The Armed Forces (Special Powers) Act

The Armed Forces (Special Powers) Act and Jurisprudence behind the Act

THE Background OF ARMED FORCES SPECIAL POWERS ACT In November 2011, the central government extended the Armed Forces Special Powers Act in J&K for another year. The Act was first imposed in the state in 1990 and since then its term has been extended every year by the unanimous agreement of all concerned agencies. This time around, however, the decision to extend the Act met with some opposition. The Intelligence Bureau opposed its extension citing the ‘improved’ security situation in the state where as both the state government and the Ministry of Defence (MoD) strongly supported its extension. Taking the cue from the state government and the army, the central government declared the whole of Assam a ‘disturbed area’ and extended the Act for another year.[1] Similarly in March 2012, the Tripura government extended the AFSPA in the state for another six months.[2] The Act, which was imposed in 1997, is presently fully enforced in 34 police stations and partially in six police stations of the state. In the case of Tripura too the state government opted for the extension of the Act despite clear improvement in the security situation.2 Presently, the Act is in force in Assam, Nagaland, Manipur (except the Imphal municipal area); Tripura (40 police stations); the Tirap and Changlang districts of Arunachal Pradesh and a 20 km belt in the states with a common border with Assam.3 Apart from the Northeast, the AFSPA is also in force in Jammu and Kashmir, which came under its purview on July 6, 1990 as per the Armed Forces (Jammu and Kashmir) Special Powers Act of 1990. Earlier, Punjab was also brought under the Act through the Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983. The AFSPA is imposed in areas affected by internal rebellion, insurgency or militancy. Since it is a common practice in the country to deploy the armed forces to quell such unrest, this Act provides the armed forces with an enabling environment to carry out their duties without fear of being prosecuted for their actions. Genesis of the Armed Forces (Special Powers) Act, 1958 The origins of the Armed Forces (Special Powers) Act, 1958 can be traced to the Armed Forces (Special Powers) Act of 1948. The latter in turn was enacted to replace four ordinances—the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance; the East Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance; the United provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance—invoked by the central government to deal with the internal security situation in the country in 1947.[3] The Armed Forces Special Powers Act of 1948, as a matter of fact, was modelled on the Armed Forces Special Powers Ordinance of 1942, promulgated by the British on August 15, 1942 to suppress the ‘Quit India’ movement. As the title itself indicates, ‘special powers’ were bestowed on ‘certain officers’ of the armed forces to deal with an ‘emergency’.[4] These ‘special powers’ included the use of force (even to cause death) on any person who does not stop when challenged by a sentry or causes damage to property or resists arrest. Most importantly, the Ordinance provided complete immunity to the officers; their acts could not be challenged by anyone in court except with the prior approval of the central government. Incidentally, the Armed Forces (Special Powers) Act of 1948 was repealed in 1957, only to be resurrected a year later in 1958. The context was the fast deteriorating internal security situation in the ‘unified Assam’. The Nagas, who inhabited the Naga Hills of Assam and Manipur, had opposed the merger of their area with that of India on the grounds that they were racially and socio-politically different from the Indians. They had even voted in favour of a referendum declaring independence in 1951 and raised the banner of revolt. They boycotted the first general election of 1952, thereby demonstrating their non-acceptance of the Indian Constitution and started committing violent acts against the Indian state. In order to deal with this rebellion, the Assam government imposed the Assam Maintenance of Public Order (Autonomous District) Act in the Naga Hills in 1953 and and intensified police action against the rebels. When the situation worsened, Assam deployed the Assam Rifles in the Naga Hills and enacted the Assam Disturbed Areas Act of 1955, in order to provide a legal framework for the paramilitary forces as well as the armed state police to combat insurgency in the region.8 The Assam Disturbed Areas Act of 1955 was a mirror image of the Armed Forces Special Powers Ordinance of 1942 as it gave ‘special powers’ to the armed forces engaged in counter insurgency. According to Sections 4 and 5 of the Act: “A magistrate or police officer not below the rank of sub-Inspector or havildar in case of the armed branch of