Analysis of Armed Forces Special Powers Act, 1958
Courtesy : pucl.orgIntroduction
“An effective international strategy to counter terrorism should use human rights as its unifying framework. The suggestion that human rights violations are permissible in certain circumstances is wrong. The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter what the ends. International human rights and humanitarian law define the boundaries of permissible political and military conduct. A reckless approach towards human life and liberty undermines counter-terrorism measures”. - Mary Robinson, the United Nations High Commissioner for Human Rights in her report to the 58th session of the United Nations Commission on Human Rights.1
It took an unusual form of protest by some members of the Meira Paibis, women activists, who stripped in front of the Kangla Fort, then headquarter of the Assam Rifles on 15 July 2004, followed by an equally unprecedented civil disobedience movement in Manipur never seen in independent India to establish the Committee to Review (hereinafter referred to as “Review Committee”) the Armed Forces Special Powers Act (AFSPA), 1958 on 8 December 2004. The protests were against the alleged extrajudicial execution of Ms Thangjam Manorama Devi on the night of 11 July 2004 by the Assam Rifles personnel and the withdrawal of the AFSPA.
The AFSPA empowers the representative of the Central government, the governor to subsume the powers of the State government to declare “undefined” disturbed areas. It also empowers the non-commissioned officers of the armed forces to arrest without warrant, to destroy any structure that may be hiding absconders without any verification, to conduct search and seizure without warrant and to shoot even to the causing of death. No legal proceeding against abuse of such arbitrary powers can be initiated without the prior permission of the Central government. While introducing the AFSPA on 18 August 1958, the government accepted it as an emergency measure and it was supposed to have remained in operation only for one year.
The demand of the populace affected by the AFSPA either to completely withdraw or substantively review the Act is matched by the demand for its retention by the armed forces and the hawks. A section of the Apunba Lup, a congregation of 32 civil society organisations of Manipur leading the civil disobedience movement, called for a “public curfew” on 27 December 2004, the day members of the Review Committee reached Imphal, to press its demand for complete repeal of the AFSPA. Other members of the Apunba Lup and the family members of Manorama Devi, however, submitted their representations to the Review Committee. Immediately after the visit of the Review Committee to Manipur, General Officer Commanding in Chief (Eastern Region), Lt General Arvind Sharma in his first press conference at Kolkata on 3 January 2005 stated that the provisions of the AFSPA is “absolutely essential” to tackle insurgency in the country. “I am afraid that without the AFSPA, the Army will not be able to function in insurgency situations... Without the Act, we will be a reactive” -stated Lt General Sharma.2
The mushrooming of the non-State actors and violations of the international humanitarian laws by these groups are realities of the North East India. “There is no doubt that States have legitimate reasons, right and duty to take all due measures to eliminate terrorism to protect their nationals, human rights, democracy and the rule of law and to bring the perpetrators of such acts to justice”.3 However, that does not give the State the right to take away the right to life in an intentional and unlawful way or violate human rights guaranteed under the constitution and international law. The AFSPA has become the main symbol of repression because of its sheer misuse as demonstrated in the various case studies of last few years provided in this study. In addition, a few armed opposition groups were also initially created by State agencies as a part of the counter-insurgency operations and these groups, later on, became Frankenstein monsters.4
There is no doubt that the armed forces operate in difficult and trying circumstances in the areas afflicted by internal armed conflicts. It is in these situations that the supremacy of the judiciary and the primacy of the rule of law need to be upheld. However, if the law enforcement personnel stoop to the same level as the non-State actors and perpetrate the same unlawful acts, there will be no difference between the law enforcement personnel and the non-State actors whom the government calls “terrorists”.
This representation, submitted to the Review Committee, provides an analysis of the illegality of the provisions of the AFSPA, the abuse of these provisions and therefore the need for its review and specific recommendations. It also contains documents on national, regional and international human rights standards to ensure that amended the provisions of the AFSPA are “in consonance with the obligations of the Government towards protection of Human Rights”. As Manipur has been the epicentre of the movement against the AFSPA, the case studies are cited mainly from Manipur. – Suhas Chakma, Director
Executive Summary
“... there (Assam and Manipur), they (certain misguided sections of the Nagas, in the words of Mr. Pant) are indulging in -arson, murder, loot, dacoity etc. So it has become necessary to adopt effective measures for the protection of the people in those areas. In order to enable the armed forces to handle the situation effectively wherever such problem arises hereafter, it has been considered necessary to introduce this Bill.” - then Home Minister G B Pant while introducing the Armed Forces Special Powers Bill on 18 August 1958.
“In my humble opinion, this measure is unnecessary and also unwarranted. This Bill is sure to bring about complications and difficulties in those areas, especially in those which are going to be declared as disturbed areas. I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases, especially in the sub-divisions of Kohima and Mokokchung. In such a situation, I do not like that the officers should be invested with special powers. Recently, such an incident took place in the Headquarters of the North Cachar and Mikir Hills District. Instead of rounding (up) the hostile Nagas, some military personnel trespassed into the houses of some retired tribal official and committed rape on the widow. So, such things have deteriorated the situation. The tribal people have risen against the military people there. It is, therefore, dangerous to invest the military authorities with extraordinary powers of killing and of arrest without warrant and of house breaking…… How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only severe the right of the people and harass innocent folk and deteriorate the situation.”- Mr. Laishram Achaw Singh, MP from Inner Manipur Parliamentary Constituency while objecting to the AFSP Bill.5
Modelled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the Armed Forces Special Powers Act of 1958 (AFSPA) was initially supposed to have remained in operation for one year to tackle the Naga problem. However, after 45 years of imposition of the AFSPA, the Naga problem is far from resolved. The government of India and Naga armed opposition groups - both Issac-Muivah and Kaplang factions of the National Socialist Council of Nagaland - have been engaged in a peace process since July 1997. The peace process stresses the axiom that political problems cannot be resolved by merely terming it as law and order problems - “arson, murder, loot, dacoity” - crimes which are more associated with mainland India’s Uttar Pradesh, Bihar and Madhya Pradesh.
