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Armed Forces (Special Powers) Act: Urgency of Review
A G Noorani
instant medical aid, free legal aid to indigent persons accused of criminal offence, a right to shelter and to speedy trial protection of ecology, and preservation of f orests, to mention only a few.
Read the entire report of the case, from pages 109 to 158 from the head-notes
The draconian Armed Forces (Special Powers) Act of 1958 is under review in the Ministry of Home Affairs. This review must call for a drastic amendment of Section 4 which confers extreme powers on officers, including to cause death, and it must provide for the constitution of an appellate body to entertain complaints against forces using the AFSPA.
A G Noorani is a well-known lawyer, scholar and political commentator.
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It speaks a lot for the Court’s insensitivity to citizens’ rights in cases where “national security” is involved – be it on the Terrorist and Disruptive Activities (Prevention) (TADA) Act or the Prevention of Terrorist Activities (POTA) Act – that its judgments are short on legal analysis and rich on patriotic rhetoric which are wholly out of place in judicial pronouncements. This ruling is perfunctory to a degree. Can you believe that while considering a statute widely criticised as providing the State’s men in arms with “a licence to kill”, the Court did not even refer to Article 21 of the Constitution which recognises the right to life of every person, citizen or foreigner? Article 21 says “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
Since Maneka Gandhi’s case (1978) 1 SCC 248 the Court has consistently ruled that the procedure prescribed by law must be fair and reasonable and the law, in turn, must conform to the other fundamental rights, especially those embodied in Article 19(1) concerning all the aspects of civil liberties; that “personal liberty” means more than mere absence of physical restraint and “life” means more than mere existence. A remarkable case law grew up based on Article 21 to ensure, inter alia,
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onwards, and you will not find even a mention, let alone a discussion of Article 21, the one constitutional provision which alone suffices to invalidate the Act.
The issues which the judgment discussed pertained to Parliament’s legislative competence to enact the law, since “public order” is a State subject; the relevance of Articles 352 (Emergency) and 356 (President’s Rule), the scope of Parliament’s residuary powers of legislation, declaration of “disturbed area”; violation of the right to equality (Article 14) since Sections 130 and 131 of the Criminal Procedure Code (CRPC) 1973 provide an alternative and a more reasonable source of power in similar situations; Article 22 on the production of the arrested person before the magistrate, the sanctions’ provisions and related issues of construction.
Shockingly, there is not a word about Article 21 in a judgment delivered on 27 November 1997 by which time it had acquired an expanded meaning and high salience in legal discourse. This, in a unanimous judgment – a rarity – delivered by justice S C Agrawal on a bench that comprised the chief justice of India (CJI) J S Verma and three others who became CJIs M M Punchhi, A S Anand, and S P Bharucha.
For aught we know, the point was not raised by any of the distinguished counsel, who appeared in the case. But as far back as on 31 March 1952 the Supreme Court had remarked, also in a unanimous judgment, delivered by CJI Patanjali Sastri, that as regards the fundamental rights, “this court has been assigned the role of a sentinel on the qui vive” by the Constitution (State of Madras vs V G Row (1952), SCR 597).
Sections 130 and 131 of the CrPC 1973 are an identical re-enactment of the code of 1898 enacted in the high-noon of British Raj. The colonial rulers were, however, careful to provide protection to any one
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acting under Sections 130 and 131 by requiring the government’s prior sanction to the prosecution of any policeman or soldier who exercised those powers. There was, of course, no such protection to those personnel in Britain itself. The rulers of independent India readily adopted these provisions.
Sections 130 and 131 of the CrPC read thus:
130. Use of armed forces to disperse assembly (1) If any such assembly cannot be otherwise dispersed, and it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.
131. Power to certain armed force officers to disperse assembly – when the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces under his command, and may arrest and confirm any persons forming part of it, in order to disperse such assembly or that they may be punished according to law; but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the instructions of the magistrate, as to whether he shall or shall not continue such action (italics of author throughout).