the police or any officer of the Assam Rifles not below the rank of havildar/jamadar” had the power to arrest, shoot or kill any person on suspicion. Section 6 of the Act provided protection against any kind of prosecution without the consent of the central government.9 But the Assam Rifles and the state armed police could not contain the Naga rebellion and the rebel Naga Nationalist Council (NNC) formed a parallel government—the Federal Government of Nagaland—on March 22, 1956. This intensified the widespread violence in the Naga Hills. The state administration found itself incapable of handling the situation and asked for central assistance. Responding to the appeal of the state government, the central government sent the army to quell the rebellion and restore normalcy in the region. The President of India promulgated the Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22, 1958 to confer ‘special powers’ on the armed forces as well as provide them the legal framework to function in the ‘disturbed areas’ of Assam and the Union Territory of Manipur.10 A bill seeking to replace the ordinance was introduced in the monsoon session of the Parliament on August 18, 1958. While introducing the Armed Forces Special Powers Bill, the home minister, G. B. Pant, argued that the bill would enable the armed forces to function effectively in a situation marked by arson, looting and dacoity.[5] The bill, however, faced some opposition. Several members of Parliament argued that giving such sweeping powers to the armed forces would lead to the violation of the fundamental rights of the people; that it would allow the government to circumvent the Constitution to impose an emergency—without actually declaring it and the armed forces would usurp all the powers of the civilian government; and that it would result in the armed forces committing excesses with impunity. Laishram Achaw Singh, an MP from Manipur, described the bill as a “lawless law”.12 Nevertheless, after a discussion lasting a total of seven hours, the bill was passed by both the houses of the Parliament with retrospective effect from May 22, 1958. The bill received the President’s assent on September 11, 1958 and was printed in the Statute Book as The Armed Forces (Special Powers) Act, 1958 (28 of 1958).[6] Armed Forces Act Concept of Rights and Duties: Jurisprudential Analysis The word ‘right’ is often used broadly to cover legal relations in general has probably been at least unclearly realized by all thoughtful students of law. Thus, to take a concrete example, nearly all of us have probably noted at some time or other that the “right” (privilege) of self-defense is a different kind of “right” from the “right” not to be assaulted by another; but that legal thinking can never be truly accurate unless we constantly discriminate carefully between these different kinds of rights, few of us have sufficiently realized.[7] Speaking of the rights of the citizens; What matters is whether Utopia is entitled under the regional laws to respond to the violence through the use of armed force on the territory of the union. It is submitted that it is so entitled. In fact, a right to self-defence against the attacks of the state agency (Military or Police) exists in the present. In this and numerous additional cases it revolve out upon test that the word “right” is being used to represent first one notion and then an additional, often with resulting uncertainty of thoughts. With the clear recognition of the fact that the same term is being used to represent four distinct legal conceptions comes the conviction that if we are to be sure of our logic we must adopt and consistently use a terminology adequate to express the distinctions involved. The great merit of the four terms selected by Hohfeld for this purpose – right, privilege, power and immunity[8] – is that they are already familiar to lawyers and judges and are indeed at times used with accuracy to express precisely the concepts for which he wished always to use them. The term ‘right’, with regards go hand in hand with the present argument. Right in the constricted sense ; as the correlative of duty – Right in correlation signifies an affirmative claim against another, as differenced from ‘privilege’, one’s freedom from the right or claim of another. Privilege is a term of good repute in the law of defamation and in that relating to the duty of witnesses to testify. In defamation we say that under certain circumstances defamatory matter is “privileged”, that is, that the person publishing the same has a privilege to do so. Basic sense of this argument is that the ‘duty’ correlated with ‘right’ is more of an affirmative claim, whereas ‘privilege’ correlated with ‘duty’ is generally considered as negative inference. Rights of the citizens are not honored, when we discuss the inhuman practices done by the military or police in such states, therefore the duty is