In India there are several repressive laws, many of which have been inherited from the British colonial legislations. Among these, the Armed Forces Special Powers Act [AFSPA] is considered one of the most controversial legislations. What differed it from other repressive laws is that it empowers the authority to declare an area “disturbed area” and deploy armed forces. The armed forces acting under AFSPA in a disturbed area are empowered with extraordinary power to indulge in severe violence with impunity. Currently, there are some versions of AFSPA, which are enforced in those areas where armed insurgency for secession from India are active. It allegedly has promoted state sponsored violence on the people without a transparent and accountable legal redressal by civil courts. The trend of violence over decades include cold-blooded fake encounters, massacres, tortures, harassments, illegal detentions, forced disappearances, killings as a result of mistaken identity, rapes, molestations, sodomies, post-traumatic stress disorders, restrictions to free movement, terror hysteria and destruction of properties. While people protested against incidents of violence, demanded repeal of the Act, and fought legal case against the Act; the Supreme Court of India, in 1997, upheld AFSPA’s constitutional validity. The Court prescribed a set of ‘dos and don’ts’ for the armed forces to respect human rights. However, violence continued as the Court’s ruling does not do away with the draconian and impunity provisions of the Act. As a result, human rights organisations in India and abroad continuously demand repeal of the Act. In response to a widespread popular agitation against the Act, in 2005, the Report of the Committee to Review, the Armed Forces (Special Powers) Act, 1958, Ministry of Home Affairs, noted that AFSPA had promoted violence and recommended the Government of India to repeal the Act. The recommendations of the Second Administrative Reform Commission and the UN UPR 2012 sought for repealing of the Act. On 20 November 2012, the National Security Advisory Board (NSAB) stated to include recommendation for ‘repeal’ or ‘amend’ of the AFSPA in the North East in its proposed report to the Government of India. In this article, the author gives a brief outline of the genesis and chronology of the different versions of AFSPA along with disturbed areas laws.
Genesis of AFSPA
The genesis of AFSPA is traced in the Armed Forces (Special Powers) Ordinance, 1942. The Ordinance was promulgated in British India to deal with emergency situation during the Second World War. The emergency situation was the unrests caused by the Quit India Movement demanding an end to British rule. The movement had to be suppressed at any cost using brute force. But the rulers did not impose martial law. They opted for something lesser than martial law but more brutal than normal repressive laws. The legitimacy of the Ordinance was derived from the powers conferred by section 72 of the Ninth Schedule of the Government of India Act, 1935. The section writes,
“The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the peace of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian legislature.”
The Ordinance conferred certain special powers upon certain officers of the armed forces not below the rank of “captain in His Majesty’s Military Force and any officer holding equivalent rank either in His Majesty’s Naval or Air Forces or in the forces of a foreign power allied with His Majesty or in a foreign authority recognised by His Majesty.” The officer may authorize in writing any personnel under his command, based on his opinion, to use force, even to the causing of death, against any person who defied order on the spot and suspects.1 An arrested person must be made over to the officer in charge of the nearest police station “as soon as practicable.”2 There cannot be any legal action against the personnel acting under this law except with the previous sanction of the then “Central Government.” The Ordinance was amended on December 24, 1942, to empower police as well.3 On September 18, 1945, the Ordinance was further amended so that the responsibility of taking into custody an arrested person was not confined to police alone but also extended to “appropriate military officer” as well.4 This amendment was repealed by the Act II of 1948. But the principal Ordinance was not repealed. On December 26, 1949, the Ordinance was extended to newly merged states such as Tripura, Vindhya Pradesh, and Manipur.5 The extension was technically revoked after 66 years, on May 6, 2016, when the Merged States (Laws) Act, 1949 was enacted.6 The Ordinance was finally repealed on January 5, 2018.7
Disturbed areas and special powers laws
As mentioned, AFSPA empowered the authority to declare a disturbed area. But there are separate disturbed areas laws as well. In short, there are extraordinary repressive laws that may be broadly grouped into; (a) disturbed areas laws and (b) armed forces (special powers) laws. While the disturbed areas laws empowered the police to enjoy extraordinary powers, the special powers laws empowered the armed forces supposedly deployed in aid of civil authority in a disturbed area. These two categories may appear completely different. However, these two reinforced one another in certain peculiar contexts. Overall, those personnel acting under any of these two broad categories enjoyed impunity as no suit, prosecution or other legal proceeding could be instituted except with the previous sanction of the concerned authority. Both were found to be enforced, particularly from 1947 onwards, to control the presumed ‘disturbed situations’ such as communal riots, communist militancy, armed insurgency by nationality forces, and etc. For instance, the Punjab Disturbed Areas Act, 19478 and the Punjab Public Safety Act, 1947, and Punjab Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 were enforced. The Ordinance was more repressive than the British colonial Armed Forces (Special Powers) Ordinance, 1942. First, the power to exercise special powers was now given to the ranks below a captain or its equivalent. Second, it empowered the armed forces to kill suspects. Third, it added the power to arrest or search or destroy without warrant.