There is no doubt that a large number of armed opposition groups operate in Manipur and elsewhere in the North East and that they have been responsible for gross human rights abuses. Yet, unlawful law enforcement only begets contempt for the rule of law and contributes to a vicious cycle of violence. The unusual form of demonstrations by some members of the Meira Paibis who stripped themselves in front of the Kangla Fort on 15 July 2004 was an act of desperation to protest against the systematic denial of access to justice even for unlawful, intentional, arbitrary, summary and extrajudicial deprivation of the right to life. The third preambular paragraph of the Universal Declaration of Human Rights - “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” - is prophetic about such situations.
A reckless approach towards human life and liberty in the last 45 years under the AFPSA has been counter-productive and caused alienation of the people in the North East. The review of the AFSPA is overdue for many reasons.
First, the AFSPA has manifestly failed to contain, let alone resolve, all insurgency problems in the North East. When the AFSPA was imposed on 8 September 1980, there were only four armed opposition groups in Manipur - the United National Liberation Front, People’s Revolutionary Party of Kangleipak, People’s Liberation Army, and National Socialist Council of Nagaland. However, today there are over two dozens armed opposition groups including the Kanglei Yaol Kanba Lup, People’s United Liberation Front, North East Minority Peoples Front, Islamic National Front, Islamic Revolutionary Front, United Islamic Liberation Army, Kuki National Army, Kuki National Front, Kuki Revolutionary Army, Zomi Revolutionary Army and the United Kuki Liberation Front, among others.
Second, there are adequate laws to deal with insurgency situations and the non-State actors. While India did not have specific laws in 1958 to deal with armed opposition The AFSPA: Lawless law enforcement according to the law? groups, it has subsequently adopted numerous draconian laws such as the Terrorist and Disruptive Activities (Prevention Act), 1985 and the Prevention of Terrorism Act (POTA), 2002. After the lapse of these laws, the government of India amended the Unlawful Activities (Prevention) Act of 1967 in December 2004 to incorporate the provisions of the POTA. The Unlawful Activities (Prevention) Act of 1967 as amended in 2004 is adequate to deal with all insurgent groups and their unlawful activities.
Third, the strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences against the innocents and punishment for breaches of such provisions while exercising executive powers; and not in providing the arbitrary powers to the law enforcement personnel to be law unto themselves. The AFSPA violates basic tenets of criminal justice system in any civilized society. First, it provides special powers which tantamount to awarding heavier penalty to the suspects than convicted persons would get under normal court, a clear violation of the cardinal principle of criminal justice system - nullum crimen, nulla poena sine lege.6 Second, non-application of due process of law makes the armed forces to be their own judge and jury. Most importantly, by giving virtual impunity to the armed forces under Section 6 of the AFSPA which makes its mandatory to seek prior permission of the Central government to initiate any legal proceedings, the Executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious, abusive or frivolous.
Though, there is no need for retention of the AFSPA, the Review Committee appears to have already decided to retain the AFSPA with some amendments. It has called for representation on whether it should recommend to the government of India to “(i) amend the provisions of the Act to bring them in consonance with the obligations of the Government towards protection of Human Rights; or (ii) replace the Act by a more humane legislation.” Both the proposals have the same end - the retention of the Act.
In order to uphold the supremacy of the judiciary and primacy of the rule of law, the Review Committee must ensure that the judgements of the Supreme Court of India and opinions of international bodies including the United Nations Human Rights Committee on the AFSPA are incorporated in the amended AFSPA. Leaving it to the armed forces to respect “Do’s and Don’ts” issued by the army authorities as naively espoused by the Supreme Court of India in its controversial judgment on the constitutional validity of the AFSPA and to the courts to decide “case by case basis” have proved to be inadequate, ineffective and counter productive because of continued violations of human rights.
Extrajudicial Executions for Maintenance of Public Order
Since Manipur has been declared as a “disturbed area” on 8 September 1980, according to Manipur Chief Minister Lbobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.35
In practice, there are hundreds of armed encounters each year. Not every armed encounter is questioned. However, when people, whether innocent civilians, suspects or members of armed oppositions groups are captured from their houses or villages and routinely killed in fake encounters, allegations of extrajudicial killings surface. Yet, there has been little or no documentary evidence to prove that the victims were indeed arrested as no arrest memo is issued, not to mention about evidence to prove subsequent extrajudicial executions.
However, the extrajudicial execution of Ms Thangjam Manorama Devi has both exceptional as well as routine aspects.
