speech on reviewing of AFSPA 1990
Answers
Introduction
After the alleged extrajudicial execution of 32-year-old, Ms Thangjam Manorama Devi following her arrest as a suspected member of the Peoples Liberation Army (PLA) by the Assam Rifles personnel at 3.30 a.m. on 11 July 2004, Manipur faced unprecedented civil disobedience over the demand for removal of the Armed Forces Special Powers Act (AFSPA), 1958. Modeled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the AFSPA empowers non-commissioned officers to search without warrant, arrest without warrant and shoot even causing of death. The security forces enjoy virtual impunity for any excesses while exercising these unrestrained powers as no one can be prosecuted without the prior permission of the Central government.
As a response to the civil disobedience movement led by the Apunba Lup, the Government of India has set up the “Committee to Review the Armed Forces Special Powers Act, 1958”.
This paper examines the illegality of the provisions of the Armed Forces Special Powers Act.
Section 3: Undeclared Public Emergency
Section 3 of the Armed Forces Special Powers Act, 1958 provides that:
“If in relation to any State or Union Territory to which this Act extends, the Governor of the State, or the Administrator of the Union Territory, or the Central Government in either case, is of the opinion that the whole or any is in such a disturbed or dangerous condition that the use of Armed Forces in aid of 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 Territory to be a disturbed area”.
The process of declaration of emergency under the Armed Forces Special Powers Act, 1958 as amended in 1972, violates the provisions of the Constitution of India and International Covenant on Civil and Political Rights to which India is a party.
Domestic Law:
Under the AFSPA, the authorities only need to be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary." There is no definition of what constitutes “dangerous or disturbed condition”.
The vagueness of this definition was challenged in Indrajit Barua v. State of Assam case (AIR 1983 Del 513). The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, it is not subject to judicial review.[1]
The Disturbed Areas (Special Courts) Act, 1976, however, provides a clear definition. Under the Disturbed Areas (Special Courts) Act of 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.[2]
In the original version of the Armed Forces Special Powers Act of 1958, only the state governments had the power to declare an area as disturbed. This was consistent with Article 246 of the Constitution of India[3] to be read with the 7th Schedule of the Constitution of India which places “law and order” under the State’s list. The 1972 amendments to the AFSPA took away the power from the State government and its legislative Assembly and handed it over to an appointee of the Central Government. This is despite the fact that President can proclaim emergency under Article 356 of the Constitution of India.