HUMAN RIGHTS VIS-À-VIS SECURITY FORCES IN INDIA

CHAPTER IV HUMAN RIGHTS VIS-À-VIS SECURITY FORCES IN INDIA Dalai lama India, widely hailed as the world's largest democracy, has a vibrant press and an active civil society, but also suffer from a series of low intensity conflicts and proxy wars conducted by Pakistan and various radical Jehadi outfit through the instrumentality of terrorism, Islamic terrorism, Communist terrorism, Sikh terrorism and Ethnic terrorism, are the badly dangers nation faces today. Unfortunately, for a long time after independence, the security forces have engaged in counter insurgency operations for more than fifty years in the North East and for more than two decades in Jammu and Kashmir to aid and assist the State Government authorities. In carrying out these tasks, the security forces has time and again, come under criticism for human rights violations. 1 Torture, extra-judicial killings and forced disappearances are a daily reality in India. The armed forces, security and paramilitary forces use violence and often deadly measures to intimidate and punish citizens for a range of actual or perceived transgressions, crimes and beliefs. A critical issue is impunity: officials and members of the security services who abuse their power are rarely if ever brought to justice for torture, arbitrary detention and extra judicial killings in places like Jammu and Kashmir, the insurgency affected states in the North East, and in areas where there is an extremist Maoist movement by group known as Naxalites. Without any fear of prosecution or civil suit, Indian officials are relatively free to commit human rights abuses, while victims are essentially unable to attain justice or seek restitution. Whether it be military and paramilitary atrocities in Jammu and Kashmir, government official sanction of communal violence in Gujarat, counter insurgency abuses in the North east or Naxal areas, encounter killings or custodial violence by police 1 A.G Noorani and South Asia Documentation Center, Challenges to Civil Rights Gurantees in India, South Asia Documentation Centre, Oxford, University Press, New Delhi, 2012, p.33. 142

throughout the country, the culture and legal structure of impunity has allowed the most fundamental violations of human rights to go unchecked. 2 India has signed and ratified a number of international standards and conventions, including the International Covenant on Civil and Political Rights (1979) and the United Nations Convention on the rights of the child (1989), signaling its commitment to upholding the human rights of its citizens. India has also signed, but not yet ratified, the United Nations Convention Against Torture (1984) and the United Nations International Convention for the Protection of All Persons from Enforced Disappearances (2006). In addition to these international standards, a number of provisions in the ordinary domestic law seek to protect individuals from abuses by state officials. It is clear, therefore, that the Indian State has a strong theoretical commitment to fundamental rights for all. There remains, however, an unacceptable gulf between the theoretical commitment to fundamental rights and the successful realization of these rights in practice. Despite its strong democratic constitutional model, international obligations, criminal law protections and theoretical commitments, security forces are violating the human rights of its citizens. Since independence, successive Indian governments have introduced a range of security and anti-terrorism laws to combat civil unrest and dissent. The Indian government in a variety of circumstances, echoing the system of colonial governance under the British. For example, the Armed Forces Special Powers ordinance was introduced by the British in -introduced by Indian Government in 1958 as the Armed Forces Special Powers Act (AFSPA) to quash the movements for selfdetermination emanating from the northeastern states. This draconian law remains in force today in much of the Northeast and in Kashmir. 3 -terrorism laws with their in-built protections of state agents run contrary to the letter and spirit of the Indian Constitution. The Indian Government has introduced a range of laws to combat civil unrest and to fight terrorism. 2 3 Raj Mohan Pal, Human Rights Issues and other Radical Essays, Aakar Books, Delhi, 2010, p.167. J.S.Verma, The New Universe of Human Rights, Universal Law Publishing Co. Pvt. Ltd, Delhi, 2004, p.57. 143

Examples of these repressive anti-terrorism laws include: the Armed Forces Special Powers Act (AFSPA) of 1958 and its extension to Kashmir AF (J & K) SPA in 1990; the Terrorist and Disruptive Activities Act (TADA) of 1985; the Prevention of Terrorism Act (POTA) of 2002 and the Unlawful Activities (Prevention) Amendment Act (UAPA) of 2004. These successive laws have strengthened the power of the state over the individual and continue to undermine the fundamental rights of Indian citizens. They give extra powers to the police, army and security forces and often deviate from accepted norms of criminal justice. Two hallmarks of anti-terrorist legislations are: the allowance for confessions obtained in police custody and a presumption against attaining bail. Despite the numerous domestic legal provisions prohibiting torture, extra-judicial killings and forced disappearance, the actions of the police and military forces are often sanctioned by law and are directly at odds with the legislation that seeks to protect the abuse of detainees and civilians. The Armed Forces Special Powers Act of 1958 (AFSPA), for example, gives military forces wide powers of arrest, the right to shoot to kill and the right to occupy or destroy, property in counter-insurgency operations. State officials justify the powers given to the military and security forces on the basis that the Act is only in force in those areas where national security is at risk due to armed combatants and terrorists. AFSPA and many other national security laws are anti- tradition. The rule of law is steadily eroded when legal provisions such as those contained in AFSPA, TADA, POTA and UAPA are enacted to opt out of fundamental right standards. 4 Under the anti-terrorism and security laws and under ordinary criminal law, agents of the state are provided with immunity from prosecution for arts carried out in the course of their duties unless expressly sanctioned by the Central or State governments. This has led to an unacceptable climate of impunity in which the police and the armed forces are shielded from- prosecution for human rights atrocities. In addition to the protections from prosecution provided by anti-terrorism and security 4 Criminal Law Journal, Vol.114, April, 2008, p.96. 144

