Why the Government cannot withdraw AFSPA from Jammu & Kashmir?

Why the Government cannot withdraw AFSPA from Jammu & Kashmir?

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There are many misconceptions about AFSPA. Without understanding what AFSPA is, people start commenting adversely on it. 

Firstly, please note that we should first take the decision whether or not to deploy army in disturbed areas of Jammu & Kashmir. If the answer to this question is “yes”, then there is no question of withdrawing AFSPA from J&K. This is so because AFSPA is very necessary for the army to function properly if it has to act effectively and independently of the police forces in those disturbed areas. Let me elaborate to explain the nuances.

As is well known, “public order” is primarily a State subject as per Entry 1 of the State List in the Seventh Schedule to the Constitution of India.[1] Likewise, “Police” is also a State subject as Entry 2 in the said State List, which implies that investigation of various offences is basically to be conducted by the state agencies. Thus, maintenance of public order (including law & order) is basically the duty of the State Police.

The Central Government deploys the Armed Forces personnel only in aid of the Law & Order machinery of the State, as permissible under Entry 2A of the Union List in the said Seventh Schedule to the Constitution and also under Article 355 of the Constitution. It is pertinent to point out that Article 355 of the Constitution enjoins 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 the Constitution.

Now, State Police has its powers, to deal with various law & order situations, laid down in the Criminal Procedure Code (Cr.P.C.) and other enactments.[2]  Let me briefly state them:

(1) Sections 129 to 132 of the Criminal Procedure Code are covered in the Chapter “Maintenance of Public Order and Tranquillity”. These sections allow use of force, including use of armed forces, to disperse unlawful assemblies if the conditions mentioned in the sections are satisfied. In extreme situations, under justifiable conditions, use of such force may even lead to causing of death of a person while dispersing such unlawful assembly.

(2) Section 46 of the Criminal Procedure Code, 1973, lays down that if a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer (or other person making the arrest) may use all means necessary to effect the arrest. In certain extreme situations, it may be justifiable even if death of the person being arrested is caused if the conditions mentioned in this section are satisfied and if the person being arrested is accused of an offence punishable with death or with imprisonment for life.

(3) Like any other citizen, police officers also have the right of private defence, as laid down in the Indian Penal Code, as per which in certain extreme situations, even death in the exercise of right of private defence may also be justified. It is noteworthy that most of the so-called police encounters are covered under this right.

(4) There are provisions like Sections 144 and 144-A of the Criminal Procedure Code, which allow urgent measures to be taken by Executive Magistrates (in cities, this power may also be given to senior police officers) to prohibit or control urgent cases of public nuisance and apprehended danger. Curfew and prohibition of 5 or more persons assembling at a place are generally imposed under Section 144, while Section 144-A allows prohibition of carrying of arms in processions, etc. These provisions help police in preventing law & order situations.

Now, these powers are mostly available with police directly or through the Executive Magistrates.

However, when army or other armed forces of the Union are deployed in a State (such as in J&K), the army personnel do not have most of such powers. So, how will they act then? One option is that army personnel should act only along with police officers or with executive magistrates. But, that is not possible always. Moreover, this will effectively make the army personnel powerless in dealing with public order situation, which is the main objective of their deployment. There are many-many situations where the army personnel would be required to act independently of the state police and executive magistracy.

That is why I said at the very outset that firstly we should take a decision whether or not we should deploy army to deal with internal security problems. Now, if we take a decision to deploy army to deal with internal security problems, such as in J&K, naturally, then we must at least give some basic legal powers to the army personnel to independently and effectively deal with the security threat. These powers should be broadly speaking equivalent to at least the powers given to the police officers. In fact, the powers given to army personnel should be more than the police officers. Why? Because the very fact that army has been deployed, means that the internal security problem is so serious that police is not able to deal with it and army is required to be deployed. So, you must give reasonable powers to the army officers.

And, here comes AFSPA. This gives these bare minimum powers to army officers to deal with serious security threats when they are deployed in disturbed areas.

