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A
Presentation
on
Armed Forces (Special Powers) Act, 1958
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PRESENTATION
BYMAJ. GEN. NILENDRA KUMAR
DIRECTORAMITY LAW SCHOOL, NOIDA
ON
FEBRUARY, 2012
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Is there any alternative
to
Armed Forces (Special Powers) Act, 1958
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India attained
its
independence essentially
by
peaceful means
and
non violence
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It propagated Panch Sheel and the doctrine
of peaceful co-existence.
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The Indian Constitution is basically federal in
Form
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However, the same did not eliminate
unrest, hatred violence and threat to the
sovereignty of the country.
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RELEVANT CONSTITUTIONAL
PROVISIONS
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However, not to be forgotten
Article 52 - There shall be a President of
India.
53(2) The Supreme Command of the
Defence Forces of the Union shall be vested
in the President and the exercise thereof
shall be regulated by law.
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EMERGENCY PROVISIONS
Article 355. Duty of the Union. It shall be
the duty of the Union to protect every State
against external aggression and internaldisturbance and to ensure that the
Government of every State is carried on in
accordance with the provisions of thisConstitution.
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Article 352 relates to the power of thePresident to make a proclamation of
emergency if he is satisfied that the
security of India is threatened by war or
external aggression.
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SUBJECT MATTER OF LAWS MADE BY
PARLIAMENT AND BY THE STATE
LEGISLATURES
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Authority over use of the armed forces
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DIVISION OF RESPONSIBILITY
Seventh ScheduleList 1 Union List
1. Defence of India and every part thereof
including preparation for defence and allsuch acts as may be conducive in timesof war to its prosecution and after itstermination to effective demobilisation.
2. Naval, military and air forces, any otherarmed forces of the Union.
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2A. Deployment of any armed force of the
Union or any other force subject to thecontrol of the Union or any contingent or
unit thereof in any State in aid of the civilpower; powers, jurisdiction, privileges andliabilities of the members of such forces
while on such deployment.
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List II State List
1. Public order (but not including [the use ofany naval, military or air force or any
other armed force of the Union or of anycontingent or unit thereof] in aid of thecivil power).
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2. Police (including railway and village
police) subject to the provision ofEntry 2-A of List I.
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Thus it would be significant to notethe duty of the Union in the matters of
national security and the clear cut
demarcation in the powers of the
Parliament and State Legislatures in this
regard.
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Having regard to the pluralistic nature of
Indian polity; multiplicity of religions &
languages, ethnic divisions and lack of
accommodation in political thoughts,
economic disparities and geographical
imbalances may at times give rise to
unresolved aspirations. Further, the
State may fail to bring about peaceful
and orderly settlement amongst the
society.
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A failure of the State administration to
maintain law and order may develop into
a situation, being disturbed and
dangerous, where the police and other
agencies available are not able to control
the extraordinary situation.
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The ultimate force available with the
Union is its armed force. Hence,
deployment of the armed forces of the
Union is the final choice.
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LEGAL DIFFICULTIES
1. The armed forces personnel have no
statutory authority to be deployed or toact within the country against own
citizens.
2. A State Government has no authority todirectly summon and deploy the military
which is under the executive domain ofthe Union.
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3. Military personnel need to be suitablyprotected for actions taken by them indischarge of official duties.
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Hence, the need for the AFSPA
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Main purpose of AFSPA
1. Declaration about disturbed anddangerous situation when, by whom and
how.2. Powers to NCOs and above.
3. Duty of the Armed Forces.
4. Protection given to them.
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SECTION 3
Powers to declare areas to be disturbedareas If, in relation to any state or Union
Territory to which this act extends, the
Governor of that State or the administrator ofthat Union Territory or the Central
Government, in either case, if of the opinion
that the whole or any part of such State of
Union territory, as the case may be, is in such
a disturbed or dangerous condition that
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the use of armed forces in aid of the civil
power is necessary, the Governor of that
State or the Administrator of that Union
Territory or the Central Government, as
the case may be , may by notification in
the Official Gazette,declare the whole or
such part of such State or Union territoryto be a disturbed area.
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SECTION 4
Special Powers of the armed forces
Any commissioned officer, warrant
officer, non-commissioned officer orany other person of equivalent rank in
The armed forces may, in a disturbed
area.