It is exceptional because unlike hundreds of other arrests, the Assam Rifles personnel issued an arrest warrant. Havildar (General Duty) Suresh Kumar (No. 173355) of the 17th Assam Rifles signed the arrest memo. Rifleman T Lotha (No. 173916) and Rifleman Ajit Singh (No. 173491) signed as witnesses. The arrest memo stated that Ms Manorama Devi was arrested as a suspected member of the Peoples Liberation Army and they recovered nothing from her and that she was healthy at the time of her arrest.36
The recovery of Manorama’s dead body from Ngariyan Mapao Maring village on the morning of 12 July 2004 with telltale signs of brutal torture all over her body is a routine matter.37
Prior to the inquiry into the death of Manorama Devi, Justice Upendra conducted over half a dozen similar inquiries. Justice Upendra Commission as required under normal law of the land summoned the concerned Assam Rifles personnel to depose as mere witness since they had signed the arrest warrant for Manorama. The fact that the Assam Rifles questioned the jurisdiction of the Upendra Commission of Inquiry on the ground that the State government had not taken prior permission from the Central government is nothing unusual either.
Impunity to the Armed Forces
Under Section 6 of the Armed Forces Special Powers Act, “No prosecution, suit or other legal proceedings 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 powers conferred by this Act.”101
This provision violates India’s treaty obligation under Article 2(3) of the ICCPR according to which:
“Each State Party to the present Covenant undertakes:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
To ensure that the competent authorities shall enforce such remedies.”
What is more worrying is the fact that Section 6 of the AFSPA has been overtaken by Section 197 of the Criminal Procedure Code102 (Cr.P.C.) amended in 1991 to provide virtual impunity to the armed forces. Impunity has been made a feature of normal criminal jurisprudence. In fact Section 197 of the Cr P.C. has made section 6 of the AFSPA redundant. If the Central government were to give permission under section 197 of the Cr P.C., there is no reason as to why the same permission will not be granted under Section 6 of the AFSPA.
The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions lucidly summarised the impunity and extra-judicial executions in her report to the 57th session of the United Nations Commission on Human Rights:
“Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity. ....., extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing justice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration. Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post-conflict peace-building efforts include effective measures to end the culture of impunity and protect the rule of law.”103
While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated “Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government’s fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case”.104
In its Concluding Observations, the United Nations Human Rights Committee noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant”.
There are adequate legal guarantees for preventing vexatious and frivolous actions. However, by making it mandatory to seek prior permission of the Central government to initiate any legal proceedings against the armed forces, the Executive has expressed its lack of faith in the judiciary of the country.
Abuses by the Armed Opposition Groups
1. Background on the Armed Opposition Groups in Manipur
Manipur literally meaning “A jeweled land” came under the British Rule as a Princely State after the defeat in the Anglo-Manipuri War of 1891. After independence of India in 1947, the Princely State of Manipur was merged in the Indian Union on 15 October 1949 and became a full-fledged State of India on the 21 January 1972.
Manipur was recognized as a state in 1972, nine years after Nagaland was created out of Assam in 1963. The Manipuri language was included in the Eight Schedule of the Constitution of India in 1992 after a prolong struggle.
Manipur is not only about the Meiteis who profess Vaisnavites Hinduism. It is also home to about 30 different tribes who profess Christianity. Some of the larger tribes include Nagas, Kukis, Paites, Thadous, Simtes, Vaipheis, Raltes, Gangtes and Hmars. Unlike the Meiteis, who occupy the Imphal Valley and constitute a little over 50% of the total population, the other tribes inhabit the surrounding hill districts.
The Meitei armed opposition groups were mainly based in Imphal valley although the Kuki Movement for Human Rights alleged that they have strengthened their bases in hilly areas.
The first armed opposition group, United National Liberation Front (UNLF), was formed on 24 November 1964 by Samarendra Singh demanding independence from India. Since then many armed opposition groups led by Meiteis were established with similar objectives. The People’s Revolutionary Party of Kangleipak (PREPAK) was formed in 1977. The People’s Liberation Army (PLA) was formed in 1978. The Kangleipak Communist Party (KCP) was formed in 1980. As an off-shoot of UNLF, Kanglei Yaol Kanba Lup (KYKL) was formed in 1990s. All the Meitei armed opposition groups reportedly function presently under the banner of Manipur People’s Liberation Front (MPLF).112
After a series of clashes between Meiteis and the Pangals, the Manipuri muslims, in May, 1993 which led to the killings of 97 persons, a number of new outfits such as People’s United Liberation Front (PULF), North East Minority Peoples Front (NEMPF), Islamic National Front, Islamic Revolutionary Front (IRF) and United Islamic Liberation Army (UILA) were formed.
Of the 40 Naga sub-tribes in the North East, there are over 20 Naga tribes in Manipur particularly in Ukhrul, Senapati, Chandel and Tamenglong districts. Both factions of the National Socialist Council of Nagaland, the Issac-Muivah and Kaplang factions are active in Manipur. The Naga armed opposition groups demand independence of Naga inhabited areas. In the negotiation between the government of India and the NSCN (I-M), the issue of “Greater Nagaland” consisting of the Naga inhabited areas in Assam, Arunachal Pradesh, Manipur and Nagaland has figured.
