Armed Forces (Special Powers) Act, 1958 - 09.02

8/3/2019 Armed Forces (Special Powers) Act, 1958 - 09.02

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A

Presentation

on

Armed Forces (Special Powers) Act, 1958


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PRESENTATION

BYMAJ. GEN. NILENDRA KUMAR

DIRECTORAMITY LAW SCHOOL, NOIDA

ON

FEBRUARY, 2012


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Is there any alternative

to

Armed Forces (Special Powers) Act, 1958


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India attained

its

independence essentially

by

peaceful means

and

non violence


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It propagated Panch Sheel and the doctrine

of peaceful co-existence.


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The Indian Constitution is basically federal in

Form


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However, the same did not eliminate

unrest, hatred violence and threat to the

sovereignty of the country.


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RELEVANT CONSTITUTIONAL

PROVISIONS


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However, not to be forgotten

Article 52 - There shall be a President of

India.

53(2) The Supreme Command of the

Defence Forces of the Union shall be vested

in the President and the exercise thereof

shall be regulated by law.


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EMERGENCY PROVISIONS

Article 355. Duty of the Union. It shall be

the duty of the Union to protect every State

against external aggression and internaldisturbance and to ensure that the

Government of every State is carried on in

accordance with the provisions of thisConstitution.


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Article 352 relates to the power of thePresident to make a proclamation of

emergency if he is satisfied that the

security of India is threatened by war or

external aggression.


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SUBJECT MATTER OF LAWS MADE BY

PARLIAMENT AND BY THE STATE

LEGISLATURES


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Authority over use of the armed forces


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DIVISION OF RESPONSIBILITY

Seventh ScheduleList 1 Union List

1. Defence of India and every part thereof

including preparation for defence and allsuch acts as may be conducive in timesof war to its prosecution and after itstermination to effective demobilisation.

2. Naval, military and air forces, any otherarmed forces of the Union.


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2A. Deployment of any armed force of the

Union or any other force subject to thecontrol of the Union or any contingent or

unit thereof in any State in aid of the civilpower; powers, jurisdiction, privileges andliabilities of the members of such forces

while on such deployment.


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List II State List

1. Public order (but not including [the use ofany naval, military or air force or any

other armed force of the Union or of anycontingent or unit thereof] in aid of thecivil power).


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2. Police (including railway and village

police) subject to the provision ofEntry 2-A of List I.


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Thus it would be significant to notethe duty of the Union in the matters of

national security and the clear cut

demarcation in the powers of the

Parliament and State Legislatures in this

regard.


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Having regard to the pluralistic nature of

Indian polity; multiplicity of religions &

languages, ethnic divisions and lack of

accommodation in political thoughts,

economic disparities and geographical

imbalances may at times give rise to

unresolved aspirations. Further, the

State may fail to bring about peaceful

and orderly settlement amongst the

society.


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A failure of the State administration to

maintain law and order may develop into

a situation, being disturbed and

dangerous, where the police and other

agencies available are not able to control

the extraordinary situation.


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The ultimate force available with the

Union is its armed force. Hence,

deployment of the armed forces of the

Union is the final choice.


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LEGAL DIFFICULTIES

1. The armed forces personnel have no

statutory authority to be deployed or toact within the country against own

citizens.

2. A State Government has no authority todirectly summon and deploy the military

which is under the executive domain ofthe Union.


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3. Military personnel need to be suitablyprotected for actions taken by them indischarge of official duties.


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Hence, the need for the AFSPA


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Main purpose of AFSPA

1. Declaration about disturbed anddangerous situation when, by whom and

how.2. Powers to NCOs and above.

3. Duty of the Armed Forces.

4. Protection given to them.


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SECTION 3

Powers to declare areas to be disturbedareas If, in relation to any state or Union

Territory to which this act extends, the

Governor of that State or the administrator ofthat Union Territory or the Central

Government, in either case, if of the opinion

that the whole or any part of such State of

Union territory, as the case may be, is in such

a disturbed or dangerous condition that


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the use of armed forces in aid of the civil

power is necessary, the Governor of that

State or the Administrator of that Union

Territory or the Central Government, as

the case may be , may by notification in

the Official Gazette,declare the whole or

such part of such State or Union territoryto be a disturbed area.


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SECTION 4

Special Powers of the armed forces

Any commissioned officer, warrant

officer, non-commissioned officer orany other person of equivalent rank in

The armed forces may, in a disturbed

area.