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(a) if he is of opinion that it is necessary so todo for the maintenance of public order, after
giving such due warning as he may considernecessary, fire upon or otherwise use force,even to the causing of death, against anyperson who is acting in contravention of any
law or order for the time being in force in thedisturbed area prohibiting the assembly offive or move persons or the carrying of
weapons or of things capable of being usedas weapons or of fire-arms, ammunition orexplosive substances;
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(b) if he is of opinion that it is necessary soto do, destroy any arms dump, prepared or
fortified position or shelter from whicharmed attacks are made or are likely to be
made or are attempted to be made, or anystructure used as a training camp forarmed volunteers or utilized as a hide-out
by armed gangs or absconders wanted forany offence;
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(c) arrest, without warrant, any person whohas committed a cognizable offence oragainst whom a reasonable suspicion
exists that he has committed or is about tocommit a cognizable offence and may usesuch force as may be necessary to effectthe arrest;
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(d) enter and search without warrant any
premises to make any such arrest asaforesaid or to recover any personbelieved to be wrongfully restrained orconfined or any property reasonablysuspected to be stolen property or any
arms, ammunition or explosive substancesbelieved to be unlawfully kept in such
premises, and may for that purpose usesuch force as may be necessary.
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SECTION 5
Arrested persons to be made over to
the police Any person arrested and
taken into custody under this Act 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.
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SECTION 6
Protection to persons acting under Act
No prosecution, suit or other legal
proceeding shall be instituted, except withthe previous sanction of the Central
Government, against any person in respect
of anything done or purported to be done inexercise of the powers conferred by this Act.
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Test of validity
of
AFSPA
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Naga Peoples Movement of Human Rights
V
Union of India; AIR 1998 SC 431
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DECISION
1. Act is not a colourable legislation or fraudon the Constitution.
2. Powers under Sections 4 and 5 are notarbitrary and unreasonable.
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CRITICISM
1. Retained for decades
2. Draconian powers to military. Use of
force to the extent causing of death.3. HR violations.
4. Sanctions for prosecution not given.
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RESTRICTIONS BY SUPREME COURT
1. Periodic review. Not to operate beyond
six months.
2. Orders of Central Government to grant orwithhold sanction to prosecute aresubject to judicial review.
3. Dos and Donts to be strictly followed.
4. Compensatory Justice compensationto the victim.
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Operations by the Troops facilitated
1. Retention of weapons and explosivescaptured.
2. Interrogation allowed.
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Prime Ministers assurance in December
2006 about changes in the Act.
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He promised a relook at the Act to see if it
needed to be retained if it could be turned
more humane.
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Justice Jeevan Reddy Committee Report
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Its report and recommendations are yet
to be made public.
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Act has remained in the Statute Book for last
five decades. Both during Congress and
non Congress Governments.
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There is no option but to retain the AFSPA
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A way forward is to humanise AFSPA by
framing of Rules and executive steps.
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EXECUTIVE MEASURES
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HOW TO HUMANISE
Use the tool of court of inquiry for prompt andtransparent investigations
1. Obligatory to convene inquiry in all cases of civildeaths, grievous injury or allegations sexualharassment etc. Do so within 72 hours.
2. Co-opt a civil official.
3. Woman officer to be a member/in attendance.
4. Venue to be easily accessible to local public.
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Video tape all military missions to achieve
greater transparency and accountability.
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Incentives/awards for capturing militants
alive. Hopefully, this may cut down
number of those killed.
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ALLEGATIONS OF FALSE ENCOUNTERS
AND FORCED DISAPPEARANCE
Allow local NGOs to lodge complaints
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A civil magistrate to accompany each
contingent of Army. If not feasible,
record reasons. This would bring intransparency and independent check
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Decision to accord or deny sanction in three
months.
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PROTECTION OF HUMAN RIGHTS ACT
NHRC may be allowed to refer and seek
reports.
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All complaints against Army personnel
pending in police stations should be
thoroughly probed in a time boundmanner.
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Due publicity of cases where disciplinary
actions have been taken against military
personnel for human rights personnel.
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Frame clear guidelines to lay down policy
about according/denial of sanction for
prosecution under Section 6.
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AFSPA has no provisions relating to rule
making powers.
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Recommended
Framing of Rules
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RULES TO LAY DOWN
1. Definition of armed forces.2. Difference between disturbed and
dangerous situations.
3. Threshold level for above.
4. Warning before opening fire Language,duration, means and caution.
5. Recording of the opinion of the officer ofthe designated category.
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NEED OF THE HOUR
Urgent discussion on steps to change
working of AFSPA would be a pragmaticmove in resolving an issue of major
national concern.
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THANKS