The Armed Forces Special Powers Act 1958 was never meant to be a soft legislation that would deal with routine law and order problems. This much is accepted by even the worst critics of the Act. So, why is there such opposition to its stringent provisions? The answer to that depends on who you are. If you are a separatist, you cry foul because the law strikes you like a sledgehammer and seriously hampers your campaign to spread hatred and secessionism. The human rights activists — including non-governmental organisations and some lawyers as well — find in the Act a reason to hit out at the Armed Forces and indoctrinate their audience into believing that the forces are there to just plunder, humiliate and kill. If you happen to be a politician, the AFSPA comes in handy to camouflage your blunders that are in the first place responsible for the situation that demanded invocation of the legislation. In all cases, the Armed Forces become the scapegoat.
To understand the extent to which critics can go in aborting a measure that is designed to help combat internal aggression that threatens the country’s very integrity, one needs to revisit a development that happened 14 years ago and has been commented upon extensively. Through a bunch of writs, some petitioners, including the Naga People’s Movement of Human Rights, represented by established lawyers, challenged the Act in the Supreme Court on two major premises: One; Parliament had no legislative competence to enact AFSPA and, two; the provisions of the Act were either unnecessary or too sweeping without checks and balances.
A third point that arose as a corollary is most interesting: Suggestions were offered that the Union Government could impose Emergency in ‘disturbed’ regions rather than set the trouble right through judicious use of the Armed Forces. Some truly outlandish arguments were offered, all of which were mercifully trashed by a five-member Constitution Bench of the apex court. Now, when the demand for scrapping, diluting or revoking the Act has gathered renewed momentum following the unfortunate violence in the Kashmir Valley, the apex court’s observations are more relevant than ever.
One of the grounds the opponents of the Act offer is that the legislation is “draconian” and “inhumane” because it vests extreme powers in the Armed Forces to arrest suspected extremists, raod hideouts and seize arms and ammunition, all the while enjoying immunity from legal scrutiny. This is not entirely factual, but we shall leave it at that for the moment and concentrate on the options that the petitioners who approached the apex court suggested. Even a quick reading of the landmark apex court judgement of 1997 leads one to the conclusion that the upholders of humanity and anti-draconianism had actually suggested that the Union Government should have considered invoking Article 352 that deals with the imposition of Emergency, rather than resort to invoking AFSPA.
They also contended that the Union Government had bypassed yet another option: Invocation of Article 356 of the Constitution that facilitates summary dismissal of a State Government and imposition of President’s rule. In other words, the petitioners seemed to have no problem with the repression and loss of various civil rights that an Emergency would entail, but they had issues with the Armed Forces Special Powers Act.
The Supreme Court was, of course, not impressed by this argument. But before it dismissed the twin contentions as lacking in “substance”, it dwelt upon the positions taken by the petitioners, represented among others by then senior advocate and now Cabinet Minister Kapil Sibal who felt that Articles 352 or 356 would have served the purpose since the menace was one of “armed rebellion”. The Justices observed, “Shri Sibal has urged that the Central Act was enacted to deal with a disturbed or dangerous condition which is no less than armed rebellion and the Parliament is seeking to bypass Article 352 or Article 356 of the Constitution and the Central Act is, therefore, unconstitutional”.
This was rightly countered by then Attorney-General Ashok Desai, who pointed out that the proclamation of Emergency had greater consequences and could seriously impact the legislative and executive powers of the state. In contrast, he added, the powers under AFSPA were limited in nature. Underlining its opposition to needless imposition of such strong provisions, the court said, “If the situation can be handled by deployment of Armed Forces of the Union in the disturbed area, there appears to be no reason why the drastic power under Article 352 should be invoked”.
On the wisdom of imposing Article 356 instead of having invoked AFSPA, the court was as categorical in its rejection, pointing out that, while AFSPA ensures that legislative and executive powers remain with the State, imposition of Article 356 would vest all powers with the Union Government, a decidedly less attractive option. The Justices stated, “We are unable to appreciate how the enactment of the Central Act (AFSPA) can be equated with the exercise of the power under Article 356 of the Constitution”.
The issue is also one that goes beyond the silly attempt at such an equation. It knocks the bottom off the argument that opponents of the Act forward: Because AFSPA is so central in nature and intrudes upon the daily lives of citizens, it is alienating the people of the region it operates in. If this alienates the people, what about Article 356 through which the Union Government rules a State, and which negates the concept of elected Government?
In all this legalese, one must not lose sight of the fact that the learned advocates through their petitioners consistently argued for the imposition of provisions that were clearly more stringent than those provided by AFSPA, all the while questioning first the legality of the legislation and then the legitimate powers it gave to the Armed Forces to act in disturbed areas.
The hollow contention of the petitioners was exposed on another ground when they ranted against provisions of Section 6 of the Act, which they claimed provided legal immunity to those (the Armed Forces personnel) who exercised the powers granted by the Act. This is an issue that continues to raise a storm, with opponents of AFSPA alleging that the Army was acting like despots in “disturbed” regions, rounding up people and humiliating them and their family members, knowing they cannot be punished. The court rubbished the claim, saying, “It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where discretion is vested in the Government and not in a minor official.”
But, look at how easily our AFSPA-bashers assume that the Act provides discriminatory powers to the Armed Forces. They refuse to take cognisance of the fact that armed personnel in disturbed areas need permission from a civilian officer such as the magistrate or a military officer to undertake any punitive action like search, seizure and arrest. They have to work under a list of uncompromising do’s and don’ts. And, while it is true that their actions per se cannot be challenged in a court of law, if any wrong-doing on their part is established by a probe, they can be punished. The court observed, “We are of the view that since the order of the Union Government refusing or granting sanction under Section 6 is subject to judicial review, the Union Government shall pass an order giving reasons”. This effectively means that an aggrieved party can approach the courts against the Union Government’s decision to order, or not order, a probe against security personnel functioning under AFSPA provisions. So, where is the immunity except in field operations?