laws, the police and security forces are given legal immunity from acts of torture and extrajudicial killings under provisions of the Code of Criminal Procedure. A member of the armed forces cannot be prosecuted for acts carried out while on official duty without the prior permission of the Government as provided by Section 45 and 132 of the Code of Criminal Procedure. Section 197(2) of CrPc has been invoked to prevent the trial of members of the armed forced alleged to be responsible for human rights abuses. Human Rights reports from time to time have indicated also that a number of human rights abuses have taken place despite extensive constitutional and statutory safeguards. Violation of human rights by security forces has also been reported by many organisations. Since a very large number of armed forces are deployed in low intensity conflict operations in various parts of the country, it is imperative that all members of the armed forces be aware of the various aspects of human rights so that they are respected at all times and also to avoid allegations of violation of human rights while operating in low intensity conflict operations. 5 The significance of Human Rights for the Security Forces need not be over emphasized. As a matter of fact, security forces occupy a vital position in the long chain of the state apparatus for translating human rights into reality. After all, they are the personnel in action charged with the responsibility of protecting and promoting human rights, both in times of peace and war. To discharge their duty in a truly professional manner, security forces must not only possess a sound knowledge of human rights law but also their drilling at training centers and institutions so as to develop a human rights culture. This chapter aims to provide on overview of the issues relating to human rights and security forces in India. The chapter is organized into four parts: 1) Awareness of human rights amongst Security Forces in India. 2) Review of Repressive Laws in India and Human Rights Violations. 3) Human Rights and Security Forces in low intensity conflicts. 4) Role of NHRC against the violation of human rights by security forces. 5 Reena Laitonjam, South Asia Politics, Vol.6, 2007-2008, p.47. 145

4.1 Awareness of Human Rights Amongst the Security Forces The Indian Security Forces are divided into three broad categories: 1) The Armed Forces of the Union- the Army, Navy and Air Force. 2) The Central Paramilitary Forces(CPMF), Central Reserve Police Force (CRPF), Assam and Rastriya Rifles, Indo- Tibetan Border Police Force(ITBPF), and the National Security Guards, Defence Security Corps, the Railway Protection Force, the Central Industrial Security Force, the Special Frontier Force and the Indian Coast Guard. 3) The Indian Police Force- Police Forces of States and Union Territories. 4.1.1 Awareness of Human Rights within the Armed Forces of the Union Primarily being defence forces-meant to be deployed against external aggression, humanitarian laws are disseminated to the armed forces in their military institutions and training centres; the informal dissemination is carried out in the homes, schools and colleges- in fact everywhere much before the defence personnel start donning uniforms. It is interesting to know that the Indian Army, in 1993 March, on its own and even before the enactment of the Protection of Human Rights Act, 1993 or even the establishment of the National Human Rights Commission, had established a Human Rights Cell at Army Headquarters. This Cell was created without any separate resources but within the authorized establishment of the Indian army. Till today this Cell is fully functional with a full-time director of the rank of Colonel, assisted by a Lieutenant Colonel and other staff. This cell functions under the command of a major general who heads the Additional Directorate of Discipline and Vigilance located at Sean Haven at the Defence Headquarters, New Delhi. This cell is in close liaison with the National Human Rights Commission which is presently located close-by at Faridkot House. 6 The Indian army has designated officers of the rank of Colonel at its various operational headquarters, from Army Headquarters down to Divisional Headquarters, to monitor and 6.D.U. Law Journal, Vol. XI, Part-II, 2006, p.131. 146

