AFSPA: Constitutionality sometimes leads to absurdity

On 4th December 2021, the security forces in Nagaland opened fire at a pick-up van carrying coal miners from the Tiru area to their village Oting in Mon district, killing six on board. The security forces say that it was a case of mistaken identity and they mistook the group of workers for insurgents. 8  more civilians and a soldier were killed in subsequent violence. This incident has once again revived the debate over AFSPA, a law which has often been criticised as a “draconian law” for the “uncontrolled powers'' it gives to the armed forces and the legal immunity they enjoy for their actions taken under the law. The Jeevan Reddy Committee formed in 2004 had recommended a complete repeal of the law. “The Act is a symbol of hate, oppression and an instrument of high handedness,” the committee said.

The law faced widespread protests in Manipur and the rest of India after the Malom massacre and the Thangjam Manorama case. EEVFAM has alleged that since the 1970s, there have been 1,528 fake encounters in Manipur. Human rights activists blame AFSPA for the killings, alleging that the law gives blanket protection to the armed forces to kill with impunity. They also allege that these are just the recorded cases and that instances of people simply disappearing have gone unreported over the years.

After the unfortunate killing in Nagaland, the State’s Chief Minister Neiphiu Rio said he has urged the Centre to remove AFSPA from Nagaland as the law is a “black spot on the image of the country”. So what is this law? Is it unconstitutional? What can be the solutions?

What is AFSPA?

The Armed Forces (Special Powers) Act, 1958 popularly known as AFSPA is, as per its preamble, "an act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas…"

The word ‘enable’ jurisprudentially renders the act to add special powers to the already powered armed forces thereby making the exercise of such added powers legal (U.P. Power Corp. Ltd vs Rajesh Kumar & Ors on 27 April 2012 defines ‘enabling provision’). The word 'special powers' means unusual powers. Therefore this act adds unusual but not abnormal powers to the already powered armed forces.  The act in its original form was brought by the British to suppress the Quit India Movement. Later on it was retained by the Nehru government which first brought it as an ordinance and then as an Act in 1958. AFSPA was first implemented in the Northeast and then in Punjab. Section 4 of AFSPA measures the ‘special powers’ [4. Special powers of the armed forces.―Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,― (a) if he is of opinion that it is necessary so to do for the maintenance of 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 prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;] The act doesn't make the exercise of the ‘special powers’ compulsory but as an option for the armed forces. The words ‘necessary’ and ‘opinion’ in the expression “if he is of opinion that it is necessary…” leave the exercise of the ‘special powers’ on a competent officer’s understanding of what are the necessary steps to be taken for maintaining public order and it is rational to rely on the officer’s opinion because the same is the best person to judge what to do at that moment of volatility. The act obligates a competent officer to fire upon or use force only after giving a warning, hence such powers are being regulated. Hence the said Section 4 sustains one of the tests of Article 14 of the Constitution, which declares an unregulated discretion unconstitutional. (Air India Etc. Etc vs Nergesh Meerza & Ors. on 28 August 1981, Citations 1981 AIR 1829, 1982 SCR (1) 438 explains the said test of Article 14). Section 5 of the AFSPA read as under [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.] The expression ‘least possible delay’ has raised many questions. According to Article 22(2) and Section 76 of the CrPC, an arrested person needs to be produced before the nearest magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate. Thus questions are being raised on the said expression. If the armed forces hand over the arrested person to the police after 24 hours of the arrest then the latter is debarred from respecting the rule of 24 hours. Therefore, to make Sections 5 and 4(c) sustainable, the same shall be read with Article 22(2) and CrPC’s Section 76. AFSPA is a subordinate legislation to the CrPC and the Defence of India Act, 1962 that indeed is subordinate to the Constitution of India. Hence, AFSPA cannot supersede its superior legislations. Now, when Section 5 is read with Section 4(c), we shall see that the latter part of Section 4(c) allows for preventive detention by using the expression, "arrest, without a warrant, any person who… is about to commit a cognizable offense..." Section 4(c) reads as under [4(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;] In the case of preventive detention, the duration of 24 hours does not apply as provided under Article 22(3) of the Constitution. The said article read as under [22(3) Nothing in clauses (1 ) and ( 2 ) shall apply (a)to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention] Hence, the expression "with the least possible delay" in the Section 5 of AFSPA is applicable for preventive detention as duration of 24 hours is not applicable for preventive detention. Therefore Section 5 and 4(c) do not violate the test of Article 21 of the Constitution. Section 6 of AFSPA has further created a furore because it positions the Central Government to unilaterally protect the acts performed under AFSPA by the armed forces from prosecution. [6. Protection to persons acting under Act.― No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.]