But these laws were considered necessary. According to Punjab Governor Sr. E. Jenkins, “when disturbances are widespread and as serious as these have been it is essential that Magistrates, Police and troops should have power to deal summarily with persons who disregard lawful orders, even though this may involve the use of more than what appears at first sight to be 'the minimum force'.”9 There were lots of discussion among Indian leaders and British authorities on the matter. According to Stanley, “[Jawaharlal] Nehru urged that Punjab’s troops should be empowered to be utterly ruthless and to shoot on sight. Remarkably, [Muhammad Ali] Jinnah10 agreed: “I don’t care whether you shoot Moslems or not, it [disturbance] has got to be stopped.”11 But the suggestion for imposition of martial law was rejected by British authorities for various political and technical reasons. First, according to Daniel, “[Lt Gen. Messervy] felt that if it [martial law] were imposed, it would be used by the Muslim League as political propaganda, and to fuel accusations of the army being used as an anti-Pakistan instrument.”12 Second, according to Stanley, Jenkin and other military and police officers feared that “there were not enough British troops left to succeed immediately in restoring civil control, and once martial law was declared British troops would be exposed to same communal attack as Police.”13 Finally, Jenkins emphasised empowering the police and armed forces with special powers. According to him, “certain offences, such as attempted murder, kidnapping and its variants, robbery and dacoity and their variants, rape, and arson, should be made punishable with death. The principle of “minimum force” should also be abrogated [in the disturbed areas].”14 The Punjab model of enforcing Disturbed Areas Law and Disturbed Areas (Special Powers of Armed Forces) Law were subsequently enacted for the North-West Frontier Province on July 2, 1947,15 Bengal on August 11, 1947,16 Assam on August 13, 1947,17 East Punjab and Delhi on September 18, 1947,18 and United Provinces on October 3, 1947.19
All India AFSPA, 1947
Meanwhile, the authority wanted to do away with separate provincial Ordinances but to enact by parliament a special powers law that should be applicable to the entire provinces of India. The Armed Forces (Special Powers) Bill was introduced to the Constituent Assembly of India (Legislative), on December 6, 1947, by the Minister of Defence Sardar Baldev Singh.20 The Bill was debated and passed on December 11 and 12, 1947.21 Sardar Baldev argued that in Punjab the police had failed to perform its duties to suppress communal riots and, in some cases, they even refused to work. Therefore, the Provincial Government had requested the Government of India for military help. Since the military had to be deployed there was a demand for additional power to be given to the armed forces. The Punjab Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 was promulgated. Similar Ordinances were enforced in North-West Frontier Province, Bengal, Assam, East Punjab and Delhi, and United Provinces. Since the Ordinances would lapse and the armed forces would find themselves in a difficult position in those places where they have been deployed to maintain peace, the parliament had to enact a special law.
Those who opposed the Bill were worried that the law was drastic in nature. According to Pandit Thakurdas Bhargava (East Punjab), India was a democratic country ruled by civil authorities. If extraordinary emergency situation had occurred, civil administration could declare disturbed area and empower itself with the help of police under section 15 of the Police Act (Act V of 1861). If that was insufficient, civil authorities could call in the aid of the military under sections 129 to 132 of the Criminal Procedure Code, 1898. If that cannot handle the situation civil administration should have stayed its hands and handed the administration over to the military authorities under Martial law. However, as long as the civil authorities functioned, it was the civil authorities who had the last say in the matter, though in a certain contingency the military might be given certain limited powers. But the proposed Bill was unexpected as it was very drastic and would undermine civil authorities. Thakurdas believed that the Bill did not provide any safeguards to those who would be arrested. Section 3, which provided indemnity to the armed forces acting under the law, was far too wide of the mark. H. V. Kamath (C.P. Berar) endorsed the opinion of Thakurdas and questioned if such a drastic law was needed.
K. M. Munshi (Bombay: General) defended the Bill. According to him, the Criminal Procedure Code was entirely inadequate in the changing circumstances to deal even with ordinary riots. He tried to explain that normal repressive laws, Martial law, and the proposed Bill were different. When Martial law was proclaimed in an area the military took complete control of the area. According to him, “What this Bill proposed to do, in the first instance, is to interpose an intermediate stage between a normal rioting in a city or a place which can be handled by the police and an extremely advanced stage when it has to be handed over to the military to be dealt with under martial law.” When a Provincial Government could not cope with the situation it could declare, under section 2 of the Bill, a particular area as disturbed, the powers given to the military by the Bill came into operation. “But it [armed forces] does not exercise all the powers which would be exercised by it if Martial law were proclaimed. Under this Bill the charge of the area remains with the Provincial Government for all purposes except that the Military is used for restoring public order.”