Note the statutory injunction to “use as little force and do as little injury to person and property” as may be consistent with the necessity of the moment (Section 130(3)). Section 130 is the governing provision. Section 131 is ancillary to it.
Contrast this with Section 4 of the
AFSPA
(4) Special powers of the armed forces – any commissioned officer, warrant officer, non-commissioned officer or any other
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person of equivalent rank in the armed forces may, in a disturbed area – (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due 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 or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive s ubstances;
Section 4(a) of the Act is a Statutory obscenity. It occurs in no statute anywhere in any democracy. It has been aptly called a “licence to kill”. Not only does it not enjoin restraint explicitly, but says that the powers may be used “even to the causing of death”. What meaning would this convey to the officer except a laxity, especially since Section 6 protects him for all legal proceedings except with the previous sanction of the central government. Even the warning he delivers will be such
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“as he may consider necessary”. The test is subjective. No objective test – “as is necessary” – is prescribed.
Can such a provision as Section 4 of the AFPSA ever stand a fair scrutiny in the light of Article 21 of the Constitution? An analogy is apposite. In Khwaja Ahmad Abbas vs Union of India (AIR 1971 SC 481 (1971), 2 SCJ 242) concerning the validity of film censorship, the Supreme Court upheld the validity of the Cinematograph Act, 1952 only on the express assurance of the government, at the very outset, that it “would set on foot (sic) legislation” to provide for an independent appellate tribunal against the censors’ orders. The aggrieved citizen must have a fair and adequate remedy.
Besides, it said “the real flaw in the scheme of directions (to the censors) is a total absence of any direction which would tend to preserve art and promote it…But Parliament has not legislated enough, nor has the central government filled in the gap (in its censorship code). Neither has separated the artistic and the socially valuable from that which is d eliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the individual.”
Section 4(a) of the Act is even more offensive. It ignores the officer’s duty to respect the life of the citizen, omits this vital injunction and contains instead a carte blanche unheard of in any other statute in any other democracy – “even to the causing of death”.
Where did the draftsmen get this from? It would be well worth the while of any scholar to go into the entire process of legislation – the tabling of the bill, debates in Parliament and the rest. The South Asia Human Rights Documentation Centre in New Delhi prepared a fine paper on the Act and drew on the debate. Its sister body Asia Pacific Human Rights Network has produced able notes on AFSPA.
Judges tend to quote selectively at times. The judgment refers, with utter irrelevance, to the power to summon the armed forces in aid of civil power conferred by the Reserve Forces Act, 1980, in England, to the Queen’s Regulations for the Army and to volume 41 of Halsbury’s Laws of England (Para 15).
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Had the judges consulted this hoary work more diligently, they would have come across vastly more relevant statutes. The old English doctrine was that the soldier is but a citizen in uniform and it is the duty of every citizen to prevent crime. S ection 3(1) of the Criminal Law Act, 1967 says: “Every person may use such force as is reasonable in the circumstances in the p revention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.
Section 117 of the Police and Criminal Evidence Act, 1984 reads:
Where any provision of this Act (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than thana police officer, the officer may use reasonable force, if necessary, in the exercise of the power.
Thus, two statutes, 17 years apart, contain the same injunction – use only “reasonable” force. This is because these Acts enact traditional law which the British also enacted in Section 130 of the CrPC; albeit without the right to sue the soldier or policeman who exceeds his powers.
Comments in a recognised work on Section 3 of the Act of 1967 are pertinent:
Thus, the use of firearms must be justified in the necessity of the situation and does not become legal by reason of the decision to call in the troops. Indeed, the use of excessive force or the premature use of firearms would render the officer in command and the individual soldiers personally responsible for death or injuries caused, issues of liability are decided by the criminal or civil courts after the event (A W Bradley and K D Ewing, Constitutional and Administrative Law, Longman, 12th Edition; p 668. They cite in support R vs Clegg (1995) IAC 482).
