Explained : Does AFSPA Give Total Immunity To Armed Forces For Killing Civilians?

Sneha Rao

6 Dec 2021 5:15 AM GMT

  • Explained : Does AFSPA Give Total Immunity To Armed Forces For Killing Civilians?

    The death of at least 14 civilians in Nagaland on Saturday evening as a result of the action of the Armed Forces has brought back into focus the controversial Armed Forces (Special Powers) Act, 1958. The Act which came into force in the context of insurgency in the Northeastern States decades ago provides "special power" to the Armed Forces applies to the Army, the Air Force and the...

    The death of at least 14 civilians in Nagaland on Saturday evening as a result of the action of the Armed Forces has brought back into focus the controversial Armed Forces (Special Powers) Act, 1958. The Act which came into force in the context of insurgency in the Northeastern States decades ago provides "special power" to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces,etc. 

    Do the "special powers" granted under AFSPA gives total immunity to the armed forces for any action taken by them? Are human rights considerations invalid if action taken under the law is in question? To understand the interplay between human rights and AFSPA powers one must understand the "special powers" that AFSPA grants.

    Armed Forces (Special Powers) Act, 1958

    Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in "disturbed areas." AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law. The Act further provides that if "reasonable suspicion exists", the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.

    The 'special powers' which are spelt out under Section 4 provide that:

    (a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons etc are in force in the disturbed area;

    (b) Power to destroy structures used as hide-outs, training camps or as a place from which attacks are or likely to be launched etc;

    (c) Power to arrest without warrant and to use force for the purpose;

    (d) Power to enter and search premises without warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.

    However it is crucial to note that AFSPA is a special law that is in force only in certain parts of the country- what the Act refers to as "disturbed areas." A disturbed area is one which is declared by notification under Section 3 of the AFSPA. As per Section 3, it can be invoked in places where "the use of armed forces in aid of the civil power is necessary". The Central Government, or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area. A suitable notification would have to be made in the Official Gazette.

    AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam. In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force. 

    AFSPA: A License to Kill?

    Section 4 of the Act granted officers the authority to "take any action" even to the extent to causing the death. The powers granted under Section 4 are further bolstered by Section 6 which provides that "no prosecution, suit or any other legal proceeding can be instituted, except with the previous sanction of the Central Government, against anything done or purported to be done in exercise of the powers conferred by the Act." Even though the Act gives sweeping powers to security forces even to the extent of killing a suspect with protection against prosecution, a closer look at Section 4 shows that the authority to cause the death of a person is contextually limited by specifying that such action can be taken only if the officer is of the opinion that it is necessary to do so for the maintenance of public order and after giving due warning as he may consider necessary. It further provides that action can be taken against persons who are in contravention of law and order in force prohibiting the assembly of five or more persons.

    While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in death of civilians. These extra-judicial killing became the attention of the Supreme Court in 2016 wherein it clarified that the bar under Section 6 would not grant "total immunity" to the officers against any probe into their alleged excesses. In Extra Judicial Execution Victim Families Association v Union of India, a bench of Justices Madan Lokur and U.U.Lalit gave this ruling on a PIL filed by Extra Judicial Execution Victim Families Association alleging 1,528 fake encounter deaths in Manipur in the last decade and demanding a probe by a special investigation team. The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offence.

    The Court further noted- "If an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Cr.P.C. To contend that this would have a deleterious and demoralizing impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours."
    In particular, the Court rejected the Union's submission that a person carrying weapons in violation of prohibitory orders in the disturbed area of Manipur is ipso facto an enemy or that the security forces in Manipur in such a case are dealing with an 'enemy' as defined in section 3(x) of the Army Act. Rejecting the contention, the Bench observed that this was too far sweeping and generation and allegation. It further noted- "each instance of an alleged extra-judicial killing of even such a person would have to be examined or thoroughly enquired into to ascertain and determine the facts. In the enquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy. Killing an 'enemy' is not the only available solution and that is what the Geneva Conventions and the principles of international humanitarian law tell us."

    In 2017, a Bench of Justices Madan Lokur and Deepak Gupta directed the CBI to constitute a Special Investigation Team and to investigate the alleged extra judicial killings in Manipur. In 2018, raising grievances against the manner in which CBI was conducting probe, a petition was filed by 300 officers of the Army. The petition alleged that the investigation against the armed forces personnel has been carried out in a "hasty manner", without following the prescribed procedure of CBI manual. Rejecting the plea, the Supreme Court observed that "when there is a loss of life, even in an encounter, should not the human life demand that it should be looked into and investigation should be done?"

