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A Presentation on Armed Forces (Special Powers) Act, 1958. PRESENTATION BY MAJ. GEN. NILENDRA KUMAR DIRECTOR AMITY LAW SCHOOL, NOIDA ON FEBRUARY, 2012. Is there any alternative to Armed Forces (Special Powers) Act, 1958. India attained its independence essentially by

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A presentation on armed forces special powers act 1958

A

Presentation

on

Armed Forces (Special Powers) Act, 1958


A presentation on armed forces special powers act 1958

PRESENTATION

BY

MAJ. GEN. NILENDRA KUMAR

DIRECTOR

AMITY LAW SCHOOL, NOIDA

ON

FEBRUARY, 2012


A presentation on armed forces special powers act 1958

Is there any alternative

to

Armed Forces (Special Powers) Act, 1958


A presentation on armed forces special powers act 1958

India attained

its

independence essentially

by

peaceful means

and

non violence


A presentation on armed forces special powers act 1958

It propagated Panch Sheel and the doctrine

of peaceful co-existence.


A presentation on armed forces special powers act 1958

The Indian Constitution is basically federal in

Form


A presentation on armed forces special powers act 1958

However, the same did not eliminate

unrest, hatred violence and threat to the

sovereignty of the country.


A presentation on armed forces special powers act 1958

RELEVANT CONSTITUTIONAL PROVISIONS


A presentation on armed forces special powers act 1958

However, not to be forgotten

Article 52 - There shall be a President of

India.

53(2) – The Supreme Command of the

Defence Forces of the Union shall be vested

in the President and the exercise thereof

shall be regulated by law.


Emergency provisions

EMERGENCY PROVISIONS

Article 355. Duty of the Union. It shall be

the duty of the Union to protect every State

against external aggression and internal

disturbance and to ensure that the

Government of every State is carried on in

accordance with the provisions of this

Constitution.


A presentation on armed forces special powers act 1958

Article 352 relates to the power of the

President to make a proclamation of

emergency if he is satisfied that the

security of India is threatened by war or

external aggression.


A presentation on armed forces special powers act 1958

SUBJECT MATTER OF LAWS MADE BY

PARLIAMENT AND BY THE STATE

LEGISLATURES


A presentation on armed forces special powers act 1958

Authority over use of the armed forces


Division of responsibility

DIVISION OF RESPONSIBILITY

Seventh Schedule

List 1– Union List

  • Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation.

  • Naval, military and air forces, any other armed forces of the Union.


A presentation on armed forces special powers act 1958

2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.


A presentation on armed forces special powers act 1958

List II – State List

  • Public order (but not including [the use of any naval, military or air force or any other armed force of the Union or of any contingent or unit thereof] in aid of the civil power).


A presentation on armed forces special powers act 1958

2. Police (including railway and village

police) subject to the provision of Entry 2-A of List I.


A presentation on armed forces special powers act 1958

Thus it would be significant to note

the duty of the Union in the matters of

national security and the clear cut

demarcation in the powers of the

Parliament and State Legislatures in this

regard.


A presentation on armed forces special powers act 1958

Having regard to the pluralistic nature of

Indian polity; multiplicity of religions &

languages, ethnic divisions and lack of

accommodation in political thoughts,

economic disparities and geographical

imbalances may at times give rise to

unresolved aspirations. Further, the

State may fail to bring about peaceful

and orderly settlement amongst the

society.


A presentation on armed forces special powers act 1958

A failure of the State administration to

maintain law and order may develop into

a situation, being ‘disturbed’ and

‘dangerous’, where the police and other

agencies available are not able to control

the extraordinary situation.


A presentation on armed forces special powers act 1958

The ultimate force available with the

Union is its armed force. Hence,

deployment of the armed forces of the

Union is the final choice.


Legal difficulties

LEGAL DIFFICULTIES

  • The armed forces personnel have no statutory authority to be deployed or to act within the country against own citizens.

  • A State Government has no authority to directly summon and deploy the military which is under the executive domain of the Union.


A presentation on armed forces special powers act 1958

3. Military personnel need to be suitably protected for actions taken by them in discharge of official duties.


A presentation on armed forces special powers act 1958

Hence, the need for the AFSPA


A presentation on armed forces special powers act 1958

Main purpose of AFSPA

  • Declaration about disturbed and dangerous situation when, by whom and how.

  • Powers to NCOs and above.

  • Duty of the Armed Forces.

  • Protection given to them.


Section 3

SECTION 3

Powers to declare areas to be disturbed

areas – If, in relation to any state or Union

Territory to which this act extends, the

Governor of that State or the administrator of

that Union Territory or the Central

Government, in either case, if of the opinion

that the whole or any part of such State of

Union territory, as the case may be, is in such

a disturbed or dangerous condition that


A presentation on armed forces special powers act 1958

the use of armed forces in aid of the civil

power is necessary, the Governor of that

State or the Administrator of that Union

Territory or the Central Government, as

the case may be , may by notification in

the Official Gazette,declare the whole or

such part of such State or Union territory

to be a disturbed area.