Sardar Baldev responded to the opposition and said, “we are passing through extraordinary times. Hardly three months ago we got our independence after 150 years of slavery. And if we cannot manage the affairs of this country successfully, we will stand condemned in the eyes of the world.” He appealed, “If we have to maintain law and order and avoid communal disturbances we should not hesitate to take as drastic measures as possible.” He admitted that the Bill might look drastic. However, he believed that it would be worked without any hardship to anybody as powers could not be used unilaterally by the armed forces. It was the discretion of the Provincial Government to declare an area as disturbed. The provisions of the Bill were for one year only, further extendable after reviewing the situation. It was opened to the Provincial Governments to revoke a disturbed area notification at any time they decided.
Therefore, the Armed Forces (Special Powers) Act, 1947 was enacted.22 It was extended to all the Provinces of India. It empowered any commissioned officer or non-commissioned officer of His Majesty’s military or air forces, based on his opinion to maintain public order to exert forces even to the causing of death and also to arrest and enter and search any premise without warrant. It provided impunity to the persons acting under it.23 The Act repealed the pre-existing Disturbed Areas (Special Powers of Armed Forces) Ordinances that were enforced in Bengal, Assam, East Punjab and Delhi, and the United Provinces. It did not mention anything about Punjab Disturbed Areas Act and Punjab Disturbed Areas (Special Powers of Armed Forces) Ordinances. It did not repeal the Armed Forces (Special Powers) Ordinance, 1942. The Armed Forces Special Powers Act, 1947 was repealed in 1957 on the ground that it had become obsolete for entire India. Since then, in different times, different versions of AFSPA have been enacted selectively for those parts of India where armed insurgency for secession from India have been active.
AFSPA in the Northeast
On January 25, 1956, the Governor of Assam promulgated the Naga Hills Districts (Application of the Code of Criminal Procedure, 1989) Regulation, 195624 to suppress armed insurgency by Naga National Council. It incorporated many sections of the Code that sanctioned deployment of armed forces to assist civil administration in maintaining law and order. This seemed insufficient; on April 5, 1958, the President of India promulgated the Armed Forces (Special Powers) Regulation, 1958 that empowered the Governor of Assam to declare disturbed areas in Kohima district or the Mokokchung district in the Naga Hills-Tuensang Areas.25 It empowered the Governor of Assam to declare disturbed areas, where the armed forces would enjoy special powers in aiding civil authority. It incorporated certain provisions of the pre-existing disturbed areas and special powers laws.
First, regarding the power to use fire arms, to the extent of causing death, the Regulation had similar provisions with those of the section 2. (1) of the Armed Forces Special Powers Ordinance, 1942; section 5 of the Punjab Disturbed Areas Act, 1947 and similar adaptations elsewhere; Section 4 of the Bengal Disturbed Areas Ordinance, 1947; Section 2 (a) of the Armed Forces (Special Powers) Act, 1947; section 2 (a) of the United Province Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; section 5 of the Madras Suppression of Disturbances Act, 1948, and; section 4 of the Assam Disturbed Areas Act, 1955.
Second, regarding the power of destruction, section 4 (1) (b) of the Regulation had similar provisions with section 5 of the Assam Disturbed Areas Act, 1955.
Third, regarding the power to arrest without warrant section 4 (1) (c) has similar provisions with section 2 (b) of the Punjab Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; section 12 of the Assam Maintenance of Public Order Act, 1947; section 2 (b) of the North-West Frontier Province Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947, the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947, Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947, East Punjab and Delhi Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947, the United Province Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947, the Armed Forces Special Powers Act, 1947; and section 33 of the West Bengal Security Act, 1950.
Fourth, regarding the power to search without warrant section 4 (1) (d) of the Regulation has similar provision with section 2 (c) of the Punjab Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; the North-West Frontier Province Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; the Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; East Punjab and Delhi Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; the United Province Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947; and the Armed Forces Special Powers Act, 1947.
Fifth, section 5 of the Regulation prescribed that the arrested person be made over to the police. This provision is similar with section 3 of the Armed Forces (Special Powers) Ordinance, 1942. This provision is silent in the Military Operational Area (Special Powers) Ordinance, 1943; the above-mentioned Disturbed Areas (Special Powers of Armed Forces) Ordinances enforced in Punjab, North-West Frontier Province, Bengal, Assam, East Punjab and Delhi, United Province, the West Bengal Disturbed Areas Act 1947, the Madras Suppression of Disturbances Act, 1948; the West Bengal Security Act, 1950; and the Assam Disturbed Areas Act, 1955.
