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Among others, AFSPA, is archaic in its silence on gender insensitivity and child rights

Life Beyond AFSPA: Why Manipur Government’s Retrospective Declaration of Disturbed Area is Legally Untenable and Dangerous

Let me begin with a simple proposition- AFSPA is a surveillance system. The Hon’ble Supreme Court, while upholding the constitutionality of AFSPA, had held that even if it may appear that the armed forces may have unbridled powers under the AFSPA, it doesn’t necessarily mean that they will use them arbitrarily. Paraphrasing, it may be said that there are sufficient protections enough to prevent such misuse. Hence, the proposition that AFSPA is a surveillance system.

Furthermore, the imposition or enforcement of this “extraordinary” Act requires the existence of an “extraordinary” situation in the first place. AFSPA is to be operative in “disturbed areas” only. And if I am to interpret the judgement of the Hon’ble Supreme Court, even then, the “extraordinary” powers under section 4 of the AFSPA are to be resorted to only after prohibitory orders are issued under the relevant laws. The inference is further thus- no assumed unchecked and omnipotent powers, and secondly, the emphasis on the supposed temporal nature of AFSPA.

But, is it?

A lot has been discussed about AFSPA lately. However, there is an area which has been frequently neglected and which does seem to have a direct bearing on how the Government of Manipur is extending the AFSPA in recent times with nonchalant impunity, flouting all the established principles of law and justice. The area in question is thus- consequences on the normal criminal procedural laws and administration of procedural justice due to AFSPA. And this is where I want to focus pre-dominantly in this write-up.

To begin with or to fully appreciate (rather execrate) the “draconian” AFSPA, we need to properly understand some basic things. Because it is impertinent that we have to understand the difference between the extraordinary situations under AFSPA vis-à-vis ordinary circumstance under normal civil laws. Or to put it rather bluntly, life under AFSPA and life beyond AFSPA. It is also very necessary to understand the differences in normal criminal procedure laws, and the discrepancies with AFSPA; and the changes which should be (or which should have been) incorporated or discarded with.

But first things first:

Whether the armed forces of the union, including the central armed police forces (like the Assam Rifles), have got any powers irrespective of AFSPA, in dealing with a civilian setting?

Obviously, they have. The Code of Criminal Procedure provides a general overview of the situations when and where the armed forces can be utilized in aid of civil powers for dispersal of an unlawful assembly[i]. However, these are subject to-

  1. Existence of an unlawful assembly
  2. Such unlawful assembly cannot be dispersed by the civil powers (civil police and executive magistrates)
  3. If in the interest of public security, the dispersal is necessary
  4. Requisition from the highest rank of the Executive Magistrate of that area to the Officer in Command of any persons or group of persons belonging to the armed forces.
  5. In case when no executive magistrate cannot be contacted with, and if public safety is manifestly endangered, then any commissioned member or gazetted officer of the armed forces may cause dispersal of an unlawful assembly.
  6. In the situations provided above only, the armed forces have the power of arrest and use of minimal force required for the dispersal of such assembly. The force is limited to causing as little injury to the property or the person to be acted upon.[ii]

Hence, in ordinary circumstance under normal civil laws, the use of armed forces is limited to the provisions provided above. Existence of an unlawful assembly and threat to public security are both required in any given scenario. If there is unlawful assembly only, with no threat to public security, armed forces cannot be deployed. Correspondingly, even if there is threat to public security but no unlawful assembly, the armed forces cannot be deployed still.

Further the powers of arrest and using force is limited to dispersal of the unlawful assembly only. The use of force is also to be minimal which causes the very least injury to the property or the person.

This is life under the normal circumstances. Life beyond AFSPA. Like in Delhi, Mumbai, Kolkata, Lucknow etc., at any given point of time unless martial law/ emergency is declared.

To magnify this point further, we can take the example of Assam Rifles, which is now one of the objectives for the constitution of the armed forces called Assam Rifles. It states that the Assam Rifles shall be so constituted-

  1. For ensuring the security of borders of India;
  2. To carry out counter-insurgency operations in the specified areas; and
  3. To act in aid of civil authorities for the maintenance of law and order and the matters connected therewith.[iii]

Further, Rule 8 of the Assam Rifles Rules, 2010 illustrates the tasks and function of the Assam Rifles. They are:

  1. To safeguard the security of borders of India and promote sense of security among the people living in border areas;
  2. Prevent trans-border crimes, smuggling, unauthorized entry or exit from the territory of India and any other illegal activity;
  3. Provide security to sensitive installations, banks, persons of security risk;
  4. Restore and preserve order in any area in the event of disturbance therein.[iv]