follow up reports of human rights violations by its personnel. These cells are in close contact with human rights agencies, NGOs, ministries and international agencies with a view to minimize human rights violations. They work swiftly to obtain information and carry out verification on all human rights issues mostly pertaining to conduct of search operations or illegal arrest. As an educated segment of society, Indian Army soldiers are conscious of their own Human Rights and those of the public. Indian Army takes pride in having Human Rights originated right from Army Headquarters level down to formations. Indian Army also has institutionalised training both for officers and men in various courses run by the Army at a very basic level on Human Rights to create awareness amongst all ranks. Training establishments like College of Combat, Infantry School, Defence Service Staff College, and Institute of Military Law have Human rights as a subject, as a small part of their curriculum. The focus of their training on the subject, at the junior level includes developing of their reflexes and thus to react to different situations in keeping with the Human Rights. The Chief of the Army Staff had in 1993 issued the "Ten Commandments" 7 for strict observance for the forces engaged in the counter-insurgency operations. In brief these are: No rape. No molestation. No inhuman torture. Death preferable to military disgrace. No meddling in civil administration, i.e., land disputes or quarrels. Competence in platoon/company tactics with innovations. Willingly carry out civic action. Maintain good relationship with media use it as a force multiplier' and not as a 'force degrader'. Respect human rights. Only fear God, uphold the path of righteousness and enjoy serving the country. 7 d Forces, Criminal Law Journal, Vol.114, April, 2008, p.107. 147

As a corollary to the Ten Commandments of the Chief of Army Staff, the Corps Commander had further issued Ten Directives for strict compliance. These in brief are: Display compassion and humanity towards local "populace. Do not look down upon local customs and traditions. There are no insurgents here only misguided countrymen. Never molest women they are our sisters and mothers. Do not harm children they are our heritage. No reprisals under any circumstances. Apprehendees to be treated with respect. Honour democratic norms and rightly adhere to human rights. Constantly seek contact with us. Aggressiveness and spontaneous reaction is the key to success and survival. 8 4.1.2 Sensitizing of Human Rights among the Border Security Force Personnel The BSF came into force on Dec. 1, 1965. Today, it is one of the largest paramilitary forces not only of India but also of the whole world with over 1,50,000 men and officers trained not only in war time operations but also in internal security duties and border surveillance. Newly trained personnel, before deployment, are imparted 15 days induction course for proper training in Human Rights. It is sheer innovativeness, ground experience and commitment to Human Rights that BSF in consultation with ICRC brought out a set of rules to be acted upon during counter-insurgency operations. Those rules were subsequently adopted as a handbook under the authority of the Director General, BSF, whose violation could lead to punitive action against the erring troops. 9 8 9.D.U. Law Journal, Vol. XI, Part-II, 2006, p.133. Air Commodore Ranvir Kumar and Group Captain B.P Sharma, Human Rights and the Indian Armed Forces, Sterling Publishers Pvt. Ltd, New Delhi, 1998, p.223. 148

Briefly, the operative portions of the instructions contained in the handbook are: I. Points to be kept in mind during interrogation: (a) Never adopt torture but follow the following principles: (i) Verification (ii) Identification (iii) Motivation (iv) Confirmation (v) Tension but not torture II. Points to be remembered while dealing with terrorists (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) Distinguish between a terrorist and a common man. Do not arrest an innocent person. Warn before firing on the terrorists. Do not indiscriminately use force on terrorists after their capture. Disarm the terrorists and hand them over to the higher authorities. Give first aid to the injured terrorists. Fire on terrorists after proper targeting. Do not indiscriminately fire when the terrorists are hiding behind the public. III. When firing is necessary (i) (ii) Do not resort to indiscriminate firing. When being fired upon, do not use indiscriminate firing but use target oriented firing and lastly look after wounded civilians and terrorists. IV. Precautions during cordon or search operations (i) (ii) (i) Do not indulge in unwanted destruction. Do not misbehave with ladies and children. Do not steal. The subject of Human Rights has been included in all the basic training courses of the force. To keep its personnel updated with the latest developments in Human Rights, the 149

BSF keep on conducting seminars capsule courses and workshops on Human Rights. 10 4.1.3 Human Rights amongst the Central Reserve Police Force Personnel The Central Reserve Police Force (CRPF), Constituted under Central Reserve Police Act, 1949, is the premier Armed Force of the Union for internal security management. It is the only Central Police Force which has a system of graded response from 'Lathi to Bullet.' It also has a women wing. The present strength of the Force is about 135 battalions. Nearly 84% of the force is deployed in the disturbed areas of Jammu and Kashmir, North East and Andhra Pradesh. It was the frontal force for dealing with terrorism in Punjab. A multi-tier sensitisation of the Force personnel about Human Rights is done through the following activities: (a) (b) (c) Inclusion of Human Rights inputs in all basic, refresher and promotional courses at various levels. Organisation of a three day capsule course on Human Rights for each force personnel once in a year at unit level. Organisation of seminars, debates and workshops at field and force levels. The following list of Do's and Dont's with regard to observation of Human Rights by Force personnel in their operations has been issued by the CRPF Directorate General, both in Hindi and English. 11 Human Rights: Do's and Dont's Do's Do respect every individual as a human being irrespective of his caste, creed, religion, region or nationality. Do remember that you are a member of the public and you have been employed to act on their behalf. 10 11 Air Commodore Ranvir Kumar and Group Captain B.P Sharma, Human Rights and the Indian Armed Forces, Sterling Publishers Pvt. Ltd, New Delhi, 1998, pp.225-226 Omar Khalidi, Khaki and Ethinic Violence in India: Armed Forces, Police and Paramilitary Forces during Communal Riots, Three Essays Collective, Delhi, 2009, p.165. 150

