SC's orders on AFSPA prove that it is a draconian provision, not an enabling one

The Supreme Court’s trashing of the Armed Forces (Special Powers) Act (AFSPA) on 8 July must come as a breather for all nationalist Indians. The apex court was hearing a petition by Families of Manipur that had listed 1528 cases of fake encounters involving Manipur police and the armed forces.

The Supreme Court bench, consisting of Madan B Lokur and UU Lalit, observed: “Use of excessive force or retaliatory force by the Manipur police or the armed forces of the Union is not permissible. As is evident from the Dos and Don’ts and 10 commandments of the Chief of Army Staff, the Army believes in this ethos and accepts that this principle would apply even in an area declared as a disturbed area under AFSPA and against militants, insurgents and terrorists. There is no reason why this principle should not apply to the other armed forces of the Union and the Manipur police.”

The Supreme Court invoked the nationalist spirit when it said: “If members of our armed forces are deployed and employed to kill citizens of our country on mere allegation or suspicion that they are ‘enemy’ not only the rule of law but our democracy would be in grave danger.”

The Supreme Court said this with reference to the Section 4 of the Armed Forces (Special Powers) Act that enumerates the special powers of the armed forces which are deployed in a state in aid of civil power. The Section 4 states: “If he (army officer) is of opinion that it is necessary so to do for the maintenance of the 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…” If this provision is not disturbing enough, then consider the Section 6 of the said Act which confers a protection upon the persons acting under the Act. “No suit, prosecution or other legal proceeding can be instituted against such person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

Historic image of Manipuri women protesting against the brutality of the armed forces in front of the Kangla Fort. Courtesy: Human Rights Watch.

Historic image of Manipuri women protesting against the brutality of the armed forces in front of the Kangla Fort. Image Courtesy: Human Rights Watch.

This is clearly a draconian provision, not an enabling provision.

Unfortunately, the Supreme Court had upheld the constitutional validity of such a draconian Act in Naga People’s Movement of Human Rights vs Union of India case (1998).

The Supreme Court has made suitable amends in its 2016 verdict when it said: “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor is a common person or the State. The law is the same for both and is equally applicable to both… This is the requirement of democracy and the requirement of the preservation of the rule of law and the preservation of individual liberties.”

The apex court did not go to the extent of declaring AFSPA as unconstitutional but suggested stern measures to prevent its abuses. It said: “A thorough enquiry should be ordered into “encounter” killings in disturbed areas because the alleged enemy is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution.”

The Supreme Court even went to the extent of saying that even if the inquiry proved that the victim was an enemy and ‘unprovoked aggressor’, the security forces would still have to answer the question whether excessive or retaliatory force beyond the call of duty was used.

The Union government, of course, made a forceful submission that the lack of immunity from prosecution would have a demoralising effect on the armed forces, which would then refuse to take on the insurgents pro-actively, however,  the Supreme Court was unconvinced. It spoke pointedly — “there is no concept of absolute immunity from trial by a criminal court” if members of the security forces commit any offence while discharging their duties.

The Supreme Court’s observations should make nationalist hearts happy as the most hapless Indians in such ‘disturbed areas’ would get the protection of law after this ruling. So far, thousands of such innocent men and women have perished, unsung and unheard, in the crossfire between the armed forces and the terrorists for no fault of their own. A high-level Commission headed by the retired Supreme Court judge Santosh Hegde had said in its report to the Supreme Court in 2013 that none of the victims of the ‘encounter’ killings in certain parts of ‘disturbed areas’ had any criminal record nor were any of them involved in any kind of insurgency activity. In fact, the Commission found an identical pattern in most of the killings.

The Hegde Commission had gone on record to say that AFSPA was an impediment to achieving peace in both northeastern states as well as Jammu and Kashmir. Justice Jeevan Reddy Committee, which was set up by the UPA government in 2005 to look into the charges regarding the misuse of the provisions of the AFSPA also held that the draconian law was against the spirit of the rule of law and must be repealed.

Even the JS Verma commiittee, which was set up by the UPA government in the aftermath of the heinous Nirbhaya rape case, had some bitter truths to tell about AFSPA. In its report, the Committee said: “We note that impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimised by the Armed Forces Special Powers Act which is in force in large parts of our country. It must be recognised that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of the country. India has signed the “International Convention for the Protection of All Persons from Enforced Disappearance” which has to be honoured.”

The Verma Committee report went on to say: “To this end, we make the following recommendation for immediate implementation:

‘Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law.’

Justice JS Verma, a former chief justice of the Supreme Court, also made a forceful plea to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas to restore confidence in the administration in such areas.

After long years, the Supreme Court has now acted to ensure that alienation of a section of our people is brought to an end and their mainstreaming takes place. All nationalist Indians should welcome this move.


Updated Date: Jul 12, 2016 13:28 PM

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