of also expected of higher paramount on state’s part. And if talk about the State like J&K, where citizens have given ‘privileged rights’, the duty also changes tits nature. Therefore the subjectivity of the matter cannot be left for any extent. By this account we are not asserting that the person having the privilege has an affirmative claim against another, for example, that other is under a duty to refrain from practicing his rights, as we are when we use “right” in the strict sense, but just the contrary. The statement is merely that under the situations there is an absence of duty on the part of the military to refrain from doing what they are supposed to do under the situations of emergency. So in reference to the duty of a witness to testify: upon some occasions we say the witness is privileged, i.e., that under the circumstances there is an absence of duty to testify, as in the case of the privilege against self-incrimination. “Privilege” therefore denotes absence of duty, and its correlative must denote absence of right. ‘Power’ and ‘Liability’: ‘Power’ and ‘Liability’ is correlative is well-established. “Suppose...that A is fee-simple owner of Blackacre. His ‘legal interest’ or property relating to the tangible object that we call land consists of a complex aggregate of rights (or claims), privileges, powers, and immunities. First, A has multital legal rights [rights in rem], or claims thatothers, respectively, shallnot enter on the land, that they shall not cause physical harm to the land, etc., such others being under respective correlative legal duties. “Second, A has an indefinite number of legalprivilegesof entering on the land,using the land, harming the land, etc., that is, within the limits fixed by law on grounds of social and economic policy, he hasprivileges of doing on or to the land what he pleases; andcorrelativeto all such legal privileges are respectivelegal no-rightsof other persons.”[9] An analysis of these statements is that the power assigned to the armed forces is correlated with the liability in terms of taking care of the weakest associate of the public. The liability on the part of the state is of greater extent as far as the welfare of the general public is concerned. This argument is based upon the fact that armed forces have given special powers and therefore their liability must also be of special concern. The non-conformation of this action could result in complete disruption from the faith. The cases like Irom Sharmila are the evident of this non-compliance of correlatives. A person holding such a “power” has the legal ability by doing certain acts to alter legal relations. Whenever a power subsists there is at least one other human being whose legal relations will be altered if the power is exercised. This situation is described by Hohfeld by saying that the one whose legal relations will be altered if the power is exercised is under a “liability”. Care must be taken to guard against misapprehension. “Liability” as commonly used is a vague term and usually suggests something disadvantageous or burdensome. Not so in Hohfeld’s system, for a “liability” may be a desirable thing.[10] For example, when armed police officer acts to stop the undesired action upon his rational, the rights of the citizen is abolished. Because armed forces are given special powers such actions can be justified but there is absolute adherence to law.

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[1] “Armed Forces Act term extended in State,” The Assam Tribune, Guwahati, 19 December 2011, at https://www.assamtribune.com/scripts/detailsnew.asp?id=dec2011/at06, accessed on 16 April 2014. [2] “Special Powers Act in Tripura extended,” igovernment, Agartala, 19 March 2012, at https://www.igovernment.in/site/special-powers-act-tripuraextended, accessed on 16 April 2014 [3] Report of the Committee to Review the Armed Forces (Special Powers) Act of 1958, Ministry of Home Affairs, Government of India, 2005, p 10. [4] [5] Home Minister G B Pant as quoted in The AFSPA: Lawless Law Enforcement According to the Law? (New Delhi: Asian Centre For Human Rights, 2005), p 3. [6] 13. The Armed Forces (Special Powers) Act, 1958, n 10. [7] Walter Wheeler Cook (ed.), Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays by Wesley Newcomb Hohfeld, ‘Introduction’ by W.W. Cook, pp. 1 -15 (1919), See https://archive.org/details/fundamentallegal00hohfuoft, accessed on 17 April 2014. [8] Ibid, pg.23-25. [9] Albert Kocourek, The Hohfeld System of Fundamental Legal Concepts(1920), https://en.wikisource.org/wiki/The_Hohfeld_System_of_Fundamental_Legal_Concepts [10] Walter Wheeler Cook (ed.), Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays by Wesley Newcomb Hohfeld, ‘Introduction’ by W.W. Cook, pp. 1 -15 (1919), See https://archive.org/details/fundamentallegal00hohfuoft, accessed on 17 April 2014.

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