Finally, section 6 of the Regulation protects the persons acting under it. It writes, “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 or purported to be done in exercise of the powers conferred by this Regulation. Similarities are found in all the above-mentioned pre-existing repression laws.”26
Meanwhile, on May 22, 1958, the President of India promulgated the Armed Forces (Assam and Manipur) Special Powers Ordinance,27 to deal with the spread of insurgency in the then Assam and Manipur. The operational provisions of the Ordinance, that is sections 3 to 6, replicated the above-mentioned Armed Forces (Special Powers) Regulation, 1958. The difference between the Ordinance and the Regulation is the geographical coverage. While the Regulation was confined to Kohima and Mokokchung districts of Naga Hills-Tuensang Area, the Ordinance was extended to the whole of the then State of Assam and the Union Territory of Manipur. This Ordinance empowered the Governor of Assam and the Chief Commissioner of Manipur to declare disturbed areas respectively in Assam and Manipur. The contents of the Ordinance were replicated in the bill called the Armed Forces (Assam and Manipur) Special Powers Act, 1958, which was introduced in the Indian parliament on August 11, 1958.28 It was debated for about two hours and passed by the Lok Sabha on August 18. The Rajya Sabha debated the Bill on August 25, 27, 28 and September 11, and passed it. Both the Sabhas debated the Bill but passed it without any amendment. Some of the major issues raised and debated may be organised into; (a) On Strategic Approach, (b) On Constitutional Obligations, (c) On the Power of Local Civil Authority, (d) On the Power of the Supreme Court, and (e) Nehru’s Deciding Statement.
(a) On Strategic Approach
The Bill was opposed because it was too drastic.29 According to Mahanty, “… we do not want a free India with barbed wires and concentration camps, where the Havildars can shoot at sight any man.” Naushir Bharucha questioned if the Government had lost all hopes of bringing the situation under control by peaceful and reconciliatory means. V. Prasad Rao (Andhra Pradesh) believed that drastic measures were not necessary for dealing with a few people. Shri Warlor (Trichur), Bhupesh Gupta (West Bengal), Dr. R.B. Gour, and P. N. Sapru shared the view that Naga question was a political question. According to Bhupesh Gupta, “The Naga problem in spite of all the violent activities associated with it is fundamentally a political problem that needs to be politically approached, politically handled and politically solved … provided we act with statesmanship, we act with imagination, we act with generosity of heart and statesmanship in approach which is required of us.” The above views were rejected. According to the Minister of State in the Ministry of Home Affairs B. N. Datar, “The policy of the Government towards Nagas or towards all such people is one of a human approach, a friendly approach and to the extent that it is necessary also a persuasive approach… [but] Government naturally took strong action against those stubborn elements… There these powers or this Regulation was highly helpful in controlling even the antisocial or turbulent activities of these people. Therefore, the result was that on the whole the conditions were satisfactory though it has become necessary to keep that Regulation also in force so far as the other area is concerned.”
(b) On Constitutional Obligations
The Bill was protested on the charge of violating constitutional obligations. First, Section 4 of the Bill, which is considered responsible for suspending Fundamental Rights (Chapter III of the Constitution), replicated corresponding provisions in the Defence of India Rules under the Defence of India Act, which was enacted after a proclamation of emergency issued under the Government of India Act, 1935. Second, Section 6 of the Bill, which is considered to have abrogated Article 32 (1) of the Constitution, could be enforced only when an emergency has been declared by the President under Article 352 (1) of the Constitution. Therefore, the power to declare disturbed areas under Section 3, which is to be enjoyed by the local authorities, to bring into force Sections 4 and 6 (emergency provisions), without proclamation of emergency by the President, virtually amounts to violation of Constitutional obligations. Mahanty (Dhenkanal) and Dr. Krishnaswami (Chingleput) believed that the Bill was a martial law and argued that the Bill could not be brought into force unless an emergency had been declared under Article 352(1) of the Constitution. The treasury bench refuted the arguments raised by the opposition on several grounds. First, Section 4 cannot suspend Chapter III of the Constitution because civil authorities continue to function and armed forces had limited functions in quelling disturbances. Second, Section 6 cannot abrogate Article 32 (1) of the Constitution because under Article 226 the Supreme Court enjoys plenary power in all cases. This Section is similar to the provisions in the Criminal Procedure Code and the Civil Procedure Code which gave protection or indemnity to officers on duty. Third, Section 3 cannot be identified with emergency legislation. The need of proclamation of emergency under Article 352 does not arise because the powers which the State governments enjoyed under the Constitution were not taken away and conferred on Parliament. According to B. N. Datar the Bill was neither a martial law nor an extraordinary law. He said that there was neither external aggression or internal disturbance of such an order as to call it an emergency. Therefore, according to him, Article 352 could not come into operation.