The Meiteis, the State government of Manipur and the Meitei armed opposition groups oppose the inclusion of the Naga inhabited areas into the so called Greater Nagaland. The extension of the cease-fire agreement between the National Socialist Council of Nagaland and the government of India into Manipur led to protest and the burning of the Manipur State assembly in June 2001. The State Government of Manipur however withdrew the ban on the NSCN on 30 November 2002.113
The conflicts between the Nagas and the Kukis since 1992 led to emergence of a number of Kuki armed opposition groups such as Kuki National Army (KNA), Kuki National Front (KNF), Kuki Revolutionary Army (KRA), Zomi Revolutionary Army (ZRA) and the United Kuki Liberation Front. Most of these Kuki outfits are demanding a “separate homeland” within the Indian union.
Since Manipur has been declared as a Disturbed Area in 1980, according to Manipur Chief Minister Ibobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.114
2. Executions by the Armed Opposition Groups
The armed opposition groups have been responsible for torture, extrajudicial executions, hostage taking, extortions and blatant violations of the provisions of International Humanitarian Laws. The victims include innocent civilians, alleged police informers and corrupt officials or simply inability to pay extortion money.
The people of Manipur are caught in a vicious cycle. The nexus between the political leaders and armed opposition groups is a public knowledge in Manipur. The extortion, euphemistically called as taxes by the armed opposition groups, is also public knowledge and often collected under the noses of the administration. Across the highways both the security forces and armed opposition groups extort from innocent people as well as businessmen.
The armed opposition groups reportedly collect taxes from sources - meaning a government official from a particular department has to collect the extortion money, euphemistically called “taxes” on behalf of the armed opposition groups who then distribute it among themselves. All government officials including the senior most officials allegedly pay taxes. In a rare incident, in June 2004, the State government accorded sanction for prosecution of two employees of the All India Radio, Imphal who are accused of collecting illegal “taxes” from fellow employees on behalf of three separate underground organisations under the Unlawful Activities (Prevention) Act. The two men, Meisnam Achou Singh, 56, of Keisampat Mutum Leirak, a programme executive, and Hijam Homendro Singh, 57, of Kongpal Khaidem Leikai, an accountant, allegedly collected a total of Rs. 3,34,310 from 122 fellow employees at the rate of 1% of basic pay, and paid the same to activists of the underground UNLF, PREPAK and KYKL during the year 2000.115
The situation of the Kukis exemplies the plight of the civilians. According to the Kuki Movement for Human Rights armed opposition groups forcibly stay in their villages, mix themselves with the civil population, use the civilians as human shields against the security forces. The villagers are used for sentry day and night on rotation as well as for cooking and carrying supplies needed by them. All paths are mined (land mine) thereby making free movement difficult both human being and domestic animals. The people also have to give food. When the security forces find the members of the armed opposition groups, the villagers are subjected to atrocities for informing the security forces. If the security forces come to know about the presence of the armed opposition groups, the villagers are once again blamed for proving shelter and support.116
Excerpts from the Supreme Court Judgement on Armed Forces Special Powers Act
SUPREME COURT OF INDIA on Armed Forces (Special Powers) Act, 1958 Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84
Naga People’s Movement of Human Rights, etc. - Petitioner vs. Union of India - Respondent
Before J.S. Verma, CJI and other four Judges 27 November, 1997
Operative Part of the Judgement (Relevant extracts) 74. In the light of the above discussion we arrive at the following conclusions:
(1) Parliament was competent to enact the Central Act in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I. After the insertion of Entry 2A in List I by the Forty Second Amendment of the Constitution, the legislative power of Parliament to enact the Central Act flows from Entry 2A of List I. It is not a law in respect of maintenance of public order falling under Entry I and List II.
(2) The expression ‘in aid of the civil power” in Entry 2A of List I and in Entry 1 of List II implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State.
(3) The word ‘aid” postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will continue to function.
(4) The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power of a State does not include within its ambit the power to enact a law which would enable the armed forces of the Union to supplant or act as a substitute for the civil power in the State. The armed forces of the Union would operate in the State concerned in cooperation with the civil administration so that the situation which has necessitated the deployment of armed forces is effectively dealt with and normalcy is restored.
(5) The Central Act does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power.
(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution.
(7) Section 3 of the Central act does not confer an arbitrary or unguided power to declare an area as a ‘disturbed area”. For declaring an area as a ‘disturbed area” under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union territory of the Central Government can from an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of civil power is necessary.
(8) A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.
(9) Although a declaration under Section 3 can be made by the Central Government suo motto without consulting the concerned State Government, but it is desirable that the State Government be consulted while making the declaration.
(10) The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.
(11) The conferment of the power to make a declaration under Section 3 of the Central Act of the Government is not violative of the federal scheme as envisaged by the Constitution.
(12) The provision contained in Sections 130 and 131 Cr.P.C. cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Central Act.
(13) The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution.
(14) While exercising the powers conferred under Section 4(a) of the Central Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.
(15) A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.
(16) The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer in charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.
(17) The provisions of Cr.P.C. governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.
(18) Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.
(19) While exercising the power conferred under clauses (a) to (d) of Section 4 the officers of the armed forces shall strictly follow the instructions contained in the list of ‘Do’s and Don’ts” issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950.
(20) The instructions contained in the list of ‘Do’s and Don’ts” shall be suitably amended so as to bring them in conformity with the guidelines contained in the decisions of this Court and to incorporate the safeguards that are contained in clauses (a) to (d) of Section 4 and Section 5 of the Central Act as construed and also the direction contained in the order of this Court dated July 4, 1991 in Civil Appeal No. 2551 of 1991.