Chapter VII of the Assam Rifles Regulations, 2016 also describes how the Assam Rifles Personnel are to be employed on duties in aid of civil authorities. Para No.126 of the Chapter provides that Assam Rifles personnel may be called upon to perform in aid of civil authorities the following duties-

  1. Maintenance of law and order
  2. Maintenance of essential services
  3. Assistance during natural calamities such as earthquakes and floods
  4. Any other type of assistance which may be needed by civil authorities

It is then provided that when the services of Assam Rifles are required by the civil authorities, the local Assam Rifles commander shall obtain approval from the Central Government through authorized channels promptly. The rest of the chapter deals with how written requisition from the civil authorities for maintenance of law and order should be acted upon immediately, appointment of liaison officer for effective communication, mode of dispersal of unlawful assembly etc.[v]

Nowhere in the Act, Rules or Regulations; there is mention on how to operate in disturbed areas under AFSPA. Perhaps, this is exactly how it is supposed to be- life beyond AFSPA.

Now, what AFSPA does is very simple. It provides the necessary legal fiction to bypass all these established norms and procedures of law, under the guise of a perceived dangerous or disturbed condition in a particular area. In addition to that, special and extraordinary powers are provided to the armed forces. Simply put, the license to kill is granted with the sole justification that the area is in such a dangerous and disturbed condition.

Of course, the people living in the disturbed areas have always held a different opinion of the armed forces operating with extraordinary powers, with gross violations of human rights and abuse of the right to life and basic dignity of a human being. However, the Hon’ble Supreme Court in 1997, while upholding the constitutionality of AFSPA, declared some parameters which are to act as restraints on the unbridled powers of the armed forces under AFSPA.

These are all well and fine.

But what is more important is the consequences upon the normal criminal procedural laws as a result of the imposition of AFSPA.

First of all, after AFSPA was first imposed for the entire state of Manipur in 1980, with the declaration of disturbed area under section 3, certain amendments were consequently made in the Code of Criminal Procedure for the state of Manipur. The first was made in 1982 and the second was made in 1983. The Code of Criminal Procedure (Manipur Amendment) Act, 1982 amended section 167 of the Code of Criminal Procedure (CrPC), which provides for, inter-alia, the maximum period for which an under-trial prisoner can be put in judicial custody, pending the submission of charge-sheet by the police. For crimes which are punishable with less than 10 years imprisonment, the said amendment increased the period from 60 days (normal circumstances) to 120 days (disturbed area of Manipur). For crimes which are punishable with 10 years’ imprisonment and above, the period was increased from 90 days to 180 days.[vi]  That is to say, the period of imprisonment pending submission of charge-sheet was doubled for the disturbed area of Manipur state. Then, the second Amending Act, i.e., The Code of Criminal Procedure (Manipur Amendment) Act, 1983, made an interesting change. This Act restricted the operability of the Code of Criminal Procedure (Manipur Amendment) Act, 1982 to such areas only where disturbed area has been declared under section 3 of the AFSPA.[vii]

The result is thus- the maximum period for which a person can be kept in jails (judicial custody) pending the completion of investigation by the police which has been increased to 120 and 180 days from 60 and 90 days, shall be effective only in those areas of Manipur where disturbed area has been declared under AFSPA. Without which, the original period of 60 and 90 days shall be reverted to.

Funnily enough, the Imphal Municipal Area (seven assembly constituencies in Imphal areas)[viii] is no longer a disturbed area under AFSPA since 12th August 2004. By logic, whoever is arrested under the jurisdiction of Imphal Municipal Area cannot be confined to judicial custody beyond 60 or 90 days under CrPC as an under-trial prisoner pending the submission of charge-sheet. The importance of this will be ascribed to later on. Of course, this is not applicable for persons arrested under UA (P) Act, which provides for a separate period in the Act itself.

Now, we can come to the controversial notifications of the Manipur Government, which have continuously declared retrospectively that the whole of Manipur, with the exception of the Imphal Municipal Area as “disturbed areas’ under AFSPA for the past two years[ix]. Furthermore, in direct contempt of the directions of the Supreme Court to periodically review the extension of disturbed area every six months, disturbed area is extended for one year each for the past two years. What is more bizarre is that in the most recent notification for the retrospective extension of disturbed area for one year, it is stated-

“… The Governor of Manipur hereby accords ex-post facto approval to declare the entire state of Manipur excluding the Imphal Municipal area as “Disturbed Area” for a period of 1 (one) year with retrospective effect from December 1, 2021”.

