involve local police forces until after Regoo was dead. Instead, the Court cautioned that the guidelines could not be mechanically transposed from one set of facts to another and proceeded to justify the Army’s actions.  

Considering the 6-hour time gap between arrest and death ‘minimal’, and therefore inconsequential, the Court echoed the Army’s argument that the recovery of arms and ammunition from the arrestee was an ‘apparent…first priority’ that took precedence over the transfer of custody to civil police forces because ‘to cause any delay could lead to a failure of the operation’. The Court also invoked the defences of feasibility and practicability to justify the failure to contact local police authorities ‘in the short time available’, despite the presence of a police station only a few kilometres from the place of arrest. Reiterating the Government’s justifications for the AFSPA’s continuing existence, Masooda excused the army’s actions based on the exigencies of “prompt action…[which was] the key to success” of security operations wherein “any delay… would frustrate the very purpose of the army action”. 

All these arguments accepted by the Court are alarmingly similar to those used by both the army and the Government to justify human rights abuses that take place under the auspices of the AFSPA. This is troubling. An Act as extreme as the AFSPA with its vast scope and numerous instances of abuse ought to have stringent safeguards in its implementation. Any deviation from these must be supported by coherent legal grounds detailing situations in which non-compliance may be excused. Instead, Masooda’s blanket acceptance of the army’s violations of the AFSPA sets a dangerous precedent in allowing exemptions from NPMHR guidelines on grounds as vague and controversial as these.

Conclusion

After years of controversy surrounding both the content and implementation of the AFSPA, there has been little response from the Government. Defence Minister A.K. Antony’s assurance of modifying the Act into a more ‘humane law’ is not much ground for hope.

First and foremost, the AFSPA should be repealed altogether. The Supreme Court’s dilution of previously outlined safeguards in its recent Masooda decision poses grave concerns. The critical requirement of handing the arrested person to civil authorities cannot be easily dispensed with. The necessity of prompt action by the army should not justify departure from the minimum safeguards laid down in the NPMHR case. Therefore, it is crucial that the judiciary perform a meaningful review of alleged abuses by the armed forces acting under the AFSPA.

 Human Rights Features