(21) A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be granted under Section 6 of the Central Act.
It took an unusual form of protest by some members of the Meira Paibis, women activists, who stripped in front of the Kangla Fort, then headquarter of the Assam Rifles on 15 July 2004, followed by an equally unprecedented civil disobedience movement in Manipur never seen in independent India to establish the Committee to Review (hereinafter referred to as “Review Committee”) the Armed Forces Special Powers Act (AFSPA), 1958 on 8 December 2004. The protests were against the alleged extrajudicial execution of Ms Thangjam Manorama Devi on the night of 11 July 2004 by the Assam Rifles personnel and the withdrawal of the AFSPA.
The AFSPA empowers the representative of the Central government, the governor to subsume the powers of the State government to declare “undefined” disturbed areas. It also empowers the non-commissioned officers of the armed forces to arrest without warrant, to destroy any structure that may be hiding absconders without any verification, to conduct search and seizure without warrant and to shoot even to the causing of death. No legal proceeding against abuse of such arbitrary powers can be initiated without the prior permission of the Central government. While introducing the AFSPA on 18 August 1958, the government accepted it as an emergency measure and it was supposed to have remained in operation only for one year.
The demand of the populace affected by the AFSPA either to completely withdraw or substantively review the Act is matched by the demand for its retention by the armed forces and the hawks. A section of the Apunba Lup, a congregation of 32 civil society organisations of Manipur leading the civil disobedience movement, called for a “public curfew” on 27 December 2004, the day members of the Review Committee reached Imphal, to press its demand for complete repeal of the AFSPA. Other members of the Apunba Lup and the family members of Manorama Devi, however, submitted their representations to the Review Committee. Immediately after the visit of the Review Committee to Manipur, General Officer Commanding in Chief (Eastern Region), Lt General Arvind Sharma in his first press conference at Kolkata on 3 January 2005 stated that the provisions of the AFSPA is “absolutely essential” to tackle insurgency in the country. “I am afraid that without the AFSPA, the Army will not be able to function in insurgency situations... Without the Act, we will be a reactive” -stated Lt General Sharma.2
The mushrooming of the non-State actors and violations of the international humanitarian laws by these groups are realities of the North East India. “There is no doubt that States have legitimate reasons, right and duty to take all due measures to eliminate terrorism to protect their nationals, human rights, democracy and the rule of law and to bring the perpetrators of such acts to justice”.3 However, that does not give the State the right to take away the right to life in an intentional and unlawful way or violate human rights guaranteed under the constitution and international law. The AFSPA has become the main symbol of repression because of its sheer misuse as demonstrated in the various case studies of last few years provided in this study. In addition, a few armed opposition groups were also initially created by State agencies as a part of the counter-insurgency operations and these groups, later on, became Frankenstein monsters.4
There is no doubt that the armed forces operate in difficult and trying circumstances in the areas afflicted by internal armed conflicts. It is in these situations that the supremacy of the judiciary and the primacy of the rule of law need to be upheld. However, if the law enforcement personnel stoop to the same level as the non-State actors and perpetrate the same unlawful acts, there will be no difference between the law enforcement personnel and the non-State actors whom the government calls “terrorists”.
This representation, submitted to the Review Committee, provides an analysis of the illegality of the provisions of the AFSPA, the abuse of these provisions and therefore the need for its review and specific recommendations. It also contains documents on national, regional and international human rights standards to ensure that amended the provisions of the AFSPA are “in consonance with the obligations of the Government towards protection of Human Rights”. As Manipur has been the epicentre of the movement against the AFSPA, the case studies are cited mainly from Manipur. – Suhas Chakma, Director
Executive Summary
“... there (Assam and Manipur), they (certain misguided sections of the Nagas, in the words of Mr. Pant) are indulging in -arson, murder, loot, dacoity etc. So it has become necessary to adopt effective measures for the protection of the people in those areas. In order to enable the armed forces to handle the situation effectively wherever such problem arises hereafter, it has been considered necessary to introduce this Bill.” - then Home Minister G B Pant while introducing the Armed Forces Special Powers Bill on 18 August 1958.
“In my humble opinion, this measure is unnecessary and also unwarranted. This Bill is sure to bring about complications and difficulties in those areas, especially in those which are going to be declared as disturbed areas. I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases, especially in the sub-divisions of Kohima and Mokokchung. In such a situation, I do not like that the officers should be invested with special powers. Recently, such an incident took place in the Headquarters of the North Cachar and Mikir Hills District. Instead of rounding (up) the hostile Nagas, some military personnel trespassed into the houses of some retired tribal official and committed rape on the widow. So, such things have deteriorated the situation. The tribal people have risen against the military people there. It is, therefore, dangerous to invest the military authorities with extraordinary powers of killing and of arrest without warrant and of house breaking…… How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only severe the right of the people and harass innocent folk and deteriorate the situation.”- Mr. Laishram Achaw Singh, MP from Inner Manipur Parliamentary Constituency while objecting to the AFSP Bill.5
Modelled on the Armed Forces (Special Powers) Ordinance promulgated by the colonial British government on 15 August 1942 to suppress “Quit India Movement”, the Armed Forces Special Powers Act of 1958 (AFSPA) was initially supposed to have remained in operation for one year to tackle the Naga problem. However, after 45 years of imposition of the AFSPA, the Naga problem is far from resolved. The government of India and Naga armed opposition groups - both Issac-Muivah and Kaplang factions of the National Socialist Council of Nagaland - have been engaged in a peace process since July 1997. The peace process stresses the axiom that political problems cannot be resolved by merely terming it as law and order problems - “arson, murder, loot, dacoity” - crimes which are more associated with mainland India’s Uttar Pradesh, Bihar and Madhya Pradesh.