Do always keep the welfare of the people in mind and be sympathetic and considerate towards them. Do render all assistance to the needy irrespective of his economic, social or political status particularly children, women, old and infirm persons. Do enforce the law firmly and impartially without fear or favour, malice or vindictiveness. Do rise above personal prejudices of any kind and promote harmony amongst all people transcending religious, linguistic regional and sectional diversities. Do provide protection to a person in custody even if he is a criminal, terrorist or insurgent and ensure that while in custody no physical or mental harm is done to him. Do remember that you have a special responsibility to protect the interests of weaker sections of society including women and children. Do scrupulously respect the privacy of every individual while performing your duties. Do remember that honest, courteous, dependable and impartial conduct makes enforcement of law acceptable to the common man and earns their respect, cooperation and trust. Dont's Do not try to achieve results at the cost of human dignity and values. Do not usurp the functions of judiciary in any circumstance and punish the guilty to avenge or teach a lesson. Do not indulge in molestation of women or any person. Do not damage or take away property of any person. Do not use more force than what is authorised by law or required for the achievement of task assigned. Do not use force in panic to avoid injury to innocent persons specially women and children. Do not carry out personal search of women without Mahila constables or respectable women of the area. Do not indulge in custodial violence or maltreatment. It is illegal and 151

counterproductive. Do not fan hatred, anger and partisanship. Do not hurt the religious feelings of any person by desecrating any religious place or by showing disrespect to any religion. 12 4.1.4 Awareness of Human Rights within the Indian Police Forces As in other forces, considerable efforts are made to disseminate Human Rights amongst the States' police forces of the country. Human Rights form a regular course of instructions in all police academies, schools, and training institutions. Following recommendations of the Third Police Commission, regular seminars, workshops and discussions are conducted on Human Rights from time to time. The police officers at the middle and higher levels are exposed to the principles of Universal Declaration Of Human Rights and international instruments on Human Rights, Human Rights relevant to the criminal procedure in India, relevant areas of the Indian Constitution, the Supreme Court of India and case laws on Human Rights, and NHRC (its organisation, role and function). The United Nations General Assembly had on 17 December, 1979, adopted a code of conduct for the law enforcement officials. In India, the following Code of Conduct for police was adopted and issued by the Government of India in July 1985. 13 Code of Conduct for the Police The code, interalia, emphasises the following: (1) The Police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it. (2) The Police should enforce the law firmly and impartially, without fear or favour, malice or vindictiveness. (3) The Police should recognise and respect the limitations of their powers and functions. 12 13 Omar Khalidi, Khaki and Ethinic Violence in India: Armed Forces, Police and Paramilitary Forces during Communal Riots, Three Essays Collective, Delhi, 2009, p.167. National Human rights Commission, Manual on Human Rights for Police Officers, New Delhi, 2011, p.10. 152

(4) In Securing the observance of law or in maintaining order, the Police should as far as possible, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used. (5) The Police should always keep the welfare of the people in mind and be sympathetic and considerate towards them. (6) The Police should always place duty before self, should remain calm in the face of danger, scorn or ridicule and should be ready to sacrifice their lives in protecting those of others. (7) The Police should always be courteous and well-mannered; they should be dependable and impartial. (8) The Police should renounce practices derogatory to the dignity of women and disadvantage segments of the society. 4.2 Review of Repressive Laws in India and Human Rights Violations The problem of terrorism is not a new one in human rights agenda. Acts of terrorism has imperiled and killed innocent people, jeopardized fundamental freedoms and seriously impaired the dignity of human beings for so many years. States have therefore long been under an obligation to take measures to protect the fundamental rights of everyone within their jurisdictions against terrorist acts. rdinary -ranging challenges with and what are the implications for human rights can be a useful exercise. If one looks at the history of legislation on terrorism or disturbance, there was the Preventive Detention Act 1950 at the advent of Independence followed by the Punjab Security Act 1955, Assam Disturbed Areas Act 1955, and the Armed Forces (Assam and Manipur) Special Powers Act, 1958. In the 1960s and 1970s there were two major acts passed in each decade and in the 1980s there were five acts and in the 1990s there were two acts. There are about 20 to 153