(c) On the Power of Local Civil Authority
The opposition protested Section 4 as it undermined civil authority. The treachery bench rejected the charges. They pointed out that the armed forces could be called in aid of the civil power to function under ordinary provisions such as Sections 144 and 129 to 131 of the Criminal Procedure Code. Under normal law a magistrate would be there in charge of the situation and he alone could order to shoot or arrest. However, those powers and authorities were found insufficient and impracticable where disturbances were taking place continuously in various areas. According to A. K. Sen, “civil authorities cannot function every second, every moment, when there is danger.” According to B. N. Datar, “Sometimes the situation is highly menacing; sometimes it has dangerous implications. Under such circumstances when it is difficult to get magistrates present or to get police officers present, these military officers can be called in aid of the civil power.” Therefore, the Bill went a step further “and give the armed forces, certain specified officers of the armed forces, powers for aiding the civil authority.” According to Pandit G.B. Pant, “No power is transferred from the executive authority. The magistrates are there. The police is there. All other activities which are usually in the hands of the civil administration will, even hereafter be in their hands. All that is said here is that the local Government may make use of the army, if it so chooses in the manner provided in this Bill, and can use the army only for this limited purpose, and thereafter the ordinary processes of law are to be followed.” The local authorities or Governments have the power to either declare disturbed areas or revoke it.
(d) On the Power of the Supreme Court
Section 6 of the Bill undermines the power of the Supreme Court30 as it says “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 or purported to be done in exercise of the powers conferred by this Act.” Therefore, the Supreme Court’s right to intervene under Article 32 have been affected as legal cognizance cannot be taken without the previous sanction of the Central Government. Bhupesh Gupta criticized the Section and proposed to add the following words in Section 6 which reads, “(2) Any person against whom any such prosecution, suit or legal proceeding has been instituted involving allegations of excessive use of force or gross abuse of powers or gross misconduct shall be withdrawn from the operations in the disturbed area during the pendency of such proceedings.” But the oppositions were rejected on the ground that the Bill did not violate fundamental rights and the Supreme Court’s power to intervene. The argument was that nobody could deprive the Supreme Court of its supreme authority regardless of anything that might be done. According to the Speaker of the Rajya Sabha, “This article has never been declared to stand in the way of similar provisions like clause 6 of this Bill being incorporated in other Acts. Pandit G.B. Pant argued, “So far as the right of the Supreme Court is concerned, it is not controlled by clause 6 because the Supreme Court has, under article 226, plenary power in all cases. It is not bound by anything that this clause or any other clause may prescribe, but such a provision exists in the Criminal Procedure Code too that no court will take notice of any such case unless the Government has given its sanction. Section 132 is there; it is exactly in the same terms.”
(e) Nehru’s Deciding Statement
Towards the end of the debate in the Rajya Sabha, dated August 28, the Prime Minister Jawaharlal Nehru delivered a statement. The statement concisely articulated the empirical exigencies of defending India and the functional objectives of the Bill. It was a deciding statement as there were no reactions to it. The statement reads:
Sir, I came here and I was fortunate enough to hear, even apart from this, his discussing the rule of law, which pleased me very much, coming as it did from the Hon. Member opposite. It is a happy development here in this Parliament that even a Member sitting opposite, whose conception of the law is normally considered to have nothing to do with our conception of the law or the State’s conception of the law or the Constitution’s conception of the law, has now become a convert to the rule of law. That is a great gain, and I hope that it represents a real conversion and not merely a temporary aberration.
A great deal of heat has been engendered in this particular matter. I have no doubt my colleague will deal with a number of points that have been raised. But what is all this about? Here we have been dealing in the last two years or more with a situation in the north-east which, if it had occurred anywhere else, would, I am sure, have been dealt with in a very different way. Throughout this period our objective has been not to rely so much on the force of the State, on the coercive apparatus of the State, on the armed forces, etc., but always to realise that the people whom we are dealing with were misled and had taken to wrong activities under a misapprehension, or whatever you might call it. It has a long history of the past.
I have spoken repeatedly on this subject expressing not only my admiration of the people of the north-east, even those who were opposed to us and who were hostile to us, always working for winning them over, to make them integrated in mind and spirit to India and to what we stand for. I doubt and I am not aware of any instance anywhere in any country where a Government has treated with such friendliness, with such approach to winning over an insurrectionary group as the Government of India did in regard to these elements in some of the north-eastern parts of our country, and I can say with some confidence now that the policy we pursued has met with a very large measure of success, and it has met with success not because merely of the firmness we showed in dealing with violence and insurrection, which any Government must show because, if a Government does not, it means a spread of that violence and enormous misery to the people who suffer from it. But the other aspect of our policy was always to win over fellow-citizens, to make them feel that they were fellow citizens, to make them feel that they were co-sharers in the freedom of India and all that. Some people there talk of independence. When I met them some time ago, I said: I quite agree with you. You are independent; you ought to be independent and you are as independent as I am, as anyone else, but independence does not mean indulging in insurrection and violence and all kinds of other misdeeds against the law.