There is no doubt that a large number of armed opposition groups operate in Manipur and elsewhere in the North East and that they have been responsible for gross human rights abuses. Yet, unlawful law enforcement only begets contempt for the rule of law and contributes to a vicious cycle of violence. The unusual form of demonstrations by some members of the Meira Paibis who stripped themselves in front of the Kangla Fort on 15 July 2004 was an act of desperation to protest against the systematic denial of access to justice even for unlawful, intentional, arbitrary, summary and extrajudicial deprivation of the right to life. The third preambular paragraph of the Universal Declaration of Human Rights - “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” - is prophetic about such situations.
A reckless approach towards human life and liberty in the last 45 years under the AFPSA has been counter-productive and caused alienation of the people in the North East. The review of the AFSPA is overdue for many reasons.
First, the AFSPA has manifestly failed to contain, let alone resolve, all insurgency problems in the North East. When the AFSPA was imposed on 8 September 1980, there were only four armed opposition groups in Manipur - the United National Liberation Front, People’s Revolutionary Party of Kangleipak, People’s Liberation Army, and National Socialist Council of Nagaland. However, today there are over two dozens armed opposition groups including the Kanglei Yaol Kanba Lup, People’s United Liberation Front, North East Minority Peoples Front, Islamic National Front, Islamic Revolutionary Front, United Islamic Liberation Army, Kuki National Army, Kuki National Front, Kuki Revolutionary Army, Zomi Revolutionary Army and the United Kuki Liberation Front, among others.
Second, there are adequate laws to deal with insurgency situations and the non-State actors. While India did not have specific laws in 1958 to deal with armed opposition The AFSPA: Lawless law enforcement according to the law? groups, it has subsequently adopted numerous draconian laws such as the Terrorist and Disruptive Activities (Prevention Act), 1985 and the Prevention of Terrorism Act (POTA), 2002. After the lapse of these laws, the government of India amended the Unlawful Activities (Prevention) Act of 1967 in December 2004 to incorporate the provisions of the POTA. The Unlawful Activities (Prevention) Act of 1967 as amended in 2004 is adequate to deal with all insurgent groups and their unlawful activities.
Third, the strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. It requires putting in place effective criminal-law provisions to deter the commission of offences against the innocents and punishment for breaches of such provisions while exercising executive powers; and not in providing the arbitrary powers to the law enforcement personnel to be law unto themselves. The AFSPA violates basic tenets of criminal justice system in any civilized society. First, it provides special powers which tantamount to awarding heavier penalty to the suspects than convicted persons would get under normal court, a clear violation of the cardinal principle of criminal justice system - nullum crimen, nulla poena sine lege.6 Second, non-application of due process of law makes the armed forces to be their own judge and jury. Most importantly, by giving virtual impunity to the armed forces under Section 6 of the AFSPA which makes its mandatory to seek prior permission of the Central government to initiate any legal proceedings, the Executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious, abusive or frivolous.
Though, there is no need for retention of the AFSPA, the Review Committee appears to have already decided to retain the AFSPA with some amendments. It has called for representation on whether it should recommend to the government of India to “(i) amend the provisions of the Act to bring them in consonance with the obligations of the Government towards protection of Human Rights; or (ii) replace the Act by a more humane legislation.” Both the proposals have the same end - the retention of the Act.
In order to uphold the supremacy of the judiciary and primacy of the rule of law, the Review Committee must ensure that the judgements of the Supreme Court of India and opinions of international bodies including the United Nations Human Rights Committee on the AFSPA are incorporated in the amended AFSPA. Leaving it to the armed forces to respect “Do’s and Don’ts” issued by the army authorities as naively espoused by the Supreme Court of India in its controversial judgment on the constitutional validity of the AFSPA and to the courts to decide “case by case basis” have proved to be inadequate, ineffective and counter productive because of continued violations of human rights.
Extrajudicial Executions for Maintenance of Public Order
Since Manipur has been declared as a “disturbed area” on 8 September 1980, according to Manipur Chief Minister Lbobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.35
In practice, there are hundreds of armed encounters each year. Not every armed encounter is questioned. However, when people, whether innocent civilians, suspects or members of armed oppositions groups are captured from their houses or villages and routinely killed in fake encounters, allegations of extrajudicial killings surface. Yet, there has been little or no documentary evidence to prove that the victims were indeed arrested as no arrest memo is issued, not to mention about evidence to prove subsequent extrajudicial executions.
However, the extrajudicial execution of Ms Thangjam Manorama Devi has both exceptional as well as routine aspects.
