Origin and validity of Armed Forces Special Powers Act, 1958.

Origin and validity of Armed Forces Special Powers Act, And Rule of Law.

The relevant provisions of the Armed Forces (Special Powers) Act, 1958 are as under:

'2. Definitions:-

In this Act, unless the context otherwise requires:-

(a) ………………………………………………………

(b) 'Disturbed area' means an area which is for the time being declared, by notification under Section 3 to be a disturbed area :

3. Power to declare areas to be disturbed areas – If, in relation to any State or Union Territory to which 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 Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area.

4. Special powers of the armed forces - Any commissioned officers, 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 firearms, ammunition or explosive substances;

(b) If he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilized as a hideout by armed gangs or absconders wanted for any offence;

(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 offense and may use such force as may be necessary to effect the arrest;

(d) Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongly restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.

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 office-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

6. Protection to persons acting under the 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 purported to be done in exercise of the powers conferred by this Act”.

Any discourse on Armed forces Special powers Act, without referring to Naga political problem would be like a discourse on theology without referring God, hence a brief political aspects of Nagaland State is necessary.

Naga History is very long and involved. The Philosophy of her origin very well reflects its political maturity and mirror, its thinking and view point of its times. It also gives a deep insight into its social, economic and political set up and approach to these problems. Nagas have problems which have taxed the minds of many of its leaders and forebears at different times and as yet many historical facts avoid solutions and continue to remain unsolved, thus, in a sense, history has not been kind to the Naga People.

Freedom is the gift of nature and the compromise of it is always the work of man. We have seen that Nagas were born free, subject only to the determination of its own will. The termination of Second World War and departure of Britishers from Naga Homeland followed by declaration of Indian Independence opened a new chapter of bloodshed, confusion and turmoil through out the entire Naga Hills. With the end of Colonial power, Naga people envisioned a new chapter of life and to be a master of her own home. However, Nagas found themselves enwrapped in a new political society ordering them this and that by someone they have never seen or heard of. A new institution of Law and the machinery associated with it began to operate on them and all these were seen by Naga people as unjust interference, as Naga Nationalism is not born out of human emotions but a genuine natural inherent rights.

The termination of Second World War Culminates in the formation of (N.N.C) 'Naga National Convention” through which Naga peoples express their collective opinion. Nagas were not against any man, Nation or system except as it was hostile to her freedom and human rights. Failure of various Talks and negotiations to reconcile the diverse claims of both sides resulted in clash of Arms between Naga Army, who were very ill equipped and the mighty Indian Armed Forces, who were deployed to control and liquidate the revolting Nagas, as openly declared by Governor Hyder Ali, which continues to Prime Minister Morarji Desai. The Indian Armed Forces were properly equipped to the hilt to deal with the voice of Naga freedom, which also includes legal equipment to deal with the problems with impunity. Infact if a stranger visits Nagaland, one wonder whether one is inside the battle Zone or in a civilized towns or villages, as the whole area of Nagaland is covered not by green grass and forest but by Army Camp with Army check post everywhere, with the power to shoot and kill on their subjective satisfaction, as the Parliament in its wisdom has taken away the power of life and death from the court, and has been conferred on the Armed Forces, under Armed Forces Special Powers Act, in the name of security of the state in aid of civil power.

This natural status and position of Naga people is declared by history itself and it is not the creation of man, and indeed in 1929, the Naga people made it very clear to Simon Commission that Nagas should be left alone in the event of its departure from British India. But this historical fact was purposely ignored by the Indian Government, as it was determined to annex Naga Hills at any cost, as the country was already partitioned by the creation of Pakistan. The Govt. of India was firmly resolved to force the Naga people to give up their birth rights and to achieve this ends, various political as well as military tactics were employed. Firstly, it concealed the real issue which was political issue and declared the problems only as a Law and order problems, just like the French Government against the Algerians, and clamped various special Laws to tackle the burning problems in Naga Hills, and elsewhere in India, due to the partition of India. To deal with this situation the Governor General issued four ordinances namely:-

The Bengal Disturbed Area (Special Power of Armed Forces) ordinances, 1947.

The Assam Disturbed Areas (Special Powers of Armed Forces) ordinances, 1947.

The East Punjab and Delhi Disturbed Areas (Special Powers of Armed Forces) ordinances, 1947.