30 repressive acts passed either at the central or the state levels. 14 Since the 1980s, specific laws came to be enacted to address the issue of terrorism. These include the Terrorist and Disruptive Activities (Prevention) Act (TADA) 1987, the Prevention of Terrorism Act (POTA) 2002 and the amendments to Unlawful Activities (Prevention) Act (UAPA) in 2004 and 2008. By enacting these laws, the government has treated terrorism to be a special crime that warrants special and stringent laws. (i) Terrorist and Disruptive Activities (Prevention) Act (TADA) was formulated in defined under this law. The judiciary has stated that it is not possible to give a precise definition of terrorism, but that what distinguished terrorism from other forms of violence was the deliberate and systematic use of coercive intimidation. From 1984 onwards, approximately 75000 people were detained under TADA; of these, at least 73000 cases were subsequently withdrawn for lack of evidence. The conviction rate under TADA was less than one percent, indicating that more than 99% cases booked under the law were not backed by substantive evidence. Though the Supreme Court upheld the validity of the TADA in Kartar Singh vs. State of Punjab, the law was criticized by human rights organizations as well as political parties on various counts. Justice Pandian, who led the majority judgment in Kartar spurt in the illegal criminal activitie failed to take into account the harm done to a large number of innocent people. lapse in May 1995 by the P.V. Narasimha Rao government, due to reports of widespread abuse. However cases initiated under it continued to have legal validity and remained pending in courts. 15 14 15 ndian Experience with Economic and Political Weekly, June-July, 2009, p.77. Economic and Political Weekly, June-July, 2009, p.79. 154

(ii) Prevention of Terrorism Act (POTA) was enacted by the National Democratic Alliance (NDA) government in 2002, against the backdrop of the attacks on the World Trade Centre in New York on 11 September 2001. Several attacks in the state of Jammu and Kashmir, and the attack on the Indian Parliament in December 2001 acted as catalysts for the enactment. POTA allowed for detention of a suspect up to 180 days without filing charges in court. It also allowed authorities to withhold identity of witnesses, treated confessions to police as admissions of guilt, and included provisions for banning organizations and for cracking down on funding for terrorism. One of the most high-profile arrests under POTA was not of a terrorist, but of a politician from Tamil Nadu V. Gopalaswami alias Vaiko. It was also widely reported that in 2002-2003, the law was misused to arrest and detain hundreds of Muslims in Gujarat for years without a trial. Syed Abdul Rehman Geelani, described as a mastermind in the attack on the Indian Parliament in 2001, was given a death sentence by a POTA court but was subsequently acquitted by the High Court and the Supreme Court in 2005 because of lack of evidence. Over a 100 Parliamentarians had signed a petition for repeal of POTA, and the National Human Rights Commission pointed to its misuse. POTA was repealed in 2004. Prime Minister Manmohan Singh, while expressing the decision to repeal the law, stated any cause testified in public. The Tribunal highlighted the fact that adivasis and dalits who were engaged in land reforms and protested against bonded labour were falsely labeled Naxalites and booked under this law, and that charges under POTA had also been made against children, illiterate persons and poor farmers. 16 (iii) Amendments to Unlawful Activities (Prevention) Act (UAPA), 1967: The United Progressive Alliance (UPA) government had repeatedly said that India already has a number of stringent laws such as NSA and UAPA, and hence there 16 Economic and Political Weekly, Vol.38, No.18, May, 2003, p.1741. 155

was no necessity to enact another specific anti-terror law. However, when it repealed POTA in 2004, it brought about amendments to UAPA. These included increased punishment for committing acts of terrorism, enhanced police powers of seizure, communication intercepts made admissible as evidence and extended periods of detention without charges to 90 days from the original 30 days. In the backdrop of terrorist attacks in Mumbai in November 2008, the UPA government introduced anti-terrorism provisions by bringing about further amendments to the UAPA. Detention without bail for up to 180 days for Indians, indefinite detention without bail for foreigners and reversing the burden of proof in many instances are some of the amendments brought about. (iv) Maintenance of Internal Security Act (MISA) was a law passed by the Indian Parliament in 1973 under the leadership of Prime Minister Indira Gandhi. This law was enacted purportedly to counter civil and political disorder in India as well as foreign-inspired sabotage, terrorism and threats to national security. It gave the Prime Minister and the enforcement agencies powers of indefinite preventive detention of individuals, search and seizure of property without warrants, in direct contravention of Constitutional guarantees of fundamental rights and established standards of human rights. During the national emergency in 1975-77, thousands of people, including political opponents, are believed to have been arbitrarily arrested, detained, tortured and in some cases, forcibly sterilized. Lalu Prasad Yadav, L.K.Advani and Atal Bihari Vajpayee are some notable political leaders imprisoned under this law. The law was repealed in 1977 pursuant to a change of government. (v) Armed Forces (Special Powers) Act (AFSPA) is a law that has been in operation since 1958. It was first used in Nagaland in response to the Naga independence movement in the late 1950. It was subsequently introduced in Mizoram and Manipur, and briefly in Assam. In 1972, it was extended to all the seven North Eastern states. It is said that the AFSPA is a colonial instrument, modeled on the Armed Forces Special Power Ordinance 1942, which had been enacted to neutralise the Quit India Movement. AFSPA grants power to the Central government or the governor of the state to declare any par 156