A plain reading of this seems to suggest that the Governor of Manipur has also given retrospective approval to the retrospective operation of disturbed area for one more year. Strange.

Anyways, for the elephant in the room-

Can there be retrospective declaration of disturbed area under AFSPA?

Many have cited that due to Article 20 (1) of the Constitution of India, which provides for protection against ex- post facto laws, such declaration cannot be made retrospectively. However, an argument can be made that the protection afforded under Article 20 (1) of the Constitution is limited to those criminal laws which prescribes for either punishment or penalty only.

“Article 20 (1) – No person shall be convicted of any offence except for the violation of any law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which may have been inflicted under the law in force at the time of the commission of the offence”.

There is no provision in AFSPA which provides for inflicting punishment or penalty on any person. As the name suggest, the Act is only concerned with providing special powers to armed forces in disturbed areas. AFSPA cannot be deemed to be a criminal law providing for punishment or penalties as such. At best, AFSPA can be termed as a procedural law, beyond the purview of Article 20 (1) of the Constitution.

So, can there be retrospective declaration of ‘disturbed area” under section 3 of AFSPA? The answer however is still in the negative though.

There is a golden maxim of Coke- “A new law ought to be prospective, not retrospective in operation”. Also, to cite three golden rules of interpretation of statutes:

  1. In the absence of anything in the enactment to show that there has to be retrospective operation, it cannot be construed to have retrospective operation.
  2. No retrospective operation is to be given to a statute so as to impair an existing right or obligation.
  3. If the language of the enactment is such that it is fairly capable of either interpretation, it ought to be construed as prospective only.

It is nowhere mentioned in AFSPA that there can be retrospective declaration of “disturbed area” under section 3 of the Act, and hence, retrospective operation of the AFSPA. Section 3 states that- “… the Governor of the State or the Administrator of the 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 the Union Territory to be a disturbed area”.[x]

There is no proviso clause following this, no rider citing that such declaration can be made to have retrospective operation. The language is plain and clear. Even if it is assumed that there may be alternate interpretation of the language, the established rules of interpretation directs that it shall and ought to be construed as prospective only.

Again, because of the above-mentioned Code of Criminal Procedure (Manipur Amendment) Act, 1982 and 1983, certain rights have been vested/ reverted to under-trial prisoners. Because of the said two amendments, AFSPA no longer operates in vacuum in Manipur. Under CrPC, an under-trial prisoner is entitled to an indefeasible right to bail once the maximum period of detention in judicial custody is expired and no charge-sheet is submitted. Hence, as the increased period of 120 and 180 days has been restricted to be applicable to areas declared as “disturbed area” under AFSPA, an arrested person accrues certain rights when disturbed area is not declared and AFSPA is no longer in force for that area. Retrospective declaration of “disturbed area” and consequently retrospective operation of AFSPA will no doubt take away these accrued rights, and hence it cannot be permitted. Further, AFSPA provides additional powers on the armed forces, even to the causing of death of a person. Hence, the grant of such powers can never be made retrospectively. It will become a very slippery slope if it is continued to be allowed and there will be no protection for us from myriad eventualities or future case scenarios. Take for example, a person may be gunned down at Khwairamband Keithel (which is not a disturbed area since 2004) by armed forces today; and tomorrow, a notification may be issued for retrospective declaration of disturbed area in Khwairamband Keithel since 2004.

Section 4 (a) of AFSPA[xi] provides that even a non-commissioned officer of an armed forces, in a disturbed area, may, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.

The Hon’ble Supreme Court, while delivering the judgement in The Naga Peoples Movement For Human Rights –vs- Union of India (1998) 2 SCC 109 in Para No. 51, has stated that-

“… The powers under Section 4(a) can be exercised only when (a) a prohibitory order of the nature specified in that clause is in force in the disturbed area; (b) the officer exercising those powers forms the opinion that it is necessary to take action in for maintenance of public order against the person/persons acting contravention of such prohibitory order; and (c) a due warning as the officer considers necessary is given before taking action. The laying down of these conditions gives an indication that while exercising the powers the officer shall use minimal force required for effective action against the person/ persons acting in contravention of the prohibitory order.”[xii]

Again in Para No. 79 (14), the Apex Court concluded that-

“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.”[xiii]

Hence, it is clear that the declaration of disturbed area under section 3 and the consequent imposition of AFSPA is not enough for the armed forces to resort to the powers provided under section 4 (a) of the Act unless a prohibitory order is in force, prohibiting either the assembly of five or more persons or the carrying of weapons in the disturbed area.