This is not a new dish as Section 197 of CrPC also makes it mandatory to seek previous sanction of the Central Government or the State Government to prosecute a judge or public servant. Furthermore, Article 34 of the Constitution allows the Parliament to protect a public servant from his/her act done for maintaining or restoring public order in any area of India wherein martial law is in force. Article 34 is a restriction on the exercise of fundamental rights guaranteed by the constitution. Hence, the constitution enables the parliament to protect the public servants. Therefore Section 6 also passes the test of the Constitution.  Then what is the problem with this act if everything is constitutional? To identify the problem, Section 3 of AFSPA is drawn under [3. Power to declare areas to be disturbed areas.― If, in relation to any State or Union territory to which this Act extends, the Governor of that State or the Administrator of that Union territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union territory, as the case may be, is in such a disturbed or dangerous condition that 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 in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.] This section does not expressly allow the participation of the State Government in the process of declaring a State or its portion as a "disturbed area" for getting military aid to the State’s police power. However the Governor of the State is there to take a call as to declaration of a 'disturbed area'. Article 163(1) of the Constitution makes it mandatory for the cabinet of a State to aid and advise the Governor in his/her functioning, therefore, one can argue that the elected part of the State Government can influence the Governor’s decision of declaring a State or its portion as ‘disturbed area’, but the same sub-article carves out an exception making the Governor pretermit the advice of the cabinet in those functions which the Constitution allows the Governor to function based on his discretion. Now the question comes whether the Governor can exercise his/her discretion in declaring an area "disturbed". The answer is yes. Article 356 of the Constitution allows a Governor to send a report reading that if the President understands that the State’s Government is unable to run the State by the Constitution then the President can himself/herself take the control of the executive functions of the State concerned and transfer the State Legislature's powers to the Parliament. Although, such an incident is a momentous executive decision that cannot be compared with a mere declaration as to a “disturbed area” however the premise in Article 356 is the failure of the State’s machinery and Section 3 of AFSPA also persuades the Governor to make the said declaration based on the failure of the State’s civil power to control the dangerous situation. Hence, in light of Article 356, Section 3 of AFSPA also comes under the discretion of the Governor.

Does nowhere in the law a State can declare a portion or the whole of it as a “disturbed area”?

Section 3 of The Disturbed Areas (Special Courts) Act, 1976 empowers a State government to declare a State or its portion a “disturbed area” due to it being in a disturbing order, however, the necessity of military aid to the State’s civil power for controlling the said disturbing public order is not projected. Therefore, for what purpose the State shall declare it or its portion a “disturbed area”? The purpose is for providing a speedy trial to the people alleged to have committed an offence in the "disturbed area". Section 4 provides for the constitution of special courts for speedy trial of scheduled offenses committed in "disturbed areas". Hence, under The Disturbed Areas (Special Courts) Act, 1976, the State itself can declare an area a “disturbed area” for speedy trial and it can be an area that has also been declared as "disturbed" under the AFSPA.

What can be the solutions?

The law and order is the subject of the State as provided under Entry 1 of State List II to the seventh schedule of the Constitution of India but when it is read with entry 2A of List I-Union List and Article 355, we shall find that the Central government can, in an emergency, rule over the State but then the expression ‘Union of States’ in the Article 1 of the Constitution of India makes us feel that unilateral action has not been the first gear of the Constitution but maybe the last gear. Hence, before declaring a State or its any portion as “disturbed area” thereby sending the armed forces to that said State or its portion, a concise report must be sought by the Central government/Governor from the State government if the prevalent situation permits so. Therefore, Section 3 of AFSPA needs to be amended to include this expression- The Governor/Central government must seek a quick and concise report from the State government showing the prevalent situation of the concerned area before declaring the area as “disturbed”.
Committees should be established at the district level with representatives of the armed forces, civil administration and the public. These committees will report, assess and track complaints of human rights violations by the armed forces. 

The act also needs to include provisions like:
The armed forces shall act in closest cooperation with the local civil authorities as much as possible. An arrested person shall not be interrogated by the armed forces. Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the case.
In a democracy, political power is the air of faith pumped up by the people in the tyre of a wheel. However, a tyre cannot protect itself from getting punctured, it is the road that needs to be smooth and the driver to be vigilant. But if the driver is racing and the road is rough, the pumping people would suffer. Partnership between Siddhant Sharma & Hritam Saha