For Jammu & Kashmir, there is a separate AFSPA. It is called the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.[3]

Section 4 of the AFSPA gives the following powers to the army officers in a disturbed area of J&K (which must first have been declared as disturbed area by Governor or the Central Government under Section 3), which are more or less similar to the powers given to he State Police, as I mentioned earlier:

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) 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;

(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 utilised as a hide-out by armed gangs or absconders wanted for any offence;

(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;

(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, and seize any such property, arms, ammunition or explosive substances;

(e) stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any person who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.”

It is pertinent to mention that Section 6 of AFSPA lays down that any person arrested and taken into custody under AFSPA and every property, arms, ammunition or explosive substance or any vehicle or vessel seized under AFSPA, shall be made over to the officer-in-charge of the nearest police station with the least possible delay, etc. etc.

Therefore, what AFSPA basically provides is certain basic police powers to army officers who are performing the duties of internal security. How can you expect that army officers can perform such duties even without any powers similar to police?

Now, to those who unnecessarily criticize that AFSPA gives extraordinary powers to army officers, let me just point out that it is absolutely incorrect to state that a person can be killed without any reason by the armed forces. In fact, Section 4 of AFSPA lays down several safeguards and pre-requisite conditions before a person can be killed by armed forces, as briefly mentioned below:

(a) There has first to be a declaration of disturbed area by a high level authority as mentioned in the Act (Governor or Central Government).

(b) The concerned officer has to be of the opinion that it is necessary to do for the maintenance of public order.

(c) He has to give such due warning as he may consider necessary.

(d) The person against whom action is being taken by armed forces must be “acting in contravention of any law or order for the time being in force in the disturbed area”.

(e) Such law or order must relate to 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.

(f) Moreover, AFSPA clearly provides for prosecution of personnel of armed forces for any wrong action taken by them. Though sanction of the concerned authority is required for such prosecution under Section 7 of AFSPA, the fact remains that prosecution is specifically provided for wrong actions of the personnel. It is noteworthy that the provision of sanction is applicable even to a supposedly corrupt public servant under Section 19 of the Prevention of Corruption Act, 1988. Therefore, there is nothing wrong in providing for the safeguard of requirement of a sanction for prosecution in case of armed forces personnel who are risking their lives while performing the counter-insurgency operations. In any case, it is only a safeguard to protect the right person, and not a shield for a person who has done wrong. In deserving cases, sanction for prosecution is accorded by the competent authority to punish the guilty person of an alleged wrong doing. It is pertinent to point out that a similar provision exists for requiring sanction for prosecution for certain categories of police officers also (and also for other public servants), in the form of Section 197 of the Criminal Procedure Code for some act done (or purported to be done) in the discharge of official duties.

It is, thus, absolutely wrong to suggest that armed forces personnel have been given excessive powers, including the power to kill any person without any reason. There are sufficient safeguards and pre-conditions in AFSPA.

In fact, I may point out that in the case of Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109 : AIR 1998 SC 431, a Constitution bench of the Supreme Court has upheld the constitutional validity of AFSPA.

It is also germane to point out that the order (of Governor or the Central Government) declaring certain areas as disturbed areas under AFSPA is required to be periodically reviewed (every six months, if I remember correctly) after assessing the ground situation. If the ground situation improves, then declaration of an area being a disturbed area may be discontinued, which would mean that AFSPA provisions would no more be applicable to such area.

But, for that to happen, the ground situation has to improve. Let the people try to help improve the ground situation in J&K. Let terrorism be completely rooted out from J&K. Let militancy be rooted out from there. AFSPA will automatically be withdrawn then. In fact, when the ground situation improves, there would be no need for deployment of armed forces then as the local police would be sufficient to control the public order.

But, if we need to deploy army in J&K due to continued terrorist activities, we must have AFSPA there. I am a firm believer in this. Our army jawans and officers are sacrificing their lives for the nation. How can you expect them to perform their duties in internal security domain, if you don’t give them even some basic powers that police officers have while dealing with smaller law & problems?

Therefore, it is ridiculous to suggest that AFSPA should be withdrawn or diluted even though army is deployed in J&K and even though terrorist activities continue unabated with the support of external powers.

[1] https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

[2] http://legislative.gov.in/sites/default/files/A1974-2.pdf

[3] http://legislative.gov.in/sites/default/files/A1990-21.pdf

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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