As to what these prohibitory orders are, the Apex Court, while contradicting the submissions made by the counsel of the petitioners, has clarified that it envisages two types of orders-

  1. Prohibitory orders under section 144 of the CrPC by the District Magistrate
  2. Prohibitory orders under the Arms Act or any other similar legislation restricting the carrying of weapons.

Under sections 24A and 24B of the Arms Act, 1959[xiv], the Central Government is empowered to, by notifying in the official gazette, prohibit the possession or carrying of notified arms in public places in certain areas where there is extensive disturbance of public peace and tranquillity or imminent danger of such disturbance in any area and that for the prevention of offences involving the use of arms in such area. Such notification is also to specify the limits of the area and the period for which the notification will be in force. Further, it is provided that such a period shall not exceed 90 days in the first instance. Although the Central Government may make such extension as required but not more than 90 days at every instance.

Further, by G.S.R. 508 E, dated 23rd June 1983 (Central Government Notifications regarding delegation of powers and functions) of the Ministry of Home Affairs, the Central Government, by exercising the powers conferred under section 43 (1) of the Arms Act, 1959, have delegated the powers and functions exercisable and performable by the Central Government under sections 24A and 24B of the said Act to the respective state governments. Hence, it is up to the Government of Manipur to make such notifications from time to time, as far as Manipur is concerned. Unless that has happened or the prohibitory order has been notified under section 144 CrPC, section 4(a) of AFSPA cannot be brought into play.

Section 4 (c) provides that any member of the armed forces can 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. Section 4 (d) further empowers any member to also 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.

These are perhaps some of the most archaic provisions of law, which really needs to be done away with at the earliest. The law on arrest and the powers of the police in effecting an arrest underwent a sea of change since 1958, but somehow the special provisions on arrest under this law has been left untouched. To begin with, the Act makes no distinction between man, woman and children. There are no exception clauses for women and children under AFSPA. Under normal criminal laws, certain restrictions are placed on the arrest of women- when and how they are to be arrested. All these are absent under the AFSPA.

Further, section 4 makes a mockery of the Juvenile Justice Act or the juvenile justice administration in general. Sweeping powers are given to the armed forces to almost do anything they like. The Dos and Don’ts which are supposed to act as restraints on the unbridled powers of the armed forces are silent on the protection available for children. The principles of best interest of the child, adopting child friendly approach, dignity of children, non-stigmatizing semantics etc., are all thrown out of the window. However, we can’t exactly blame the legislators of 1958 as in 1958, there was no special law governing children in conflict with laws in India.

But we have moved so much since 1958. Even for the law on arrest, the present provisions under CrPC no longer provides blanket powers on the police to arrest every person who has committed or is accused or suspected to have committed a cognizable offence; or against whom a reasonable complaint has been received. Now, certain limitations have been placed on the police to ensure that the powers of arrest are not misused or abused grossly. Even if the crime alleged is a cognizable offence, police no longer have the powers to arrest indiscriminately- unless it is a heinous crime or to give the reasons of arrest in all other cases. Further, special provision is given under CrPC, to send notice to the accused/ suspect to appear before the police station, in cases wherever arrest is not required. The Apex Court in the celebrated case of Arnesh Kumar –vs- State of Bihar[xv], has emphatically ordered that all those dealing with the arrest and the detention of persons are liable for strict sanctions unless the statutory provisions under the CrPC are not being complied with. The same principles have been re-iterated by the Apex Court during the covid pandemic also, to prevent widespread and unnecessary arrests and detention of persons.

This presents such a wretched picture for the disturbed areas where the AFSPA is in force. No, the question is never- are there any misuse or abuse of the powers of arrest by the armed forces happening now. The question is- how are we living in such a backward time and place, where we are stuck with archaic and non-sensible laws? We are still living with the Dos and Don’ts which provides, inter-alia

“2. Action during Operation.

(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention to law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.

(b) Arrest only those who have committed cognizable offence or who are about to commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence.

(c) Ensure that troops under command do not harass innocent people destroy property of the public or unnecessarily enter into the house/ dwelling of people not connected with any unlawful activities.”[xvi]

Swallowing this “law” along with the new changes in information technology laws, the new frontiers of social media and law, and even while deciphering the right to privacy in the ‘metaverse’ is very hard. The lump in the throat is excruciating. Take for example, the whole foundation of right to privacy is in the basic dignity of an individual and the right to self-determination of a person. Where do this valued right stand in the face of these Dos and Don’ts of the Army is a question which doesn’t have an answer as of now.