Any Government, whatever it is, has to deal with that situation. Now, normally the violence of, let us say the petty violence of, the dacoit or somebody is dealt with by the normal processes of the law. Where it increases and goes beyond the normal antisocial elements and assumes some kind of an organised form, it is sometimes called an insurrectionary movement. Whether it is big or small, it is another matter. Normally, when that happens it is dealt with very sternly by any State. Surely, no Hon. Member here can fail to appreciate that if we had taken the hard line which normally States take in such matters, if we had taken measures which normally States take, hard measures, stern measures, we would have succeeded from the point of view of just suppressing the insurrection much more quickly but because we did not want to do that, we functioned, firmly certainly, but always with a certain gentleness, always with the idea of winning them over. That is why it took a little longer but although it took longer, that is the course, we think, which brings ultimately good results. And what is more, we have, as I said, in a large measure succeeded because the situation in those Naga Hills and the surrounding country has improved very greatly and when I say improved, I am not talking only strictly in the law and order sense but in the sense that the people of the areas are now co-operating in restoring a sense of normality there in a hundred ways.
But although they are co-operating, there are groups, small groups, misled, who, not being able to function in this way in those particular areas, break out into other areas roundabout—whether it is Manipur or whether it is roundabout—and it is not an easy matter when even small groups of dacoits as in Madhya Pradesh or somewhere else behave in that way. It is not an easy matter to deal with them and one has to adopt some special measures. Therefore, this particular measure that is placed before the House for its consideration is to deal with these outbreaks on the fringes of that particular situation, or inside it. It is a repetition of something that we have been doing; it is nothing very new.
Only power is taken to deal with those people in a particular way and I do submit, far from being an extraordinary thing, it is rather less than the normal measures which a State takes on such occasions and I am quite sure that this House therefore will approve of this and realise that the policy of the Government in regard to the north-eastern areas has been firm certainly as it has to be. No infirm Government can function anywhere. Where there is violence it has to be dealt with by Government, whatever the reason for it may be; because otherwise you drift, the country drifts into, if I may use the word, Fascist methods, all groups, private groups and others, indulging in violence and trying to coerce the governmental authority by organised violence. That is normally called Fascism; at any rate, it is a method adopted by Fascism and there is far too much of that kind of thing happening although it may be said to be happening for the noblest of motives. But in fact, it has the most harmful consequences. Therefore, it is necessary, where this occurs, to deal with it firmly but never, I hope, in India from the point of view of dealing with an enemy. As fellow-citizens we have to win them over but in winning them over we cannot afford to allow large numbers of people to be terrorised over by small armed bands. And that is the whole purpose of this and I do not understand why hon. Members opposite should speak in such strong terms as if something very unusual, something extraordinary, was taking place.
There was no further debate after Nehru’s speech. The Bill was passed. It became an Act on September 11, 1958.31 This Act was amended in 1972, on April 5, 197232 to specifically mention that it was extended to the present-day States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura. The power to declare disturbed areas was no longer confined to Governors or Administrators but also technically extended to the Central Government.
AFSPA in Punjab and Chandigarh
From the late 1970s onward the Khalistan movement for secession from India became active in Punjab and Chandigarh areas. The author ities felt the need to enact repressive laws to suppress it. Therefore, on October 7, 1983, the President of India promulgated the Punjab Disturbed Areas Ordinance, 198333 and Chandigarh Disturbed Areas Ordinance, 1983.34 The repressive powers enjoyed by police as prescribed by the sections 4 and 5 of the Ordinances replicated those of the Assam Disturbed Areas Act, 1955. The exact replications of these two ordinances became the Punjab Disturbed Areas Act, 198335 and the Chandigarh Disturbed Areas Act, 1983.36 After a week, when the Punjab Disturbed Areas Ordinance, 1983 have been enforced, on October 15, 1983, the President of India promulgated the Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983.37 It became the Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 on December 8, 1983.38 It had provisions similar to those of the Armed Forces (Special Powers) Act, 1958 that have been enforced in the Northeast. But it had some improvisation with insertions. For instance,
First, the subsections (a), (b), (c) and (d) in section 4 of both the Armed Forces (Special Powers) Act, 1958 and the Armed Forces (Punjab and Chandigarh) Special Powers Ordinance, 1983 are the same, except the addition of the words “and seize any such property, arms, ammunition or explosive substances” in the sub-section (d) in section 4 by the Ordinance.
Second, the Ordinance has an added subsection (e) in section 4, which was not found in the Armed Forces (Special Powers) Act, 1958. It writes, “stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any person who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.”