the opinion that the use of armed forces to aid civil power is necessary by giving notification in official gazette. In the backdrop of the growing insurgency in Jammu and Kashmir, the Central government issued a similar enactment known as the The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. It empowers the Governor or the Central government to declare any part vent (a) terrorist acts aimed at overthrowing the government, striking terror in the people, or affecting the harmony of different sections of the people or (b) activities which disrupt the sovereignty of India, or cause insult to the national flag, anthem 17 4.2.1 Armed Forces Special Powers Act and its Provisions The provisions of the act are similar to those of the first passed in 1958. The basic features of the act are as follows:- Section 1. This section states the name of the act and the areas to which it extends. Section 2. This section sets out the definition of the act. Sub section (a). the armed forces were defined as "Military forces and air forces operating as land forces, and includes any other armed forces of the union so operating". Sub section (b). Sub section (c). It states that all other words and expressions used but not defined in the act will have the meanings assigned to them in the Army Act of 1950 or Air Force Act 1950. Section 3. It grants the power to declare an area disturbed to the Central Government and the Governors of the state. 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 17 Economic and Political Weekly, June-July, 2009, p.83. 157

gazette, declare the whole or such part of such state or union territory to be a disturbed area. Section 4. It enumerates the special powers of the armed forces, which are deployed in a state or a part of the state to act in aid of civil power. The section reads that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, Sub section (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. Sub section (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 utilised as a hideout by armed gangs or absconders wanted for any offence. Sub section (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. Sub section (d). Enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully 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. Section 5. This section states that any person arrested and taken into custody under this act shall be handed over to the officer-in-charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest. 158

Section 6. This section 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, except with the previous sanction of the Central Government. 4.2.2 Argument against the legality of Armed Forces Special Powers Act Various Human Rights Organisations have pointed out many shortcomings of the Armed Forces Special Powers Act and blame it to be illegal. Some of the important aspects are enumerated in succeeding paragraphs. Several cases challenging the constitutionality of Armed Forces Special Powers Act are pending before the Supreme Court. The following provisions of the Indian laws and International laws are alleged to be contravened by this act:- (i) Name of the Act: special powers to be conferred upon members of the armed forces in disturbed eyebrows of people. (ii) Over-riding Powers of Central Government: As per provisions of this act either State or the Central Government is empowered to declare an area as disturbed area. The Central Government may overrule the state government in case of any dispute between the two. This provision at times creates problems. The 1972 amendments to the AFSPA extended the power to declare an area disturbed to the Central Government. In the 1958 version of the AFSPA only the State Governments had this power. In the 1958 debates the authority and power of the states in applying the AFSPA was a key issue. The Home Minister had argued that the AFSPA chose. 18 The 1972 amendment shows that the Central Government is no longer concerned with the state's power. Rather, the Central Government now has the ability to overrule the opinion of a State Governor and declare an area disturbed. 18 Mainstream, Vol.32, July, 2004. 159

This happened in Tripura, when the Central Government declared Tripura a disturbed area, over the opposition of the State Government. (iii) Violation of Right to Life: Article 21 of the Indian Constitution guarantees the right to life to all people. It reads, "No person shall be deprived of his life or personal liberty except according to procedure established by law." Judicial interpretation that "procedure established by law means a "fair, just and reasonable law" has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi. This decision overrules the 1950 Gopalan case which had found that any law enacted by Parliament met the requirement of "procedure established by law". Under section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of force. The offences under section 4(a) are: "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 fire-arms, ammunition or explosive substances". None of these offences necessarily involve the use of force. The armed forces are thus allowed to retaliate with powers which are grossly out of proportion with the offence. Justice requires that the use of force be justified by a need for self-defense and a minimum level of proportionality. As pointed out by the UN Human Rights Commission, since "assembly" is not defined, it could well be a lawful assembly, such as a family gathering, and since "weapon" is not defined it could include a stone. This shows how wide the interpretation of the offences may be, illustrating that the use of force is disproportionate and irrational. 19 (iv) Violation of Right of Equality: Article 14 of the Indian Constitution guarantees equality before law. This article guarantees that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." The AFSPA is in place in limited parts of India. Since the people 19 Economic and Political Weekly, Vol.44, 2009, p.11. 160

