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VIOLATION OF AFSPA GUIDELINES AND RECOURSE

Author: Divyansh Morolia, I year of B.A.,LL.B. from NLIU, Bhopal

Co-author: Kavya Gupta, I year of B.A.,LL.B. from NLIU, Jodhpur


INTRODUCTION

An unfortunate incident was reported from Nagaland’s Mon district on 4 December 2021 wherein 14 civilians were killed in firing by the security forces which was allegedly a case of mistaken identity. A vehicle carrying 8 miners was misunderstood to be carrying insurgents by the team of 21 para commandos of the Indian Army which opened fire on them and it resulted in killing 6 of the 8 miners. Upon receiving the news of the incident, local villagers surrounded the vehicles of the security force and started assaulting them, and to disperse the crowd, the army personnel opened fire on the villagers. The contestation between the security forces and the locals led to the death of 1 army personnel and 8 more civilians[1]. It is reported[2] that they were exercising their powers under the Armed Forces Special Power Act[3] (hereinafter referred to as AFSPA) and unfortunately, this is not the first case wherein innocent civilians had to suffer owing to the actions of military personnel acting under the ambit of AFSPA[4].


In 2004, Thangjam Manorama Dev was tortured and shot by the members of the 17 Assam Rifles team acting under AFSPA[5]. There have been incidents of sexual violence at the hands of armed forces[6], and other actions of abuse, such as the imprisonment of young children[7], have also been reported. The Santosh Hegde committee[8], appointed in 2013, stated that there have been 1528 fake encounter killings in Manipur by the person acting under AFSPA[9]. Supreme Court in Extra-Judicial Execution Victim Families Association v. Union of India[10] has acknowledged that out of these 1528 alleged encounters, writ petitions seeking relief for 655 deaths have already been filed. These incidents have taken place despite the fact that the honourable Supreme Court has clearly laid down guidelines[11] for army personnel discharging their duties under AFSPA. Through the means of this article, we attempt to analyse the development and applicability of AFSPA and also highlight the guidelines laid by the Supreme court concerning the same and the violation of the guidelines, as has continuously taken place.


WHAT IS AFSPA

The Act was originally promulgated in 1942 by the British in response to the Quit India Movement. PM Jawaharlal Nehru decided to retain this Act even after independence, which was first introduced as an ordinance and then finally notified as an Act[12] in 1958.


It was introduced as a response to the Naga insurgency in the regions of Assam and Manipur and the formation of a parallel government by the rebel Naga Nationalist Council (NNC) in 1956. In the later years, it was also introduced in other Northeast states, Jammu & Kashmir and Punjab. Currently, it remains in force in Mizoram, Nagaland, Manipur, Assam, J&K and some parts of Arunachal Pradesh.


AFSPA gives armed forces the power to maintain public order in “disturbed areas”. They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is a threat and is in contravention of the law. Section 3 of the Act empowers the Governor of the State, Administrator of the Union Territory and the Central Government (through the 44th Amendment In 1978) to notify a State or a particular part of a State as a “disturbed area”.


Section 4 of the Act gives the powers like opening fire and using force, even to the extent of causing death; arrest a person who has committed a cognizable offence and against whom a reasonable suspicion exists, without an arrest warrant and enter and search at any location without a warrant.


CRITICISM OF AFSPA

The BP Jeevan Reddy committee in 2005 had called for the repeal of the Act. It stated that “It is a controversial law that gives sweeping powers to and often confers immunity on security forces.”[13] Similar views were also expressed by the Santosh Hegde Committee in 2013[14]. Even after the recent incident, there have been similar demands from political leaders[15] as well as political groups[16]. AFSPA has been constantly criticised for giving powers to the armed forces to act with impunity and for violating the basic human rights of the citizens. The validity of the act has also been challenged in the Supreme Court[17].


SUPREME COURT ON VALIDITY OF AFSPA

The validity of AFSPA was challenged before the Supreme Court in Naga People’s Movement of Human Rights vs. Union of India[18]. It was contested that the central government didn’t have the authority to issue orders on the matters concerning ‘public order’ and the constitutionality of the act was also challenged. It was claimed that the act gave arbitrary powers to the armed forces and it was a “fraud on the constitution”. The court upheld the validity of the impugned Act by stating that the central government was competent to issue orders under the said act under Entry 2A of List 1 of the 7th schedule. Furthermore, the court held that the said Act was constitutional and was enacted under Article 355[19] which states that it is the responsibility of the Union to safeguard the state against external aggression and internal disturbances. However, the Supreme Court laid down certain guidelines that need to be followed by the army personnel discharging their duties under AFSPA. These guidelines state that “before launching any raid, definite information about the activity has to be obtained from the local authorities”, “actions must be carried out with co-opt representation from local civil administration”, “in case of necessity, the opening of fire should be done only after due warning”, “it must be ensured that the troop under command do not harass innocent persons”, “little force must be used only as is necessary for the object sought to be achieved.”