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(a) if he is of opinion that it is necessary so todo for the maintenance of public order, after

giving such due warning as he may considernecessary, fire upon or otherwise use force,even to the causing of death, against anyperson who is acting in contravention of any

law or order for the time being in force in thedisturbed area prohibiting the assembly offive or move persons or the carrying of

weapons or of things capable of being usedas weapons or of fire-arms, ammunition orexplosive substances;


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(b) if he is of opinion that it is necessary soto do, destroy any arms dump, prepared or

fortified position or shelter from whicharmed attacks are made or are likely to be

made or are attempted to be made, or anystructure used as a training camp forarmed volunteers or utilized as a hide-out

by armed gangs or absconders wanted forany offence;


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(c) arrest, without warrant, any person whohas committed a cognizable offence oragainst whom a reasonable suspicion

exists that he has committed or is about tocommit a cognizable offence and may usesuch force as may be necessary to effectthe arrest;


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(d) enter and search without warrant any

premises to make any such arrest asaforesaid or to recover any personbelieved to be wrongfully restrained orconfined or any property reasonablysuspected to be stolen property or any

arms, ammunition or explosive substancesbelieved to be unlawfully kept in such

premises, and may for that purpose usesuch force as may be necessary.


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SECTION 5

Arrested persons to be made over to

the police Any person arrested and

taken into custody under this Act shall be

made over to the officer in charge of

the nearest police station with the least

possible delay, together with a report

of the circumstances occasioning the

arrest.


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SECTION 6

Protection to persons acting under Act

No prosecution, suit or other legal

proceeding shall be instituted, except withthe previous sanction of the Central

Government, against any person in respect

of anything done or purported to be done inexercise of the powers conferred by this Act.


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Test of validity

of

AFSPA


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Naga Peoples Movement of Human Rights

V

Union of India; AIR 1998 SC 431


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DECISION

1. Act is not a colourable legislation or fraudon the Constitution.

2. Powers under Sections 4 and 5 are notarbitrary and unreasonable.


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CRITICISM

1. Retained for decades

2. Draconian powers to military. Use of

force to the extent causing of death.3. HR violations.

4. Sanctions for prosecution not given.


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RESTRICTIONS BY SUPREME COURT

1. Periodic review. Not to operate beyond

six months.

2. Orders of Central Government to grant orwithhold sanction to prosecute aresubject to judicial review.

3. Dos and Donts to be strictly followed.

4. Compensatory Justice compensationto the victim.


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Operations by the Troops facilitated

1. Retention of weapons and explosivescaptured.

2. Interrogation allowed.


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Prime Ministers assurance in December

2006 about changes in the Act.


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He promised a relook at the Act to see if it

needed to be retained if it could be turned

more humane.


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Justice Jeevan Reddy Committee Report


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Its report and recommendations are yet

to be made public.


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Act has remained in the Statute Book for last

five decades. Both during Congress and

non Congress Governments.


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There is no option but to retain the AFSPA


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A way forward is to humanise AFSPA by

framing of Rules and executive steps.


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EXECUTIVE MEASURES


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HOW TO HUMANISE

Use the tool of court of inquiry for prompt andtransparent investigations

1. Obligatory to convene inquiry in all cases of civildeaths, grievous injury or allegations sexualharassment etc. Do so within 72 hours.

2. Co-opt a civil official.

3. Woman officer to be a member/in attendance.

4. Venue to be easily accessible to local public.


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Video tape all military missions to achieve

greater transparency and accountability.


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Incentives/awards for capturing militants

alive. Hopefully, this may cut down

number of those killed.


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ALLEGATIONS OF FALSE ENCOUNTERS

AND FORCED DISAPPEARANCE

Allow local NGOs to lodge complaints


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A civil magistrate to accompany each

contingent of Army. If not feasible,

record reasons. This would bring intransparency and independent check


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Decision to accord or deny sanction in three

months.


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PROTECTION OF HUMAN RIGHTS ACT

NHRC may be allowed to refer and seek

reports.


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All complaints against Army personnel

pending in police stations should be

thoroughly probed in a time boundmanner.


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Due publicity of cases where disciplinary

actions have been taken against military

personnel for human rights personnel.


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Frame clear guidelines to lay down policy

about according/denial of sanction for

prosecution under Section 6.


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AFSPA has no provisions relating to rule

making powers.


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Recommended

Framing of Rules


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RULES TO LAY DOWN

1. Definition of armed forces.2. Difference between disturbed and

dangerous situations.

3. Threshold level for above.

4. Warning before opening fire Language,duration, means and caution.

5. Recording of the opinion of the officer ofthe designated category.


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NEED OF THE HOUR

Urgent discussion on steps to change

working of AFSPA would be a pragmaticmove in resolving an issue of major

national concern.


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THANKS

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Armed Forces (Special Powers) Act, 1958 - 09.02

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