residing in areas declared "disturbed" are denied the protection of the right to life, denied the protections of the Criminal Procedure Code and prohibited from seeking judicial redress, they are also denied equality before the law. Residents of nondisturbed areas enjoy the protections guaranteed under the Constitution, whereas the residents of the Northeast live under virtual army rule. Residents of the rest of the Union of India are not obliged to sacrifice their Constitutional rights in the name of the "greater good". People residing in disturbed areas are denied this right due to provision of section 6 of the act which prevents citizen from filing a suit against the member of armed forces without the sanction of the Central Government. 20 (v) Violation of Protection Against Arrest and Detention: Article 22 of the Indian Constitution states that "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate." The remaining sections of the Article deal with limits on these first two sections in the case of preventive detention laws. On its face, the AFSPA is not a preventive detention law therefore the safeguards of sections (1) and (2) must be guaranteed to people arrested under the AFSPA. Section (2) of Article 22 was the subject of much debate during the framing of the Indian Constitution. There was argument over whether the time limit should be specified or whether the words "with the least possible delay" should be used. Dr Amedkar, one of the principal framers of the Indian Constitution argued that "with the least possible delay" would actually result in the person being held for a shorter period of time, whereas "twenty- four hours" would result in the person being held for the maximum time of twenty-four hours. The application of these terms has since shown that a specified time period constitutes a greater safeguard. Under the AFSPA, the use of "least possible delay" language has allowed the security forces 20 of Review, Economic and Political Weekly, Vol.44, 2009, p.15. 161

to hold people for days and months at a time. A few habeas corpus cases in which the court did find the delay to be excessive are indicative of the abuses which are occurring in practice. 21 (vi) Preventive Detention Law: If the detention of arrested persons beyond 24 hours is defended on grounds of Preventive Detention Law, it still violates the provision of the law. As per provision of this law any person arrested without a warrant cannot be held for more than three months. Any detention longer than three months has to be reviewed by an advisory board. No such provision has been incorporated in Armed Forces Special Powers Act. (vii) The Indian Criminal Procedure Code (CrPC): The Criminal Procedure Code describes the procedures that the police is to follow for arrests, searches and seizures. Armed forces are not trained on these procedures and hence do not follow them. The CrPC has a section on the maintenance of public order, Chapter X, which provides more safeguards than the AFSPA. Section 129 in that chapter allows for the dispersal of an assembly by use of civil force. The section empowers an Executive Magistrate, officer-in-charge of a police station or any police officer not below the rank of sub-inspector to disperse such an assembly. It is interesting to compare this section with the powers the army has to disperse assemblies under section 4(a) of the Act. The CrPC clearly delineates the ranks which can disperse such an assembly, whereas the Act grants the power to use maximum force to even to non commissioned officers. Moreover, the CrPC does not state that force to the extent of causing death can be used to disperse an assembly. Sections 130 and 131 of the same chapter sets out the conditions under which the armed forces may be called in to disperse an assembly. These two sections have several safeguards which are lacking in the Act. Under section 130, the armed forces officers are to follow the directives of the Magistrate and use as little force as necessary in doing so. Under 131, when no Executive Magistrate can be contacted, the armed forces may disperse the assembly but if it becomes possible to contact an 21 - Military Law Journal, June, 2002, p.403. 162

Executive Magistrate at any point, the armed forces must do so. Section 131 only gives the armed forces the power to arrest and confine. Moreover, it is only commissioned or gazetted officers who may give the command to disperse such an assembly, whereas in the AFSPA even non-commissioned officers are given this power. The AFSPA grants wider powers than the CrPC for dispersal of an assembly. Moreover, dispersal of assemblies under Chapter X of the CrPC is slightly more justifiable than dispersal under Section 4(a) of the AFSPA. Sections 129-131 refer to the unlawful assemblies as ones which "manifestly endanger" public security. Under the AFSPA the assembly is only classified as "unlawful" leaving open the possibility that peaceful assemblies can be dispersed by use of force. Chapter V of the CrPC sets out the arrest procedure the police are to follow. Section 46 establishes the way in which arrests are to be made. It is only if the person attempts to evade arrest that the police officer may use "all means necessary to effect the arrest." However, sub-section (3) limits this use of force by stipulating that this does not give the officer the right to cause the death of the person, unless they are accused of an offence punishable by death or life imprisonment. This power is already too broad. It allows the police to use more force than stipulated in the UN Code of Conduct for Law Enforcement Officials. Yet the AFSPA is even more excessive. Section 4(a) lets the armed forces kill a person who is not suspected of an offence punishable by death or life imprisonment. (viii) Lack of Remedy to the Victim: Section 6 of Armed Forces Special Powers Act violates the provision of section 32(1) of the constitution that state the right to move to the Supreme Court in case any violation of his basic rights guaranteed by the Constitution. Section 6 of the AFSPA "immediately takes away, abrogates, pinches, frustrates the right to constitutional remedy which has been given in article 32(1) of the Constitution." This further shows that the AFSPA is more than an emergency provision because it is only in states of emergency that these rights can be constitutionally suspended. 163