It goes back to the law settled in the Report of the Committee on the Featherstone Riots in 1893. The Committee, comprising two distinguished judges and a member of Parliament, said:
The taking of life can only be justified by the necessity for protecting persons or property against various forces of violent crime or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them…
The question whether, on any occasion, the moment has come for firing upon a mob or rioters, depends, as we have said, on the necessities of the case. Such firing, to be lawful, must, in the case of a riot like the present, be necessary to stop or prevent such serious and violent crime as we have alluded to; and it must be conducted without recklessness or negligence. When the need is clear, the s oldier’s duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property.
John Widgery sat on a Tribunal to inquire into the violence in Londoncharry in 1972. His report that
Soldiers acting individually are generally required to give warning before opening fire and are subject to other general rules which provide inter alia: (2) Never use more force than the minimum necessary to enable you to carry out your duties. (3) Always first try to handle the situation by other means than opening fire. If you have to fire: (i) Fire only aimed shots (b) Do not fire more rounds than are absolutely necessary to achieve your aim.
Widgery observed: “The injuction to fire only aimed shots is understood by the soldiers as ruling out shooting from the hip – which they in any case regard as inefficient, indeed pointless – except that in a very sudden emergency, requiring split second action, a short from the hip is regarded as permissible if it is as well aimed a shot as the circumstances allow”.
Approving of the dicta in the Report of 1893, an Irish judge ruled in 1938 that “a gun should never be used or used with any specified degree of force if there is any doubt as to the necessity” (R F V Heuston, Essays in Constitutional Law, Universal Law Publishing Co Private Limited Delhi, Second Edition, p 147).
In a recent case, Kenneth Diplock took full note of the difference between the riots of old and the insurgency situations of today. But it did not drive him to dilute, let alone discard, the vital precondition of reasonableness (A G for Northern Island’s Reference (No 1 of 1975); (1977) A G 105 at 106). By 1977 insurgency in Northern I reland was at its peak. The insurgents were better educated and wielded weapons more deadly than the insurgents in the north-east or in Kashmir. Diplock ruled, nonetheless, that a soldier would be liable criminally if the amount of force he had used was not “reasonable in the circumstances”. That was an issue of fact to be decided by the jury.
The Supreme Court laboured hard on this distinction but ignored the fact that the law on reasonable force applies to both situations, rioting and insurgency.
The Central Act makes provision for dealing with a different type of situation where the whole or a part of a State is in a disturbed or dangerous condition and it has not been possible for the civil power of the State to deal with it and it has become necessary to seek the aid of the armed forces of the Union for dealing with the disturbance. Similarly, under Section 131 CrPC a commissioner or gazetted officer of the armed forces has been empowered to deal with an isolated incident where the public security is manifestly endangered by any unlawful assembly. The provisions in Sections 130 and 131 CrPC cannot thus be treated as comparable and adequate to deal with the situation requiring the
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continuous use of armed forces in aid of the civil power for certain period in a particular area as envisaged by the Central Act and it is not possible to hold that since adequate provisions to deal with the situation requiring the use of armed forces in aid of civil power are contrary to Sections 130 and 131 CrPC the conferment of the powers on officers of the armed forces under Section 4 of the Central Aid to deal with a situation of law and order in a State is discriminatory in nature and is violative of Article 14 of the Constitution.
In Kashmir whole houses have been blown up by the army and paramilitary to get at a few militants hiding in them, instead of using other means to flush them out. The Supreme Court upheld this power as well without insisting on the requirement of reasonableness:
Section 4(b) confers the power to destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made or any structure used in training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence. It is urged that the said power is very wide in its scope and that apart from destruction of any arms dump, fortified positions, shelters and structures used by armed groups for attacks, it extends to destruction of a structure utilised as a hideout by absconders wanted for any offence and that, to that extent, it is invalid. We do not find any merit in this contention. Absconders wanted for an offence are persons who are evading the legal process. In view of their past activities the possibility of their repeating such activities cannot be excluded and conferment of the power to destroy the structure utilised as a hideout by such absconders in order to control such activities cannot be held to be arbitrary or unreasonable (para 48).