Despite the gloom however, can we imagine a scenario where there is life beyond AFSPA in Manipur? Certainly why not. Take in point, the Assam Rifles Act, 2006, Rules, 2010 and Regulations, 2016 does not mention the word AFSPA. But Assam Rifles are one of the major armed forces operating in Manipur, especially in preventing the cross-border drugs and narcotics smuggling in Manipur. Most recently, on 8th December, 2021 the Ministry of Finance, Government of India issued a notification under sections 42 (1) and 67 of the ND & PS Act, 1985, empowering the officers of Assam Rifles, from the rank of Sub-Inspector and above to exercise such powers and perform such duties under section 42 and 67 of the Act. This means that they are now empowered to enter, search, seize and arrest without warrant if he has reason to believe that any narcotic drugs or psychotropic substance in respect of which an offence under ND & PS Act has been committed; and to call for information from any person, requiring any person to produce or deliver any document or thing or to examine any person acquainted with the facts and circumstances in relation to any alleged offence under this Act.

This means that the Assam Rifles have come under the apparatus of the ND & PS Act, and are now subject to it. At the same time, it is ample proof that the Assam Rifles can operate without AFSPA, or rather beyond AFSPA.

In conclusion however, the stirring words of the discussants in the popular local channels of Manipur can be recollected. Some of them seem to be of the opinion that there is no need for creating ‘mass hysteria’ over the extension of AFSPA, retrospectively or otherwise. Because, nothing has happened in the meantime. There has been no reports of abuse or misuse of powers by the armed forces during the intervening period. Well, for these people, they certainly deserve to live under AFSPA… But alone, in Timbaktoo…

Again, some have correctly inferred that retrospective extension is bad in law. But seems to be okay if that order is corrected and prospective extension of disturbed area is made. It is made to appear that no harm will be caused by prospective extension. But it is incorrect still, in my humblest opinion. AFSPA has outlived its validity. The harm is not only about human rights abuses. The harm is the harm caused to the rule of law, as recent notifications of the Manipur Government has demonstrated. Any extension is bad. There should be no extension of “disturbed area” anymore, anywhere. Never again. Never more. That should be our opinion. The one and the only. Period.

 

Notes

[i] Chapter  X of The Code of Criminal Procedure, 1973- Maintenance of Public Order and Tranquilities (A. Unlawful Assemblies)

[ii] Ibid

[iii] The Assam Rifles Act, 2006 (Act No. 47 of 2006)

[iv] The Assam Rifles Rules, 2010; notified by the Ministry of Home Affairs, G.S.R. 701(E) dated 25.08.2010

[v] Chapter VII of the Assam Rifles Regulations, 2016, issued by the Ministry of Home Affairs, dated November 18, 2016 (Employment of Assam Rifles Personnel on Duties In Aid of Civil Authorities)

[vi] S.3 of the Code of Criminal Procedure (Manipur Amendment) Act, 1982 (Manipur Act No.3 of 1983)

[vii] S. 1(2) of the Code of Criminal Procedure (Manipur Amendment) Act, 1983 (Manipur Act No.3 of 1984):

“In the Code of Criminal Procedure (Manipur Amendment) Act, 1982 (Manipur Act No. 3 of 1983), hereinafter referred to as the Principal Act, for the sub-section 3 of section 1, the following shall be substituted namely-

“3. It shall come into force, on its publication in the official gazette in such areas of Manipur and shall remain in force during such period as the notification issued under section 3 of the Armed Forces (Special Powers) Act, 1958, declaring that area to be disturbed area shall be in operation…”

[viii] The original notification of 2004 had lifted AFSPA from the seven assembly constituencies of Wangkhei, Yaiskul, Thangmeiband, Sagolband, Uripok, Singjamei and Keishamthong. However, in the later years, the removal of AFSPA was limited to the Imphal Municipal Area.

[ix] The notification regarding retrospective extension of disturbed area for one year from 01.12.2020 to 30.11.2021 was made known to the general public only on 29.12.2020. Similarly, for the retrospective extension from 01.12.2021 to 30.11.2022, it was made known on 10.01.2022.

[x] The Armed Forces (Special Powers) Act, 1958 (Act No. 28 of 1958)

[xi] Ibid

[xii] The Naga Peoples Movement For Human Rights –vs- Union of India (1998) 2 SCC 109

[xiii] Ibid

[xiv] The Arms Act, 1959 (Act No. 54 of 1959)

[xv] Arnesh Kumar –vs- State of Bihar (2014) 8 SCC 273

[xvi] The Naga Peoples Movement For Human Rights –vs- Union of India (1998) 2 SCC 109

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