(ix) State of Emergency: In a state of emergency, fundamental rights may be suspended under Article 359, since the 1978 amendment to this article, rights under Articles 20 and 21 may not be suspended. As shown above, the AFSPA results in the suspension of Article 21 right to life, therefore AFSPA is more draconian than emergency rule. Emergency rule can only be declared for a specified period of time, and the President's proclamation of emergency must be reviewed by Parliament. The AFSPA is in place for an indefinite period of time and there is no legislative review. Armed Forces Special Powers Act grants the state of emergency powers to the armed forces without declaring a state of emergency as prescribed in the constitution. 22 (x) International Laws: Human rights organisations like United Nations Human Rights Commission claim that Armed Forces Special Powers Act violates the various provisions of United Nations Universal Declaration on Human Rights and many other International Laws. They include violation of the rights of free and equal dignity, non discrimination, life, security, no torture, equality before law, no arbitrary arrests etc. (xi) International Covenant on Civil and Political Rights (ICCPR): As per provisions of International Covenant on Civil and Political Rights some of the rights of the citizens e.g. right to life, prohibition of torture etc remain non derogable even in case of emergencies. Armed Forces Special Powers Act violates both derogable and non derogable rights. International Covenant on Civil and Political Rights also guarantees that any person who is arrested has the right to know the reason for his arrest. This provision is also violated by the Armed Forces Special Powers Act as no armed forces authorities are obliged to inform the person the reasons for his/her arrest. International Customary Law. The Armed Forces Special Powers Act violates the United Nations Code of Conduct for Law Enforcing Officials in terms of use of force including use of fire arms in addition to 22 Indian Bar Review, 39(2), April-June, 2012, p.23. 164

the various other provisions which are repetitive of similar provisions in other international laws. 23 4.2.3 Review of the Armed Forces Special Powers Act a) National review The Supreme Court The AFSPA has been challenged in the courts. In 1980, a Manipuri group named the the constitutiona same issue in 1982. However, the Supreme Court did not proceed in the matter for 15 years. In 1997, a five-member bench headed by Chief Justice J.S. Verma finally ruled on the petitions challenging the act. The various petitions were combined into the case of. 24 On 27 November 1997 the Supreme Court of India rendered its judgment in Movement for Human Rights v.union of India. In this case the validity of the Act was challenged by means of a writ petition before the Supreme Court of India. The petitioner alleged that the Act had violated constitutional provisions that govern the procedure for issuing proclamations of emergency, and upset the balance between the military and civilian and the union and state authorities. The court rejected those contentions. It found that the parliament had been competent to enact the Act and ruled that its various sections were compatible with the pertinent provisions of the Indian Constitution. In particular, the court held that the application of the Act should not be equated with the proclamation of a state of emergency, which led to it finding that the constitutional provisions governing such proclamations had not been breached. The court further emphasized that the military forces had been deployed in the disturbed areas to assist the civilian authorities. As these 23 24 Gokulesh Sharma,, Human Rights and Legal Remedies, Deep & Deep Publications, Delhi, 2000 p.354. AIR 1998 431. 165

the constitutional balance between the competencies of the military and the civilian authorities had not been upset. Equally, the court found no violation of the constitutional balance of competencies of the union and state authorities. The court upheld the acting under the Armed Forces Special Powers Act 1958 which would provide effective checks against any misuse or abuse of powers conferred. What the court did not address was the compatibility of other international obligations. 25 Committees to review the Act set up by the Government Jeevan Reddy Commission(2005) The Union Ministry of Home Affairs set up a committee chaired by a retired justice of the Supreme Court B. P. Jeevan Reddy with the view to review the provisions of the Act and report to the government on whether amendment or replacement of the Act would be advisable. Having conducted extensive studies and consultations, the committee submitted its report in 2005 which included the following recommendations: (a) (b) (c) AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967; The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and Grievance cells should be set up in each district where the armed forces are deployed. impression gathered by it during the course of its work that the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness was not officially made public. 26 25 26 Suresh Kumar Soni, Human Rights: Concepts Issues. Emerging Problems, Regal Publications, New Delhi, 2007, p.21. The Hindu, February, 2013, p.5. 166