In the incidents of abuse by the army personnel, as stated earlier, these guidelines have been blatantly violated. Taking this into consideration, a PIL was filed before the supreme court in 2017 and the honourable court delivered the judgement Extra-Judicial Execution Victim Families Association v. Union of India[20] wherein the court acknowledged the non-compliance with the previously-laid guidelines and ordered a probe by an independent body.


Despite these orders by the honourable court, incidents of violation of these guidelines continue to be reported. For instance, in the present case of the killing of 14 civilians, there was no involvement of the local authorities and as it has been reported, also, the act of firing on the vehicle without confirming the identities of the victim violates the guideline of “using little force only in the situations of necessity”, and “obtaining definite information about the activity before launching any raid.”


CONCLUSION

These draconian actions by the army personnel, resulting in violations of these guidelines often become a reason to invite the vengeance of the people of the nation. These acts of abuse like sexual harassment, fake encounters etc. lead to a gross violation of the human rights and dignity of the people. It leads to the creation of a state of terror and violates the very basic principles of a welfare state.


The Indian constitution provides for the protection of the life and dignity[21] of its citizens. Furthermore, India is a signatory to international conventions like the ICCPR[22] and UDHR[23]which lay the guidelines for the protection of the human rights of the citizens. Hence, there is a compelling need to stop the misuse of the act[24]. If an act like AFSPA is to be enforced, it has to be ensured that the guidelines laid by the honourable court are strictly adhered to and the violation of the same should be immediately addressed by the government authorities. The court should also take cognizance of the matters of violation and should declare them as contempt. Moreover, it needs to be ensured that the forces are trained with the fundamental principles of humanitarian law and criminal jurisprudence to produce a ‘Humanitarian forced Power’. Sensitization of Military Force Personnel is urgently required to sustain humanity in the face of this law's possible heinous misuse.


[1]Tora Aggarwal, ‘Nagaland:14 civilians killed by forces; soldier dies of injuries as violence erupts’(2021) https://indianexpress.com/article/north-east-india/nagaland/nagaland-14-civilians-killed-by-forces-soldier-dies-of-injuries-as-violence-erupts-7657872/ accessed on 8 December 2021

[2]SubirBhaumik, ‘Nagaland: Indian State tensed after killing of 14 civilians’ (2021)https://www.bbc.com/news/world-asia-india-59544599 accessed on 8 December 2021

[3] Armed Forces Special Power Act 1958

[4]ibid

[5]KrishnadasRajgopala. ‘Manorama mercillesly tortured’ (2004)https://www.thehindu.com/news/national/manorama-death-brutal-torture-probe-panel/article6596278.ece accessed on 8 December 2021

[6]‘12-year-old allegedly raped by Assam Rifles constable’ (2004) https://www.outlookindia.com/newswire/story/12-year-old-allegedly-raped-by-assam-rifles-constable/278778 accessed on 8 December 2021

[7] ‘Ray of hope for ULFA kids in jail’ (2006) https://www.tribuneindia.com/2006/20060611/nation.htm accessed on 8 December 2021

[8] ‘Hegde committee report on AFSPA’ (2013) https://www.thehindu.com/news/national/hegde-committee-report-on-afspa/article4945143.ece accessed on 8 December 2021

[9] supra

[10]Extra Judicial Execution Victim Families Assn. v. Union of India, (2017) 8 SCC 417

[11]Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109

[12] Armed Forces Special Power Act 1958

[13] Ashok Dhamija, ‘Justice Jeeven Reddy Committee suggestion to repeal Armed Forces (Special Powers) Act to be rejected?’ (2015) <https://tilakmarg.com/opinion/justice-jeeven-reddy-committee-suggestion-to-repeal-armed-forces-special-powers-act-to-be-rejected/> accessed on 8 December 2021

[14] ‘Hegde Committee report on AFSPA’ (2013) <https://www.thehindu.com/news/national/hegde-committee-report-on-afspa/article4945143.ece> accessed on 8 December 2021

[15] ‘Nagaland firing: Rio's cabinet to write to Centre demanding immediate repeal of AFSPA’ (2021) accessed on < https://www.hindustantimes.com/india-news/nagaland-firing-cabinet-to-write-to-centre-demanding-immediate-repeal-of-afspa-101638872890664.htm> accessed on 8 December 2021

[16]Vijaita Singh, ‘Naga Peace talks at impasse’, (2021) accessed on <https://www.thehindu.com/news/national/the-hindu-explains-naga-peace-talks-at-an-impasse/article37885123.ece> accessed on 8 December 2021

[17] Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109

[18] Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109

[19] Indian Constitution 1949, article 355

[20]Extra Judicial Execution Victim Families Assn. v. Union of India, (2017) 8 SCC 417

[21] Indian Constitution 1949, article 21

[22]InternationCovenent on Civil and Political Rights 1966

[23] Universal Declaration of Human Rights 1948

[24] Armed Forces Special Powers Act 1958