It, likewise, upheld the sanctions provision (paras 52 and 74) on the ground that refusal of sanction to prosecute is open to judicial review. In contrast in Britain an action for damages as well as a criminal prosecution lies against a police officer for assault or false imprisonment. Between 1970 and 1979 as many as 50 officers were convicted of assault.
In 1987 three known IRA personnel were shot by four soldiers while it was thought that they were about to detonate a bomb, to the danger of life, on Gibraltar, a British Colony. The case reached the European Court of Human Rights. Article 2 of the European Convention for the
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Protection of Human Rights and Fundamental Freedoms provides:
Thus, whether it is a case of “quelling a riot or insurrection”, Article 2 lays down that the use of force must be “no more than absolutely necessary”.
The European Court construed Article 2 in the Gibraltar case (McCann vs UK (1995) 21 EHRR 97). By a majority of 10 to 9, the Court held that there had been a breach of Article 2 which, in protecting the right to life, was said to rank as “one of the most fundamental provisions in the Convention”. There was no evidence of “an execution plot at the highest level of command in the Ministry of Defence or in the government” although “all four soldiers shot to kill”. On the facts and in the circumstances the actions of the soldiers did not in themselves give rise to a violation of Article 2. But it was held that the
o peration as a whole was controlled and organised in a manner which failed to respect Article 2, and that the information and instructions given to the soldiers rendered inevitable the use of legal force in a manner which failed to take adequately into consideration the right to life of the three s uspects.
Having regard
To the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might in some respects, at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court was not persuaded that the killing of the three terrorists constituted the force which was no more than absolutely necessary in defence of persons from unlawful violence.
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(Vide also Bradley and Ewing, p 673). The Supreme Court has drawn on the rulings of the European Court. This ruling is very relevant to an interpretation of Article 21 of our Constitution.
It is clear that Section 4 of the AFSPA is manifestly, demonstratively violative of Article 21 of the Constitution.
Two major changes are required in the Act. First is a drastic amendment of Section 4 in the light of these rulings. Second, while it is too much to expect deletion of the sanctions provisions, an independent appellate body should be set up in the Act to entertain complaints against the armed forces or the police when they operate under AFSPA. The draft bill prepared by the Jeevan Reddy Committee to Review the Act as alternative to AFSPA is inadequate.
In Masooda Parveen vs Union of India and Ors (2007) 4 SCC 548, the Supreme Court followed the 1998 case but observed:
We cannot ignore the fact that many in Kashmir who have gone astray are Indian citizens and it is this situation which has led to this incident. We do appreciate that a fight against militancy is more a battle for the minds of such persons, than a victory by force of arms, which is pyrrhic and invariably leads to no permanent solution. We cannot ignore that in this process some unfortunate incidents do occur which raise the ire of the civil population, often exacerbating the situation, and the belief of being unduly targeted with a feeling in contrast of the law order machinery that it is often in the dock and called upon to explain the steps that they have taken in the course of what they rightly believe to be the nation’s fight. We, however, believe that the examination of a complaint, and the provisions of an effective redressal, mechanism preferably at the hands of the administration itself, or through a court of law if necessary, is p erhaps one of the most important f eatures in securing a psychological advantage. We also understand that in an investigation of this kind based only on affidavits, with a hapless and destitute widow in utter despair on the one side and the might of the State on the other, the search for the truth is decidedly unequal and the court must therefore tilt just a little in favour of the victim.
It is another matter that in this very case it did not. But its emphasis on a redressal mechanism is significant. Its preferred acceptance of one “at the hands of the administration itself” vividly reveals its basic outlook.