Section 4

SECTION 4

Special Powers of the armed forces

– Any commissioned officer, warrant

officer, non-commissioned officer or

any other person of equivalent rank in

The armed forces may, in a disturbed

area.


A presentation on armed forces special powers act 1958

  • 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 move persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;


A presentation on armed forces special powers act 1958

(b) if he is of opinion that it is necessary so to do, 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 as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;


A presentation on armed forces special powers act 1958

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;


A presentation on armed forces special powers act 1958

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.


Section 5

SECTION 5

Arrested persons to be made over to

the police –Any person arrested and

taken into custody under this Act shall be

made over to the officer in charge of

the nearest police station with the least

possible delay, together with a report

of the circumstances occasioning the

arrest.


Section 6

SECTION 6

Protection to persons acting under Act –

No prosecution, suit or other legal

proceeding 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 the powers conferred by this Act.


A presentation on armed forces special powers act 1958

Test of validity

of

AFSPA


A presentation on armed forces special powers act 1958

Naga People’s Movement of Human Rights

V

Union of India; AIR 1998 SC 431


Decision

DECISION

  • Act is not a colourable legislation or fraud on the Constitution.

  • Powers under Sections 4 and 5 are not arbitrary and unreasonable.


Criticism

CRITICISM

  • Retained for decades

  • Draconian powers to military. Use of force to the extent causing of death.

  • HR violations.

  • Sanctions for prosecution not given.


Restrictions by supreme court

RESTRICTIONS BY SUPREME COURT

  • Periodic review. Not to operate beyond six months.

  • Orders of Central Government to grant or withhold sanction to prosecute are subject to judicial review.

  • Do’s and Don’ts to be strictly followed.

  • Compensatory Justice – compensation to the victim.


A presentation on armed forces special powers act 1958

Operations by the Troops facilitated

  • Retention of weapons and explosives captured.

  • Interrogation allowed.


A presentation on armed forces special powers act 1958

Prime Minister’s assurance in December

2006 about changes in the Act.


A presentation on armed forces special powers act 1958

He promised a relook at the Act to see if it

needed to be retained if it could be turned

more humane.


A presentation on armed forces special powers act 1958

Justice Jeevan Reddy Committee Report


A presentation on armed forces special powers act 1958

Its report and recommendations are yet

to be made public.


A presentation on armed forces special powers act 1958

Act has remained in the Statute Book for last

five decades. Both during Congress and

non Congress Governments.


A presentation on armed forces special powers act 1958

There is no option but to retain the AFSPA


A presentation on armed forces special powers act 1958

A way forward is to humanise AFSPA by

framing of Rules and executive steps.


A presentation on armed forces special powers act 1958

EXECUTIVE MEASURES


How to humanise

HOW TO HUMANISE

Use the tool of court of inquiry for prompt and

transparent investigations

1. Obligatory to convene inquiry in all cases of civil deaths, grievous injury or allegations sexual harassment etc. Do so within 72 hours.

2. Co-opt a civil official.

3. Woman officer to be a member/in attendance.

4. Venue to be easily accessible to local public.


A presentation on armed forces special powers act 1958

Video tape all military missions to achieve

greater transparency and accountability.


A presentation on armed forces special powers act 1958

Incentives/awards for capturing militants

alive. Hopefully, this may cut down

number of those killed.


A presentation on armed forces special powers act 1958

ALLEGATIONS OF FALSE ENCOUNTERS

AND FORCED DISAPPEARANCE

Allow local NGOs to lodge complaints


A presentation on armed forces special powers act 1958

A civil magistrate to accompany each

contingent of Army. If not feasible,

record reasons. This would bring in

transparency and independent check


A presentation on armed forces special powers act 1958

Decision to accord or deny sanction in three

months.


A presentation on armed forces special powers act 1958

PROTECTION OF HUMAN RIGHTS ACT

NHRC may be allowed to refer and seek

reports.


A presentation on armed forces special powers act 1958

All complaints against Army personnel

pending in police stations should be

thoroughly probed in a time bound

manner.


A presentation on armed forces special powers act 1958

Due publicity of cases where disciplinary

actions have been taken against military

personnel for human rights personnel.


A presentation on armed forces special powers act 1958

Frame clear guidelines to lay down policy

about according/denial of sanction for

prosecution under Section 6.


A presentation on armed forces special powers act 1958

AFSPA has no provisions relating to rule

making powers.


A presentation on armed forces special powers act 1958

Recommended

Framing of Rules


Rules to lay down

RULES TO LAY DOWN

  • Definition of armed forces.

  • Difference between ‘disturbed’ and ‘dangerous’ situations.

  • Threshold level for above.

  • Warning before opening fire – Language, duration, means and caution.

  • Recording of the opinion of the officer of the designated category.


A presentation on armed forces special powers act 1958

NEED OF THE HOUR

Urgent discussion on steps to change

working of AFSPA would be a pragmatic

move in resolving an issue of major

national concern.


A presentation on armed forces special powers act 1958

THANKS


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