ARE India’s Army and paramilitary forces the only ones in the entire world to combat armed militancy? What is the actual need for the Armed Forces (Special Powers) Act, 1958 (AFSPA)? No other Indian law has incurred such odium at home and abroad, especially and repeatedly in the United Nations Human Rights Committee, as this. The Supreme Court’s judgment upholding it is pathetically perfunctory. It dealt with every aspect, except the fundamental right to life and personal liberty guaranteed by Article 21 of the Constitution. It is not mentioned even once ( Naga People’s Movement of Human Rights vs Union of India (1998) 2 Supreme Court Cases 109). Is that how our apex court acts as the guardian of our rights?
Section 4 of the Act empowers any officer of rank to, if he is of opinion that it is necessary to do so for the maintenance of public order after giving such 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 on the carrying of weapons ammunition.
Five features stand out in this statutory obscenity. First, even the warning hinges on the officer’s opinion, it may not be a warning due or necessary in the circumstances. Secondly, even an unarmed assembly of five or more can be fired upon if it violates any order prohibiting any such meeting. Thirdly, it hinges on the subjective opinion of the officer (if he is of opinion) in maintaining public order. Fourthly, totally absent is any directive for reasonableness or proportionality. There is no objective test if it is necessary to do so, or use such force as is reasonable in the circumstances to restore public order. On the contrary, there is, lastly, a licence to kill with impunity even to the causing of death without any qualifying conditions. Are you surprised that peaceful demonstrators are shot at?
In Kashmir, unlike in Punjab, whole homes have been blown up by the security forces in crowded areas merely to nab a militant or two. Section 4(2) gives a carte blanche, based again on a subjective opinion, to destroy any shelter from which inter alia armed attacks are likely to be made or any structure used as a hideout by absconders wanted for any offence.
One wishes that a scholar or law collective would prepare a study of the background to the Act, especially the parliamentary proceedings. Which genius provided the licence to kill even to the causing of death? The hoary A.V. Dicey writes in his classic Law of the Constitution: A soldier has, as such, no exemption from liability to the law for his conduct in restoring order. Officers, magistrates, soldiers, policemen, ordinary citizens, all occupy in the eye of the law the same position; they are, each and all of them, bound to withstand and put down breaches of the peace, such as riots and other disturbances; they are, each and all of them, authorised to employ so much force, even to the taking of life, as may be necessary for that purpose, and they are none of them entitled to use more; they are, each and all of them liable to be called to account before a jury for the use of excessive, that is, of unnecessary force (emphasis added, throughout). Note the contrast. The magnitude of power (even to the taking of life) is conditional on necessity and the soldier is accountable to law.
In India, accountability does not exist. The sanctions provision in the Code of Criminal Procedure (Section 197) requires the Centre’s permission for a prosecution. The British soldier had a far more onerous task to perform in Northern Ireland, where preventive detention was discarded as useless after a trial of three years, and the Irish Republican Army (IRA) is better armed and more skilled and sophisticated in the use of firearms. The insurgency lasted for 30 years (1968-2007). The law is that a soldier for the purpose of establishing civil order is only a citizen armed in a particular manner.
Section 3(1) of the Criminal Law (Northern Ireland) Act, 1967, says: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large not for violation of any order for maintaining public order. Lord Diplock ruled that it would not apply to the arrest of a person of a banned organisation not also believed on reasonable grounds to be likely to commit actual crimes of violence. ( A.G. for Northern Ireland’s Reference No. 1 of 1975 (1977) A.C. 105, (1976) 2 AER 937 at 947.) He added: What amount of force is reasonable in the circumstances for the purpose of preventing crime is, in my opinion, always a question for the jury in a jury trial, never a point of law’ for the judge. The court would balance the risks of escape with the harm likely to be caused bearing in mind the tension in the situation. But accountability is not avoided and the test of reasonableness remains. Why is the AFSPA barren of this civilised condition?
R. vs Clegg ((1995) A.C. 482) also decided by the House of Lords in a case from Northern Ireland, applies directly to the behaviour of our security forces in Kashmir and the north-eastern region. A soldier was on patrol to catch joyriders when a stolen car accelerated away towards him, with its headlight full on, ignoring an order to stop. All four members of the patrol fired at the approaching car. One of them, Clegg, fired three shots at the windscreen and a fourth after the car had sped away, killing a passenger on the rear seat.
His plea of self-defence was accepted in respect of the first three shots. But the fourth was an aimed shot fired with the intention of causing death or bodily harm. He was convicted of murder. The Appeal Court felt it was an offence of manslaughter. The House of Lords disagreed. The fourth shot was, in the circumstances grossly disproportionate to the danger to be averted (page 498). In India, the Army would have seen to it that he was not prosecuted. A Major who killed Jalil Andrabi, a senior advocate in Kashmir, was allowed to escape by the Army. Governments are as cynical.
Sections 3(1) of the Criminal Law Act, 1967, and 117 of the Police and Criminal Evidence Act, 1984, also impose the condition of reasonableness for effecting arrest. Authorities on the law hold likewise (A.W. Bradley and K.D. Ewing; Constitutional and Administrative Law, 12th edition, page 668; O. Hood Phillips and Jackson; Constitutional and Administrative Law, 8th edition, pages 388 and 397; Brownlie’s Law of Public Order and National Security, 2nd edition, pages 330-331; R.F.V. Heuston; Essays in Constitutional Law, 2nd edition, page 147). It was well said by a judge that a gun should never be used or used with any specified degree of force if there is any doubt as to the necessity.
The AFSPA relieves the forces from all such constraints. Members of the U.N. Human Rights Committee have grilled successive Attorneys-General of India on this law. On March 26, 1991, a member, Wako, pointed out that powers conferred by the Act went well beyond those provided in the [U.N.’s] Code of Conduct for Law Enforcement Officials, which stipulated that firearms could be used only as an extreme measure and in the event of armed resistance. In particular, Section 4 of the Act seemed to be open to abuse the one that gives a licence to kill.
On July 24-25, 1997, Eckart Klein of Germany and Thomas Buergenthal of the United States criticised the AFSPA. On May 23, 2008, at the Working Group of the Human Rights Council, on the Universal Periodic Review, member after member criticised the Act from Britain, Canada and Germany. They criticised also the vagueness of India’s reports which are full of generalities unrelated to the realities. We shall hear more on the subject at the next session.
It is nearly a year since the Union Cabinet has been deadlocked on amendments to the AFSPA because of the Army’s opposition. In the interests of constitutional government and the rule of law, the exercise of the physical might of the modern state must be subject to democratic control, an authority of constitutional law writes. Defence Minister A.K. Antony is well qualified to exercise that control. He is a confirmed democrat of sturdy independence. He must not fail us.