    Constitutionality of AFSPA

    Attempts have been made to examine the constitutionality of the Act on the grounds that is it repugnant to the right to equality and the federal structure of the Constitution since law and order is a State subject. In 1998 Naga People's Movement of Human Rights v Union of India, the Supreme Court by way of a unanimous decision upheld the constitutionality of AFSPA by holding that the Act does not confer arbitrary powers to declare an area as a 'disturbed area. The Court viewed the law primarily through the lens of legislative competence and held that the Parliament had power to enact the law.

    Taking note of the situation on the ground, the Court observed that even though the Constitution did allow for the deployment of the armed forces to aid civil forces, such deployment could only occur for a temporary period until a situation of normalcy was restored. It further noted that it would be "desirable" if state governments are consulted by the Central government before declaring an area as 'disturbed area'; the declaration has to be for a limited duration and there should be a periodic review of the declaration 6 months have expired; while exercising the powers conferred upon him by AFSPA, the authorised officer should use minimal force necessary for effective action, and that the authorised officer should strictly follow the 'Dos and Don'ts' issued by the armed forces.

    Recommendations to repeal AFSPA

    The Supreme Court judgement did not, however, put a quietus to the matter. In 2004 following the alleged custodial death of a woman arrested by the Armed Forces and ensuing protests, the Union Government constituted a Committee to Review the ArmedForces Special Powers Act, 1958. The Committee headed by Justice B.P.Jeevan Reddy, the content of which have never officially been revealed by the Government, recommended that AFSPA be repealed. Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 instead. It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and (c) grievance cells should be set up in each district where the armed forces are deployed.

    The Administrative Reforms Commission in its 5th Report on 'Public Order' had also recommended that AFSPA be repealed. Reiterating the recommendation of the Jeevan Reddy Commission, the Report added that to enable the deployment of Armed Forces of the Union in North-Eastern States of the country, a new Chapter VIA be added to the Unlawful Activities Prevention Act, 1967. A document of the Department of Administrative Reforms and Public Grievances notes that the recommendation was considered and rejected.

    The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law(popularly known as Justice Verma Committee) set up in 2012 to review laws against sexual assault. The report noted that in conflict zones, legal protection for women was neglected. In its recommendations, the committee said that sexual violence against women by members of the armed forces should be brought under the purview of ordinary criminal law and urged an immediate review of the continuance of AFSPA. The committee also recommended an amendment to the AFSPA to remove the requirement of prior sanction from the central government for prosecuting security personnel for certain crimes involving violence against women.

    Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented till date. While the Supreme Court in its judgement has clarified that AFSPA does not give licence to kill and that no blanket immunity can be granted to officers for alleged excesses undertaken by them, the reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their "excesses." In the Manipur Encounter Killings case, for instance, the Special Investigation Team set up by the Supreme Court is yet to submit its report and there is no indication of any action has been taken. Speaking at an event recently, Justice Madan Lokur who had directed the CBI to constitute an SIT to investigate the extra-judicial killings in Manipur, had expressed his disappointment at manner in which the issue was being dragged on. In this context he had remarked-The Supreme Court directed the CBI to look into the matter. What has happened, nobody knows. The lawyer, that is what the newspapers say, mentioned the matter three times before the Supreme Court, urging, 'Please take up the case so that we know what the CBI is doing'. But the case has not been taken up. It has been almost 3 years. Nothing has happened. What has happened to the family? Can you say will give you three lakhs or five lakhs, forget about who killed whom and be happy? So long as you have legal impunity- the Armed Forces (Special Powers) Act, you can do whatever you want? It can't be like that. There has to be accountability. The rule of law does not allow encounter killings!"

    A similar trajectory was seen in the Pathribal case where the five Rashtriya Rifles officers named by the CBI challenged the charge sheet in the courts. The Supreme Court upheld their case, directing the Army to either permit prosecution or court-martial them. The Army chose the latter option and the military court closed the case against them, concluding that "the evidence recorded could not establish a prima facie case against any of the accused."

    Eloquent observations that AFSPA does not give licence to kill mean very little if it does not translate into tangible action taken against perpetrators.

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