By Chandan Mohanty, KIIT Law School, KIIT University, Bhubaneswar.
On 2nd November 2000, in Malcom, a town in Imphal Valley of Manipur, ten civilians were shot and killed while waiting at a bus stop, by the Assam Rifles, one of the Indian Paramilitary forces operating in the state. This incident became famous as the ‘Malcom Massacre’ which prompted Irom Sharmila to start her hunger strike, that continues till this day against the provisions of the Armed Forces Special Powers Act (hereinafter AFSPA).
The troops of the Assam Rifles claimed that they were exchanging fire with the extremists after its convoy came under attack. However, the Manipur High Court observed that there was no evidence of any such attack and declared such attack as a fake encounter. The Court later ordered a compensation of Rs 5 lakh for each of the families of the deceased who were killed in the Malom Massacre.
After this incident, Irom Sharmila started her hunger strike and raised questions about the constitutional validity of AFSPA. The provisions of AFSPA also attracted Human Rights, Article 21 of Indian Constitution and legality of the excessive power granted under AFSPA.
In this write up we will discuss about the struggle of Irom Sharmila and the validity of AFSPA.
Struggle of Irom Sharmila
Irom Chanu Sharmila, also known as the “Iron Lady of Manipur”, is a civil rights activist, political activist and a poet. After the famous mass killing in Malom, commonly known as Malom Massacre, she started her hunger strike, which is still ongoing, against the AFSPA.
She has devoted herself to the cause of human rights in a way that is hard to conceive. She has refused food and water for more than 500 weeks. As she refused to have food and water, she was charged for making an attempt to commit suicide under section 309 of Indian Penal Code and was arrested repeatedly as the said section provides for a punishment amounting to imprisonment for a team which may extend to one year or fine or both.
Her sacrifice has focused on a struggle that is barely glimpsed in the rest of India. A decades long insurgency by up to 50 armed groups and the subsequent response by the government which has send in thousands of troops, has created a dark, deadly situation in Manipur where the role of gun holds sway.
Sharmila is demanding that the government overturns the AFSPA which makes it impossible to hold any soldier accountable for his actions.
On International Women’s Day, 2014 she was voted the top woman icon of India by MSN poll. Apart from this, Sharmila has been given a number of domestic and international honours for her campaign. Recently, she announced that she would no longer accept any awards while her fast continued.
Armed Forces Special Powers Act
The objective of this Act was to enforce special power on the armed forces in disturbed areas[1] so that the situation in such places could be controlled. Special powers were enforced under this act because there is a need of prompt action in such states[2]. And if prompt action is not taken, then the security of these places will be compromised. Therefore, to maintain peace and security in such disturbed areas, the legislature has enforced special power on its armed forces.
Section 4 of the act provides power to the armed forces. According to this section, any commissioned officers, warrant officers, non commissioned officers or any other person of equivalent rank in the armed forces can fire upon or otherwise use force, even to the causing of death against any person after giving such due warning as he may consider necessary. Under this section such officer can also make an arrest any person without warrant, who has committed any cognizable offence or against whom a reasonable suspicion exists.
Section 6 of the Act provides that no prosecution, suit or legal proceeding shall be instituted against such officer. This provision provides such officers a shield which will protect them from any kind of misuse of power.
This provision protects such an officer from all legal proceedings except with the previous sanction of the central government. Even the warning he delivers will be such as he may consider necessary. The test is subjective. No objective test, as it is necessary, is prescribed.
Conclusion
The Armed Force (Special Powers) Act, 1955, is an important legislation and was enacted with an objective to control the insurgent groups of certain disturbed areas. This act enforces certain special power on the armed forces so that quick actions can be taken to maintain the peace and security of the state.
Prompt actions cannot be taken if the officers of these areas follow the procedure mentioned in Code of Criminal Procedure (hereinafter Cr. P. C). The provisions mentioned in Cr. P. C are applicable under normal circumstances. But this Act is meant for places or states where the situation is not normal. Since the situation of these places or states is not normal, special powers are enforced on the armed forces so that the situation can be properly handled.
On 8 December 2004, a Review Committee was formed to review the Armed Forces Special Powers Act (AFSPA), 1958.
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.
Also in the case of Naga People’s Moment of Human Rights v. Union of India[3] the Supreme Court held that 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. The Court also states that the Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution.
However, in certain cases the Act has enforced excess power on the armed forces. The Section 6 of the Act provides an absolute immunity to the officers against any kind of legal proceedings. This power is being misused and innocents are killed in fake encounter. Many cases of girls and women being raped on the gun point have come up. But no action is taken against such officer.
The officer has the power to use force and kill any person if he has any reasonable suspicion. This power, as provided under section 4 of AFSPA is also unfair. Killing a person on mere suspicion is always against the Natural Law and cannot be termed as valid or legal in any situation.
Since Maneka Gandhi’s case[4] the Court has consistently ruled that the procedure prescribed by law must be fair and reasonable and the law, in turn, must conform to the other fundamental rights, especially those embodied in Article 19(1) concerning all the aspects of civil liberties; that personal liberty means more than mere absence of physical restraint and life means more than mere existence.
Therefore in my opinion a Review Committee should be formed and the present Act should be reviewed and the unreasonable powers provided under this act should be removed so as to provide justice to the innocents.
[1] Preamble of Armed Force (Special Powers) Act, 1955.
[2] State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland
and Tripura.
[3] 1998 2 SCC 109.
[4] Maneka Gandhi v. Union of India, AIR 1978 597.