Third, in place of the section 5 of the Armed Forces (Special Powers) Act, 1958, the Ordinance writes, “Every person making a search under this Ordinance shall have the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld.”
Fourth, section 5 of the Armed Forces (Special Powers) Act, 1958, prescribes that arrested persons be made over to the “the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.” This section was improvised with more elaboration in section 6 of the Ordinance. It writes, “Any person arrested and taken into custody under this Ordinance and every property, arm, ammunition or explosive substance or any vehicle or vessel seized under this Ordinance, shall be made over to the officer-in-charge of the nearest Police station with the least possible delay, together with a report of the circumstances occasioning the arrest, or, as the case may be, occasioning the seizure of such property, arm, ammunition or explosive substance or any vehicle or vessel, as the case may be.”
AFSPA in Jammu and Kashmir
The nationality question of Jammu and Kashmir had been contentious. While wars had been fought with a neighbouring country to occupy Kashmir, despite heavy militarisation, AFSPA was not enforced for many decades for various reasons not explained by the Government. But the escalation of armed insurgency from the mid 1989 onwards became a pretext for enforcing a version of AFSPA. In 1990, the Jammu and Kashmir Governor enforced the Jammu and Kashmir Disturbed Areas Act.39 Exact copy of this Act could not be traced. However, it was a Governor’s Act that might have replicated those of the Punjab and Chandigarh. The assumption is substantiated by the fact that when it was converted into a President’s Act on July 17, 1992,40 the later replicated those of Punjab41 and Chandigarh.42 This Act was repealed by the Jammu and Kashmir Disturbed Areas Act, 1997. Meanwhile, the President of India, on July 5, 1990 promulgated the Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990.43 This Ordinance replicated and improvised the Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983. The improvisation is found in the addition of sub-sections (a) and (b) and an explanation in section 3. The additions elaborated that the Ordinance was meant to prevent disturbances caused by; “(a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people; and (b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about a cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India.” The Ordinance became an Act on September 10, 1990.44 For the first time, the activities that might be considered an immediate manifestation of disturbance were briefly mentioned.
Contemporary India, a post 1947 making, has been a territory of instabilities and unrest. There have been various forces that are deemed disturbing; armed nationality forces that either attempt to secede from its territorial control, communist forces that attempt to launch insurrection to overthrow the capitalist political-economic system, democratic forces that challenged certain policies and programmes of the government, etc. To control all these the Government had been relying on brute forces backed by repressive laws. But militarisation and repressive methods have caused rampart human rights violations. Among these, as mentioned in the beginning, AFSPA has been the most controversial.
The Indian parliament, in different times, had allotted certain limited times to debate on AFSPA. Those debates occurred when AFSPA bills were introduced in the parliament; (a) 1948 (all India AFSPA), (b) 1958-1972 (AFSPA in Northeast), (c) 1983 (AFSPA in Punjab and Chandigarh), and (d) 1990 (AFSPA in Jammu and Kashmir). The debates focussed on the constitutional validity of AFSPA and its relevance in a democratic. system. In the debates, those who opposed AFSPA were always a microscopic segment grossly outnumbered by AFSPA supporters. Therefore, all the AFSPA bills were passed in their original forms without taking into consideration any amendment proposal. From 1990 onwards, there has never been a noteworthy debate on AFSPA, except time-to-time responses to certain starred and unstarred questions and slight references in special mentions.
AFSPA has no longer been challenged in the parliament after 1990. After more than 20 years, August 5, 2011, a bill entitled the Armed Forces (Special Powers) Amendment Bill, 2011 was introduced in the Rajya Sabha.45 The Bill sought to amend sections 6 and 7 respectively of the Armed Forces (Special Powers) Act, 1958 and the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. These sections in the original corresponding Acts provided “indemnity” or “immunity” to those acting under the provisions of these Acts. According to these sections, “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 or purported to be done in exercise of the powers conferred by this Act.” The Bill demanded to substitute it with the following line, “No prosecution, suit or other legal proceedings shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act where the Central Government provides reasons in writing and the competent court upholds the legal validity of these reasons.” However, the Bill was neither debated nor passed.
There was another attempt, in 2017, to amend the above-mentioned sections. On August 4, 2017, a bill entitled the Armed Forces (Special Powers) Amendment Bill 2017 was introduced in the Rajya Sabha.46 It demanded that the corresponding sections 5 and 6 mentioned above were substituted with the following line, “Provided that the Central Government shall take a decision on sanction for institution of prosecution, suit or any other legal proceeding within three months of receiving a request for the same, failing which the sanction shall be deemed to have been given and where such sanction is expressly denied, it shall be communicated, along with the reasons, to the complaints and families of the victims, if any: Provided further that no such sanction for institution of any prosecution, suit or any other legal proceeding shall be required if there is allegation of commission of sexual offence under section 354B, section 375, section 376, section 376A, section 376C or section 376D of the Indian Penal Code, 1860.” The Bill was neither debated nor passed. All the versions of the AFSPA continue to exist in the statute.