The United Province Disturbed Areas (Special Powers of Armed Forces) Act, 1948. All these ordinances were replaced by the Armed Forces (Special Powers) Act, 1948. The Act continued till it was repealed by Act 36 of 1957. Thereafter the central Act was enacted by Parliament. It was known as the Armed Forces (Assam and Manipur) Special Powers Act 1958, which was amended and it is now described as the Armed Forces (Special Powers) Act, 1958 and it extends to the whole of North East States, with some minor changes in the new amendment of 1972.

The purpose of this article is not to discussed any political issue but to find out the legality of the Armed Forces Special Powers Act, in the name of security of the state, by undermining the rule of Law and Human Rights, as the Supreme Court ruled in the case of Naga People's Movement of Human Rights Vs Union of India, SCCC1998, wherein it upheld the validity of the Armed Forces Special Powers Act, in the name of the security of the State in aid of civil power. Indeed no one can blame the Supreme Court, as it is like a Lion under Solomon's Throne. But the debate goes on between pro Security of the state and value of human rights.

The principles of Constitutionalism and the Rule of law lie at the root of any Democratic systems of Government. At its most basic level, the Rule of Law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary State action. Rule of Law is supreme over the acts of the Government and the private persons. In short, one law for all, that is both for the Government and its citizen. All public power must find its ultimate source in a legal rule and the relationship between State and the individual must be regulated by the Rule of Law, and certainly not by killing the citizen through the instruments of law and without a remedy against such heinous illegal act. This has been recently demonstrated by Noam Chomsky, that 'Power Must Prove Its Legitimacy”.

Martial Law can be traced back to England starting from the age of Tudors and the Stuarts in the 14th Century when it was first utilized for the suppression of rebellion and disorders. It later came to be employed in the British colonies and dominions. In 1674, East India Company suppressed various mutinies by executing the ringleaders with the help of martial Law. In America martial Law was resorted in whisky rebellion in 1794, in Pennsylvania and Virginia and the Door's rebellion in Rhode Island in 1842. Martial law was also proclaimed in Jamaica, at the Cape of Good Hope, and at Ceylon in the time of General Browning in 1818. In 1798, martial law was proclaimed in Ireland and in Burma in 1842.

On the 13th April the Governor-General in Council, acting under the Bengal State Offences Regulation No.X of 1804, extended to the Punjab, by the Punjab Laws Act 1872, and made an order whereby, after reciting that he was satisfied that a state of open rebellion against the authority of the Government existed in the district of Lahore and Amristar, he suspended the functions of the ordinary criminal courts within those districts, as regard the trial of persons of the classes referred to in the Regulation, taken in arms in open hostility to the British Government, or in the Act of opposing by force of arms or authority of the same or in the actual commission of any overt act of rebellion against the state, or in abetting or openly aiding the enemies of the British Government, within those Districts and directed the immediate trial by court martial of those persons. Two days after the Jallianwala incidents, formal proclamation of martial law was made in Punjab, followed by various notification and measures were enforced, even after the dangerous atmosphere had passed away.

On 13th April 1919, Brigadier-General R.E.H. Dyer, ordered the troops to fire on the crowed of about 25 thousands men and women and children at Jallianwala Bagh, which killed nearly 400 persons, and about 1599 were wounded in ten horrible minutes. Of course the incident resulted in the trial of Mr. Dyer, before the Hunter committee, and from the said committee, we find the following expression typical of our Supreme court finding in the case hereto before mentioned, 'A situation which is essentially military must be dealt with in the light of military consideration which postulate the breadth of view and due appreciation of all the possible contingencies.”

The British Government observed that there are certain standards of conduct, which no civilized Government can with impunity neglect, and which Her Majesty's Government are determined to uphold, this principles is still cherished and uphold by the Government of India in the form of AFSPA. That Brigadier-General Dyer, conception of his duty in the circumstances in which he was placed, was so fundamentally at variance, and that it is impossible to regard him as competent to remain entrusted with the responsibilities, which his rank and position imposed upon him. The Commander in chief directed Brigadier-General Dyer, to resign his appointment and also informed him that he would receive no further employment in India, but there was glorification of General Dyer, both in England and in India by the public. Under martial law, the Indians suffered various atrocities, such as public flogging and hanging and other physical torture; it was aimed at the humiliation of the people and to instill fear psychosis, and public were forced to witness the sickening sight, as a show of deterrence.