It is exceptional because unlike hundreds of other arrests, the Assam Rifles personnel issued an arrest warrant. Havildar (General Duty) Suresh Kumar (No. 173355) of the 17th Assam Rifles signed the arrest memo. Rifleman T Lotha (No. 173916) and Rifleman Ajit Singh (No. 173491) signed as witnesses. The arrest memo stated that Ms Manorama Devi was arrested as a suspected member of the Peoples Liberation Army and they recovered nothing from her and that she was healthy at the time of her arrest.36
The recovery of Manorama’s dead body from Ngariyan Mapao Maring village on the morning of 12 July 2004 with telltale signs of brutal torture all over her body is a routine matter.37
Prior to the inquiry into the death of Manorama Devi, Justice Upendra conducted over half a dozen similar inquiries. Justice Upendra Commission as required under normal law of the land summoned the concerned Assam Rifles personnel to depose as mere witness since they had signed the arrest warrant for Manorama. The fact that the Assam Rifles questioned the jurisdiction of the Upendra Commission of Inquiry on the ground that the State government had not taken prior permission from the Central government is nothing unusual either.
Impunity to the Armed Forces
Under Section 6 of the Armed Forces Special Powers Act, “No prosecution, suit or other legal proceedings 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 powers conferred by this Act.”101
This provision violates India’s treaty obligation under Article 2(3) of the ICCPR according to which:
“Each State Party to the present Covenant undertakes:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
To ensure that the competent authorities shall enforce such remedies.”
What is more worrying is the fact that Section 6 of the AFSPA has been overtaken by Section 197 of the Criminal Procedure Code102 (Cr.P.C.) amended in 1991 to provide virtual impunity to the armed forces. Impunity has been made a feature of normal criminal jurisprudence. In fact Section 197 of the Cr P.C. has made section 6 of the AFSPA redundant. If the Central government were to give permission under section 197 of the Cr P.C., there is no reason as to why the same permission will not be granted under Section 6 of the AFSPA.
The United Nations Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions lucidly summarised the impunity and extra-judicial executions in her report to the 57th session of the United Nations Commission on Human Rights:
“Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity. ....., extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim. Long-standing discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing justice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration. Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post-conflict peace-building efforts include effective measures to end the culture of impunity and protect the rule of law.”103
While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated “Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government’s fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case”.104
In its Concluding Observations, the United Nations Human Rights Committee noted “with concern that criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled in accordance with article 2, paragraph 3, of the Covenant”.
There are adequate legal guarantees for preventing vexatious and frivolous actions. However, by making it mandatory to seek prior permission of the Central government to initiate any legal proceedings against the armed forces, the Executive has expressed its lack of faith in the judiciary of the country.
Abuses by the Armed Opposition Groups
1. Background on the Armed Opposition Groups in Manipur
Manipur literally meaning “A jeweled land” came under the British Rule as a Princely State after the defeat in the Anglo-Manipuri War of 1891. After independence of India in 1947, the Princely State of Manipur was merged in the Indian Union on 15 October 1949 and became a full-fledged State of India on the 21 January 1972.
Manipur was recognized as a state in 1972, nine years after Nagaland was created out of Assam in 1963. The Manipuri language was included in the Eight Schedule of the Constitution of India in 1992 after a prolong struggle.
Manipur is not only about the Meiteis who profess Vaisnavites Hinduism. It is also home to about 30 different tribes who profess Christianity. Some of the larger tribes include Nagas, Kukis, Paites, Thadous, Simtes, Vaipheis, Raltes, Gangtes and Hmars. Unlike the Meiteis, who occupy the Imphal Valley and constitute a little over 50% of the total population, the other tribes inhabit the surrounding hill districts.
The Meitei armed opposition groups were mainly based in Imphal valley although the Kuki Movement for Human Rights alleged that they have strengthened their bases in hilly areas.
The first armed opposition group, United National Liberation Front (UNLF), was formed on 24 November 1964 by Samarendra Singh demanding independence from India. Since then many armed opposition groups led by Meiteis were established with similar objectives. The People’s Revolutionary Party of Kangleipak (PREPAK) was formed in 1977. The People’s Liberation Army (PLA) was formed in 1978. The Kangleipak Communist Party (KCP) was formed in 1980. As an off-shoot of UNLF, Kanglei Yaol Kanba Lup (KYKL) was formed in 1990s. All the Meitei armed opposition groups reportedly function presently under the banner of Manipur People’s Liberation Front (MPLF).112
After a series of clashes between Meiteis and the Pangals, the Manipuri muslims, in May, 1993 which led to the killings of 97 persons, a number of new outfits such as People’s United Liberation Front (PULF), North East Minority Peoples Front (NEMPF), Islamic National Front, Islamic Revolutionary Front (IRF) and United Islamic Liberation Army (UILA) were formed.
Of the 40 Naga sub-tribes in the North East, there are over 20 Naga tribes in Manipur particularly in Ukhrul, Senapati, Chandel and Tamenglong districts. Both factions of the National Socialist Council of Nagaland, the Issac-Muivah and Kaplang factions are active in Manipur. The Naga armed opposition groups demand independence of Naga inhabited areas. In the negotiation between the government of India and the NSCN (I-M), the issue of “Greater Nagaland” consisting of the Naga inhabited areas in Assam, Arunachal Pradesh, Manipur and Nagaland has figured.
The Meiteis, the State government of Manipur and the Meitei armed opposition groups oppose the inclusion of the Naga inhabited areas into the so called Greater Nagaland. The extension of the cease-fire agreement between the National Socialist Council of Nagaland and the government of India into Manipur led to protest and the burning of the Manipur State assembly in June 2001. The State Government of Manipur however withdrew the ban on the NSCN on 30 November 2002.113
The conflicts between the Nagas and the Kukis since 1992 led to emergence of a number of Kuki armed opposition groups such as Kuki National Army (KNA), Kuki National Front (KNF), Kuki Revolutionary Army (KRA), Zomi Revolutionary Army (ZRA) and the United Kuki Liberation Front. Most of these Kuki outfits are demanding a “separate homeland” within the Indian union.