1 Or dinance No. XLI of 1942. Killing without trial; anyone can be killed on the ground of suspicion based on the opinion of the officer.
2 No exact time limit is given to hand over an arrested person to a police station and produce before a court. Practicability, being based on opinion, enabled the concerned officer to deliberately delay the “made over”.
3 Ordinance No. LXVI of 1942.
4 Ordinance No. XXXVI of 1945.
5 Merged States (Laws) Act, 1949. Act No. 59 of 1949
6 Act No. 23 of 2016.
7 Act No. 4 of 2018.
8 Punjab Governor’s Act I of 1947.
9 Letter of Sr. E. Jenkins to Lord Mountbatten. I.O.R. MB 124. Secret. No. 660/P, dated 26th March 1947. Reproduced in Kirapāla Siṅgha (Kirpal Singh). (1991). Ed. Select Documents on Partition of Punjab – 1947: India and Pakistan: Punjab, Haryana, and Himachal – India and Punjab – Pakistan. New Delhi: pp. 31-32.
10 Muhammad Ali Jinnah was the leader of the All-India Muslim League.
11 Stanley Wolpert. (2009). Ed. Shameful Flight: The Last Years of the British Empire in India. Oxford: Oxford University Press. p. 160.
12 Marston, Daniel. (2014). The Indian Army and the End of the Raj. Cambridge: Cambridge University Press. pp. 301-302.
13 Stanley Wolpert. (2009). Ed. Shameful Flight: The Last Years of the British Empire in India. Oxford: Oxford University Press. p. 160.
14 Note by Sir E. Jenkins, dated March 14, 1947. Reproduced in Nicholas Mansergh and Penderel Mood. Ed. (1981). The Transfer of Power 1942-47. Volume X. England: Her Majesty’s Stationary Office. p. 952.
15 Ordinance No. IX of 1947.
16 Ordinance No. XI of 1947.
17 Ordinance No. XIV of 1947.
18 Ordinance No. XVII of 1947
19 Ordinance No. XXII of 1947.
20 The Constituent Assembly of India (Legislative) Debates. Official Report. Volume II, 1947. New Delhi. p. 1380.
21 The Constituent Assembly of India (Legislative) Debates. Official Report. Volume III, 1947. New Delhi. pp. 1732-1817.
22 Act No. III of 1948.
23 The Act was repealed in 1957. It was restored again, logically, when the Repealing and Amending Act, 1957 was repealed in 1960. It was repealed again when the Repealing and Amending Act, 1960 was repealed in 1974. The Repealing and Amending Act, 1974 repealed the section 7 of the Armed Forces (Assam and Manipur) Special Powers Act, 1958, and the Armed Forces (Special Powers) Extension Ordinance 1942. But the principal ordinance, that is, the Armed Forces (Special Powers) Ordinance, 1942 was not repealed. As mentioned, it was finally repealed after 76 years on January 5, 2018
24 Assam Regulation 1 of 1956.
25 President’s Regulation No. 2 of 1958.
26 The Regulation was subsequently extended for another year on expiry by the Regulations No. 2 of 1959, No. 2 of 1960. No. 6 of 1961, No. 4 of 1962, No. 4 of 1963, Acts No. 9 of 1964, No. 9 of 1965, No. 9 of 1966, No. 9 of 1967, No. 10 of 1968, No. 3 of 1969, and for another three years by Act No. 9 of 1964. Throughout the amendments, the only noticeable change is in Act No. 9 of 1964 that writes, “except in section 7, for the expression 'Naga Hills-Tuensang Area,' wherever it occurs, the expression 'State of Nagaland' shall be substituted.” The Regulation ceased to be in force with effect from April 5, 1972.
27 Ordinance No. 1 of 1958.
28 Bill no. 74 of 1958.
29 Pro visions of the Ordinances or Regulations or Acts were discussed in the previous chapter.
30 Section 6 of the Act.
31 Act No. 28 of 1958.
32 Act No. 7 of 1972.
33 Ordinance No. 5 of 1983.
34 Ordinance No. 6 of 1983.
35 Act No. 32 of 1983.
36 Act No. 33 of 1983.
37 Ordinance No. 9 of 1983.
38 Act No. 34 of 1983.
39 Jammu and Kashmir Governor’s Act No. 12 of 1990.
40 President’s Act No. 4 of 1992.
41 Act No. 32 of 1983.
42 Act No. 33 of 1983.
43 Ordinance No. 3 of 1990.
44 Act No. 21 of 1990.
45 Bill No. XI of 2011.
46 Bill No. XXII of 2017.
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