The Indian leader expect brigadier General Dyer, to be impeached and immediate inquiry to be conducted on the spot, but inquiry was made only after passing the bill of indemnity. The story of Jallianwala Bagh, and all that followed in Punjab, scattered to the winds Mr. Gandhi's threadbare penitence for the violence of Indian mobs, and he poured out henceforth all the vials of his wrath against the policy adopted by the European officer high in rank and responsibilities, and even termed such acts as Satanic and declared his non cooperation movement, which resulted in Indian Independence in 1947.

The irony of Indian polity is that, the weapons and tactics which the European employed against them and against which they fought and won independence are adopted by themselves, and validating it by the Supreme Court in the name of Security of the State in aid of civil power, a law that permits the black cobra to swallowed the white Mongoose, sacrificing the Rule of Law and Human rights at the altar of Security of the State. Martial law is founded upon the principle that the State has a right to likened to the right of the individual to self defense. It is the public law of necessity and justifies its existence, and necessary measures the extent and degree to which it may be employed. It is invoked as an extreme measure, and rest upon the basic principle that every State has the power of self preservation, a power inherent in all States because neither the State nor Society would exist without it. Martial law is not defined in the Constitution, but it means the suspension of ordinary law and the government of a country or a part of it by military tribunals. In other words, it is a state of continued existence of Emergency, without time frame.

The Privy Council in Ex parte D.F.Marisa, a case from South Africa, held that the continued sitting of the civil courts was not a conclusive proof that a state of martial law does not exist. The fact that Armed Forces Special Powers Act, conferred enormous power on the Armed forces amount to martial law, where the military authorities can deprive citizen of their personal life, liberty and property or to do anything to the extent of killing, that they in their discretion consider necessary with impunity for legalizing their illegal acts.

According to Amnesty international, Impunity has been described as the failure to bring to justice those who commit serious abuses of human rights, and those who commit crimes safe in the knowledge that they will never face prosecution or punishment. Impunity sends the message to torturers that they will get away with it. Thus military necessity coupled with legal impunity is absolutely against the rule of law and extremely dangerous and negates Democracy, Human rights and the Rule of law in the present world, and such provisions in the Statue book is a blot on the whole legal system. The Armed Forces Special Powers Act of 1958, provide a right to the Rank of Havildar, to shoot to the extent of death on his subjective satisfaction, and it is this very provision which offend the Rule of law and Human rights. It is argued that such action will not be taken by the Armed forces, as certain dos and don'ts are prescribed by the Armed Head Quarter, but we would negate such conception from the historic Judgment of Kesavananda Bharati case, wherein the argument on behalf of the Union of India was negates from the words of W.B Yeats 'No Government has the right, whether to flatter the fanatics or mere vagueness of mind to forge an instrument of tyranny and say that it will never be used.”

Thus military necessity takes precedence over the rule of law and even a soldier of the lower rank can killed on his subjective satisfaction, and acts above God. Even God gave Adam and Eve an opportunity to explain and to give reason before they were expelled from Eden Garden. It is this offending provision which required serious consideration to balance the interest of the State and the citizen claim for the Rule of Law and the value and standard of Human rights today under U.N. regime to which India is a Member.

The UN charter, when adopted in 1945, charged the Organization with four main interrelated purposes namely peace and disarmament, human development, human rights and the strengthening of International law. Emerging from the experience and horrors of the second world war, these core principles were singled out as pillars on which a new world order could be built, with the ultimate goal of freeing mankind from the scourge of war. The relevance and importance of human rights during conflicts should never be under estimated. Of course humanitarian law or the law of war operates in conflict, against the worst violations of rights. But side by side with that body of law, the core of the human rights agenda also remains in operation. Promotion and protection of human rights within or during conflict may manifest itself in a number of ways, and it is an important element also in the settlement of conflict. It is vital to ensure that settlement is ethical agreements, which will promote and protect human rights rather than abridge them.