Since Manipur has been declared as a Disturbed Area in 1980, according to Manipur Chief Minister Ibobi Singh over 8,000 innocent persons and over 12,000 members of armed opposition groups and security forces have lost their lives.114
2. Executions by the Armed Opposition Groups
The armed opposition groups have been responsible for torture, extrajudicial executions, hostage taking, extortions and blatant violations of the provisions of International Humanitarian Laws. The victims include innocent civilians, alleged police informers and corrupt officials or simply inability to pay extortion money.
The people of Manipur are caught in a vicious cycle. The nexus between the political leaders and armed opposition groups is a public knowledge in Manipur. The extortion, euphemistically called as taxes by the armed opposition groups, is also public knowledge and often collected under the noses of the administration. Across the highways both the security forces and armed opposition groups extort from innocent people as well as businessmen.
The armed opposition groups reportedly collect taxes from sources - meaning a government official from a particular department has to collect the extortion money, euphemistically called “taxes” on behalf of the armed opposition groups who then distribute it among themselves. All government officials including the senior most officials allegedly pay taxes. In a rare incident, in June 2004, the State government accorded sanction for prosecution of two employees of the All India Radio, Imphal who are accused of collecting illegal “taxes” from fellow employees on behalf of three separate underground organisations under the Unlawful Activities (Prevention) Act. The two men, Meisnam Achou Singh, 56, of Keisampat Mutum Leirak, a programme executive, and Hijam Homendro Singh, 57, of Kongpal Khaidem Leikai, an accountant, allegedly collected a total of Rs. 3,34,310 from 122 fellow employees at the rate of 1% of basic pay, and paid the same to activists of the underground UNLF, PREPAK and KYKL during the year 2000.115
The situation of the Kukis exemplies the plight of the civilians. According to the Kuki Movement for Human Rights armed opposition groups forcibly stay in their villages, mix themselves with the civil population, use the civilians as human shields against the security forces. The villagers are used for sentry day and night on rotation as well as for cooking and carrying supplies needed by them. All paths are mined (land mine) thereby making free movement difficult both human being and domestic animals. The people also have to give food. When the security forces find the members of the armed opposition groups, the villagers are subjected to atrocities for informing the security forces. If the security forces come to know about the presence of the armed opposition groups, the villagers are once again blamed for proving shelter and support.116
Excerpts from the Supreme Court Judgement on Armed Forces Special Powers Act
SUPREME COURT OF INDIA on Armed Forces (Special Powers) Act, 1958 Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985, 2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84
Naga People’s Movement of Human Rights, etc. - Petitioner vs. Union of India - Respondent
Before J.S. Verma, CJI and other four Judges 27 November, 1997
Operative Part of the Judgement (Relevant extracts) 74. In the light of the above discussion we arrive at the following conclusions:
(1) Parliament was competent to enact the Central Act in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I. After the insertion of Entry 2A in List I by the Forty Second Amendment of the Constitution, the legislative power of Parliament to enact the Central Act flows from Entry 2A of List I. It is not a law in respect of maintenance of public order falling under Entry I and List II.
(2) The expression ‘in aid of the civil power” in Entry 2A of List I and in Entry 1 of List II implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State.
(3) The word ‘aid” postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will continue to function.
(4) The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power of a State does not include within its ambit the power to enact a law which would enable the armed forces of the Union to supplant or act as a substitute for the civil power in the State. The armed forces of the Union would operate in the State concerned in cooperation with the civil administration so that the situation which has necessitated the deployment of armed forces is effectively dealt with and normalcy is restored.
(5) The Central Act does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power.
(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution.
(7) Section 3 of the Central act does not confer an arbitrary or unguided power to declare an area as a ‘disturbed area”. For declaring an area as a ‘disturbed area” under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union territory of the Central Government can from an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of civil power is necessary.
(8) A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.
(9) Although a declaration under Section 3 can be made by the Central Government suo motto without consulting the concerned State Government, but it is desirable that the State Government be consulted while making the declaration.
(10) The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.
(11) The conferment of the power to make a declaration under Section 3 of the Central Act of the Government is not violative of the federal scheme as envisaged by the Constitution.
(12) The provision contained in Sections 130 and 131 Cr.P.C. cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Central Act.
(13) The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution.
(14) While exercising the powers conferred under Section 4(a) of the Central Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.
(15) A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.
(16) The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer in charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.
(17) The provisions of Cr.P.C. governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.
(18) Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.
(19) While exercising the power conferred under clauses (a) to (d) of Section 4 the officers of the armed forces shall strictly follow the instructions contained in the list of ‘Do’s and Don’ts” issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950.
(20) The instructions contained in the list of ‘Do’s and Don’ts” shall be suitably amended so as to bring them in conformity with the guidelines contained in the decisions of this Court and to incorporate the safeguards that are contained in clauses (a) to (d) of Section 4 and Section 5 of the Central Act as construed and also the direction contained in the order of this Court dated July 4, 1991 in Civil Appeal No. 2551 of 1991.
(21) A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be granted under Section 6 of the Central Act.
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good story....
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