11/02/2022
RESPONSE TO INTERVIEW ON THE ARMED FORCES (SPECIAL POWERS) ACT
The Editor of Beyond the Horizon Dr. Malem Ningthouja was approached by Sharmila and Anushka of the Peoples Union for Democratic Rights to share some thoughts on the Armed Forces (Special Powers) Act, 1958 as they were preparing for an article to be published in a newsletter. Perhaps, the genesis of the Armed Forces (Special Powers) Act, 1958 can be traced in the Armed Forces Special Powers Ordinance, 1942, imposed by the British government to suppress a particular phase of the Indian independence movement known as the Quit India Movement. In 1947, to deal with the situation of communal unrest and riots on account of the ‘partition’ several Disturbed Areas laws and Special Powers of the Armed Forces laws were promulgated and strictly enforced in Punjab, East Punjab, Assam, Bengal, Madras, United Provinces, Delhi. In 1948 the Special Powers of the Armed Forces Ordinances were replaced with the Armed Forces (Special Powers) Act, 1947 (Act No. 3 of 1948). It was imposed in the ‘whole provinces’ in order to give more power to the armed forces to gear up military occupation and ‘annexation’ of territories and also to suppress communist movement. The Act was repealed by Act number 36 of 1957. In 1958, Armed Forces (Special Powers) Regulation, 1958 and Armed Forces (Assam and Manipur) Special Powers Act, 1958 were enacted and enforced respectively in present day Nagaland and the then Assam and Manipur. Technically, therefore, AFSPA was enacted for the entire Northeast India. In 1972 the title of the Act and certain sections were amended to encapsulate newly demarcated administrative regions in the Northeast. In 1983 a new version of the Act entitled the Armed Forces (Punjab and Chandigarh) Special Powers Act 1983 was enacted to suppress Khalistan movement in Punjab. In 1990, the Armed Forces (Jammu & Kashmir) Special Powers Act was enacted to justify military solution to the nationality question in Kashmir. The Acts have been controversial because of the alleged impunity enjoyed by the armed forces in committing widespread violation of human rights. While the abovementioned interview does not deal with details of AFSPA and protests, the questions and responses are being reproduced as these express some pertinent questions related to AFSPA and its implications.
Editor
TEXT OF THE INTERVIEW
Hi Malem,
Thank you for agreeing to meet us tomorrow. We are aware that you're researching and don't wish to intrude into your findings but for our newsletter, we have a set of questions. We have answers to some of them but it would be great if you could resolve them for us too.
1. News reports suggest the Chief Minister of Nagaland has asked for repeal of AFSPA. It is not clear whether he and others have asked for repeal or withdrawal. Technically would repeal mean repeal of the act itself? Which would mean for all the states in North East leaving only J and K since it has a specific separate act?
Answer: On December 20, 2021, the Nagaland Legislative Assembly took a five points resolution against the Armed Forces (Special Powers) Act. Resolution number 5 stipulates, “The Nagaland Legislative Assembly unanimously resolves to demand that the Government of India repeal the Armed Forces Special Powers Act, 1958 from the North East, and specially from Nagaland, so as to strengthen the ongoing efforts to find a peaceful political settlement to the Naga Political Issue.” Technically, there is some confusion. First, if AFSPA is repealed from the statute it will apply to entire Northeast. Second, if AFSPA has to be repealed from Nagaland, there has to be an amendment to the long title and section 2 of the principal Act (amended in 1972) to exclude Nagaland. Third, if either “disturbed area” status is revoked from entire Nagaland state or there is no further declaration of “disturbed area” after the lapse of the current disturbed status, the operative provisions under AFSPA would not be applicable in Nagaland. The Nagaland Legislative Assembly does not clearly say what their immediate demand is. But it is very clear that they do not want AFSPA in Nagaland. It is also very clear that they do not touch anything about the two versions of AFSPA meant for Jammu and Kashmir (1990) and Punjab and Chandigarh (1983).