It was observed by Mary Robinson, while receiving Indira Gandhi Prize for Peace, Disarmament and Development, 'it is something of a truism that the seeds of new battle are often sown in the unfair settlement of the old. Human rights are integral to peace and security, economic development and social equality, as it propel peace and development, it reinforces the rule of law and links the goals of development, disarmament and peace. This same view was observed by Irene Khan, Secretary General, Amnesty International in Bombay, while attending World Social Forum in February 2004, 'What we see in fact is that Security does not come when you erode Human Rights”.

This led us to the issue of the rule of law in a democratic institution where the Rule of Law reign supreme, because it is the law that guide us through difficult societal challenges. It is law that balances the legitimate interest of the National security and the individual with his or her legitimate interest in liberty and personal security. But there are laws such as Armed Forces Special powers Act, which is subject to abuse. And this is what Louis Arbour pointed out during the Biennial Conference of the International Commission of Jurist in Berlin on 27th August 2004. The UNHCHR pointed out the Law of Apartheid South Africa, governed by law that regulated oppression and led to horrific denial of dignity. The law that must guide us is that law which is capable of delivering justice and providing remedies for preserving the rights of all adapting itself to the needs of a changing world. This is the role of human rights law. Here, I am reminded of the famous lines of noted Indian jurist Nani A.Palkhivala, 'National integration is born in the heart of the citizen. When it dies there, no Army, no Government, no Constitution can save it”.

In the case of CLAHRO versus P.L.Kukrety, G.O.C. Assam Rifles, which was a case of personal liberty decided by B.L.Hansaria and S.N.Phukan, JJ, the Gauhati High Court, observed 'Rule of law does not cease to function even under difficult circumstances. The clash of arms cannot drown the voice of law. It is in difficult time that our concern for the rule of law is tested. A balance between crushing of violence and crushing of liberty has to be found and the legislature has itself done so. We are a signatory to the International Covenant on Civil and Political rights; let the armed forces undergo the discipline of fundamental rights also when operating against their own countrymen”.

Supreme Court had an occasion to decide the issue of right to life in the famous Habeas corpus case, in which the majority held that the President under Article 359 (1) can suspend during the period of emergency the right to move the court for enforcement of fundamental rights guaranteed by Article 21. Happily the said observation of the majority was done away by the 44th amendment, but I would like to quote the golden words of Justice Khanna:-

'What is at stake is the rule of law, if it could be the boast of a great English judge that the air of England is too pure for a slave to breathe, cannot we also say with justifiable pride that this sacred land shall not suffer eclipse of the Rule of Law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive power against which there can be no redress in courts of law, even if it chooses to act contrary to law or in arbitrary and capricious manner. The question is not whether there can be curtailment of personal liberty when there is threat to the security of the State. I have no doubt that there can be such curtailment, even on an extensive scale, in the face of such threat. The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat”.

It is here we remind ourselves of Louise Arbour, statement during the Berlin conference, 'the judiciary should not surrender its sober, long-term, principled analysis of issues to a call by the executive for extraordinary measures grounded in information that cannot be shared, to achieve result that cannot be measured. It is for judges to rely on legal principles to articulate and apply the parameters of deference when human rights are in jeopardy”.

In the United States the principle of access to the courts was recently vindicated by the Supreme Court in Hamadi and Rasul decisions, pertaining to Guantanamo Bay Naval Case. Justice O'Connor stated in her plurality opinion 'as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the National security of the United States, during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.” Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing Combat. It is equally vital that our calculus not give short shrift to the values that this country holds dear to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we fight aboard. The court resoundingly declared 'State of war is not a blank check for the President when it comes to the rights of the Nation's citizens.”

In England there was no suspension of the power of the courts to issue a writ of habeas corbus during the first and the second world wars, the same was with India, during the Sino-Indian hostilities of 1962, and the Indo-Pakistan wars of 1965, and 1971, because India being one of the torch bearer of human rights led by Mahatma Gandhi, starting from South Africa.

International lawyers and academicians know that the presumption of innocence is non-derogable right under international law. Even in today's highly-charged atmosphere of fear and uncertainty the recent acquittals in high profile terrorism cases in a number of countries including Netherlands, Italy and Japan teach us that it pays to be vigilant in upholding the presumption of innocence. Nowhere can vigilance be the case of Mr.Mzoudi, in Germany, who was acquitted by a court in Hamburg, of helping the 11th September highjackers. The court reviewed the evidence presented and found that it was insufficient to convict him.

Article 4 of the International Covenant on Civil and Political Rights provide the State the leeway to deal with extra ordinary situation while remaining within the legal framework. Its provisions are for exceptional situations only, namely, those in which the life of the nation is threatened. But the said Article resoundingly declared that certain rights are never subject to derogation, regardless of the nature of the emergency. It is but essential that State ensure that the National security is not pursued with a single-minded zeal that leads us to give up our freedom in exchange for our security. Thus in the name of Security of the State we cannot trade off Human Rights. We all wish to live in peace and without fear and this is the dream of great Indian poet Rabindranath Tagore:-

'Where the mind is without fear and the head held high, Where Knowledge is free; Where the world has not been broken up into fragments, By narrow domestic walls; Where words come out from the depth of truth; Let my Country awake”.

On 24 November 2000, Ministry of Home Affairs, Government of India set up a committee for reforming criminals justice system headed by former Chief Justice of Kerela, and a former member of National Human Rights Commission, Justice V.S.Malimath. The Malimath Committee submitted its report in 2003, the committee suggested many innovative changes in Indian criminal Justice system, but sadly the Malimath committee did not consider the Armed Forces Special Powers Act, which has been operating in entire North East States, since the time of Indian Independence.

Malimath Committee came down heavily on some of the provisions under POTA, but failed to address those laws which violates human rights standard under Universal Declaration of human rights read with ICCPR and ICESCR and other Human rights instruments. Government of India is a party to almost all the International Instruments on Human Rights, yet it continued to retain Armed Forces Special Powers Act in the Statue book, and this required a fresh look. If India wishes to declare to the world as the torch bearer of Human Rights as declared by Mr. Omar Abdullah, Minister of State for External Affairs at Durban conference on 2 September 2001: Government of India should champion the human rights at home first. India cannot be a violator of Human Rights at home and declare to the world that it espouses and champion the cause of Human rights.

That Armed Forces Special Powers Act is not only abusive in nature but also deceptive like 'Dr.Jekyll and Mr.Hyde” as it neither take the shape of Martial law nor ordinary criminal law, but a different legal status with elasticity, which can shape to suit itself to the circumstances that benefit the Armed Forces. Thus on one side it hides its real face while on the other it shows a normal condition. How long this state of affairs will go on. No legal power can change the Naga historical facts and Government of India should settle Naga political problem in democratic manner and not by delaying tactics or even by might, and therein lies the benefit for both sides. I am aware of the facts that every Indian soul aspire for integration and assimilation, as much as every Naga soul aspire for her integration and assimilation to grace and enrich its own identity. If we examine this basic facts and the fundamental principle of human rights instruments there is a need to re-write or do away with the Armed Forces Special Powers Act.

Supreme court is playing a vital role in promoting international law in municipal law, which is reflected in some of its illustrated cases such as the Vishaka case, wherein the Court held that 'it is now accepted rule of judicial construction that regard must be had to international conventions and norms of construing domestic law when there is no inconsistency between them and there is a void in the domestic law”. Here the court used Article 11 and 24 of CEDAW. Again international doctrine was expanded in the case of Nelabati Behara's case, even though the right to compensation was there for more than 20 years as constitutional rights of compensation and the court referred to Article 9(5) of the ICCPR. The court also used Article 12 of the UDHR read with Article 17 of the ICCPR in the case of tapping of telephonic conversation in PUCL case. Having rendered such celebrated judgments in the field of international law why should an Acts like Armed Forces Special Powers Act continued in the statue book to take life by their subjective satisfaction in the name of security of the state in aid of civil power, a power which is not even conferred on the President of the United States of America even in times of war.

The United Nation's Social and Economic Council endorsed the general agreement reached at the Baguio Seminar 'the writ of habeas corpus or similar remedy of access to the courts to test the legality and bonafides of the emergency powers should never be denied to the citizen” but the present question is not the access to the court, but right to life which has been taken away from the Court and has been conferred on the Armed Forces to be exercise on their subjective satisfaction with impunity, a right which is fundamental in any system of laws, be it National or International or even Customary, and with this, I leave the issue open to the readers, as to what this laws mean to Indian Democratic institution with the Rule of Law as the signatory tune of the Constitution.

The author can also be reached at assumiki@yahoo.com.


on 30 June 2017
Published in Criminal Law
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