2. While there is a complicated timeline for this Act beginning with 1942 extending to the present time, is there any correct account of it which can be referred to?
Answer: Till date I have not come across any book that gives an elaborate chronological information about Disturbed Areas Ordinances/ Regulations/ Acts, and Special Powers of the Armed forces or Armed Forces (Special Powers) Ordinances/ Regulations/ Acts. I am hoping to compile one.
3. If Section 197 of the CrPC already exists why is AFSPA needed since 197 also covers Armed Forces? And why is impunity under AFSPA seen as being more problematic than 197? Is it because Section 6 of Afspa is more deadly in conjunction with extraordinary power under section 4?
Answer: It seems, Section 6 is mentioned in the AFSPA, as it is quite normal in any Central Act to include a section that confirms indemnity of anyone performing duties under the provisions of a Central Act. Section 6 of the AFSPA is reflective of the indemnity enjoyed by the Armed Forces under Section 197 of the CrPC.
4. Police do not appear to be covered under AFSPA. What happens in joint operations in areas under AFSPA?
Answer: It is quite complex. However, the Supreme Court rulings in response to Writ Petition (Criminal) No.129 of 2012 would suggest that police working in joint operations may be subjected to legal suits for committing crimes if there are prima facie evidences to substantiate. But this is not an easy procedure. Out of the 1528 instances of killings mentioned by the Writ only few have been taken cognizance by the Supreme Court. The cases are still pending. And those are all about killing. What about psychological threats, physical tortures, and other collateral damages in the name of security? It is quite complex.
5. In relation to amendment of 197 to exclude sexual violence my understanding is that only sexual violence against women and girls was excluded. Is that correct?
Answer: The Criminal Law (Amendment) Act, 2013 inserted an explanation to sub-section (1) in section 197. The explanation says that no previous sanction should be required for a Court to take cognizance of a crime by a “public servant” alleged to have been committed under sections 354 and 376 IPC. It is still unclear if “members of the Armed Forces of the Union” can be clubbed into the generic appellation “Public Servant” in legal terms. Sub-section (2) in section 197, which seemed to singled out the Armed Forces as an exception category different from the generic term public servant, has been retained without an explanation or amendment. Of course, sub-section (2) (c) in IPC Section 376 clearly prescribed the quantum of punishment against r**e committed by a member of the armed forces and others. But it is very clear that, there is no amendment to AFSPA.
6. Can we say AFSPA has become more draconian in subsequent versions. The provision extending power to the Central Govt was introduced in 1972. Is that correct?
Answer: There are different versions of AFSPA, thought all are similar in the draconian contents and their implications. These are Central Acts. The Centre always enjoy an upper hand in dealing with these laws. The amendment in 1972 merely consolidates into one the two different versions known as the Armed Forces (Special Powers) Regulation, 1958 and the Armed Forces (Assam Manipur) Special Powers Act, 1958. The Amendment merely reiterates a seeming sharing of power, if not devolution of power, by the Centre to the head of newly inaugurated statehood territories and union territories. Let’s not forget that the Governors or heads of states and union territories are not elected representatives. The AFSPA, 1972 did not alter anything to its geographical coverage and draconian contents handed down from 1958.
7. No clear intent of law: is not unusual for a law not to have a clear intent?
Answer: The law is very clear. Law is a crucial instrument of governance. Since the government does not enforce martial law to suppress insurgency and other forms of democratic movement in Northeast and elsewhere, AFSPA is a special law to selectively enforce the version of “peace and tranquility” it designs.
8. Is there no significant jurisprudence on AFSPA since 1997?
Answer: I have not seen any.
9. Has there been only one challenge to AFSPA Constitutionality in the court?
Answer: There can be many more. But those seems insignificant and are not referred to, except the Supreme Court ruling of 1997.
10. And have there been no challenges to the AFSPA Act of Jammu and Kashmir?
Answer: There are some protests and cases against incidents.
26 January 2022
