THE LEGAL AND CONSTITUTIONAL CONFLICTS BETWEEN THE ARMED FORCES (SPECIAL POWERS) ACT AND THE PROTECTION OF HUMAN RIGHTS ACT 

 ABSTRACT

The paper attempts to scrutinize the conventional implementation of humanitarian law to the armed forces. It provides an exhaustive review of the provisions enshrined in the Protection of Human Rights Act and Armed Forces (Special Powers) Act in context of procedures concerning allegations of human rights violation against the armed forces. The paper further provides insight into the human rights implications and the judicial interpretations concerning the said excess power conferred on armed forces by the media and human rights philanthropists. The paper concludes with recommendations and suggestions for aligning the provisions with the international human rights law.

Keywords – NHRC, AFSPA, armed forces, draconian law, human rights

1. INTRODUCTION

The two brutal world wars had glued the attention of the international arena on the rights of the man, now conceptualized as “Human Rights”. The term has its genesis in the message of Franklin Roosevelt during his address to the Congress in January 1941. The term was emphasized in the Atlantic Charter followed by Declaration of the United Nations, ultimately taking the formula of “Universal Declaration of Human Rights” adopted by the General Assembly on 10^th December 1948. The Indian landscape witnessed a similar trajectory. The Quit India movement coupled with the possible threat of invasion by the Japanese forces on the eve of independence forced the then British government to enact the Armed Forces (Special Powers) Ordinance, 1942 empowering the authorities to carry out arrest, forceful detention practices and confiscation of property. The ordinance was superseded by Armed Forces (Special Powers) Act, 1958, for addressing the insurgency in Nagaland by laying a legal framework for the armed forces for combating internal disturbances and violent uprisings. 

The dark period of the emergency (1975–77) accentuated the issues of bulk arrests of opposition leaders, targeted detentions, forced disappearances, large-scale forced evictions and mass sterilization program leaving a blotch on the civil and associated liberties. The United Nations Charter embodies a function of promotion and encouragement of respect for observance and protection of human rights. The setting up of a national institution for raising awareness about human rights and probing investigation into alleged violations is one of the most effective means for achieving the aforementioned objective. The General Assembly in 1966 enacted a resolution with the purview to assess the proposal regarding establishment of a national commission on human rights for observance of the provisions enshrined in the Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. The reprimands from foreign governments in context of political turmoil and violence in areas of Punjab, North Eastern front and Jammu and Kashmir expedited the lingering task establishing the National Human Rights Commission. The Protection of Human Rights Act enacted formerly as an ordinance was amended and passed by both the houses of the Parliament with assent of President on January 8, 1994. Section 3 of the act lays down the constitution of the National Human Rights Commission. 

2. OBJECTIVES OF THE RESEARCH

This research paper entails an elaborated examination of the legal frameworks laid in the Protection of Human Rights Act (PHRA) and the Armed Forces (Special Powers) Act (AFSPA), with primary consideration on the procedures for inquiry, investigation, and redress mechanisms established under these statutes. The paper further provides an analysis of pertinent case laws to purview the judicial interpretations and applications of these legal provisions. The final segment presents recommendations to reconcile and harmonize AFSPA’s provisions with international human rights standards.

3. METHODOLOGY

The research study employs the doctrinal method of research. The methods is chosen for its merits of providing detailed and extensive research on relevant legal frameworks and critical examination of relevant case laws for comprehending practical implications of laws and trends in judicial reasoning. Articles, Bare acts and case laws were reviewed and inferred upon to draw conclusions.

4. LITERATURE REVIEW

The seminal work titled “Human Rights by Dr. H.O. Aggarwal, former professor at Faculty of Law, University of Allahabad” provides the foundation for the research proposal. Chapter XIII of the book elucidates the Human Rights Commissions in India. The chapters provides crucial inputs to the inquiry and investigation procedure followed by the National Human Rights Commission. The chapter incorporates at length the complaints of violation of human rights by members of the armed forces and enlists recommendations of the commission.

The paper titled “Armed Forces Special Powers Act 1958 (AFSPA) And Human Rights Violations: A Critical Analysis by Mohd Aqib Aslam a Ph. D Research Scholar, Department of Law University of Jammu, Jammu and Kashmir”, India provides a elaborated analysis of the legal and practical implications of AFSPA provisions. The paper describes the implementation of the act in the tension prone areas of Nagaland, Jammu and Kashmir – the extent of discretionary powers of the Armed Forces and their impact on civilian populations. It put forwards relevant case laws illustrating the challenges and criticisms associated with AFSPA’s implementation.

The paper titled “The Draconian Armed Forces (Special Powers) Act, 1958 – Urgency of Review by Caesar Roy” emphasizes the disparity between AFSPA’s security objectives and the principles of justice and human rights enshrined in both domestic and international law. It advocates an urgency to reform the provisions of the act along with recommendations focused on enhancing oversight mechanisms, ensuring judicial accountability, and realigning the Act with global human rights standards. It furthermore reinforces the necessity for legislative and policy reforms.

5. PROVISIONS ENSHRINED IN THE PROTECTION OF HUMAN RIGHTS ACT 1994
   1.  OBJECTIVES OF THE ACT

The act was primarily enacted to provide a robust and definitive framework for the protection of human rights which people formerly identified as fundamental rights enforceable by the Judiciary. Human rights are those supernatural claims which every human is entitled to for the simple virtue of being a human. Thus human rights have universal application. Whereas the fundamental rights are understood as a list of guarantees enshrined in a nation’s constitution that are designed to protect the basic freedoms and liberties of individuals. Thus the act aims to promote the term human rights in its widest sense. The act further provides for the constitution of a National Human Rights Commission, along with various State Human Rights Commissions in States for effective performance of functions pertaining to implementation of human rights. The act simultaneously provides for the establishment of Human Rights Courts in each district for better protection of human rights and for matters connected therewith or incidental thereto. 

2. DEFINITIONS

Section 2 clause (d) of the act attempts to define the expression “human rights” as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. 

Section 2 (1) (a) defines the expression  “armed forces” as the naval, military and air forces and includes other armed forces of the Union (CRPF, CISF, ITBP, BSF, etc.)

3. CONSTITUTION

Section 3 of the act mandates the establishment of the National Human Rights Commission consisting of a chairperson; current or former Judge of the Supreme Court; former Chief Justice of a High Court along with two members with expertise or practical experience in human rights matters. 

4. FUNCTIONING & POWERS OF THE COMMISSION

The Commission does not consider all complaints it receives. Section 10 of the act empowers the commission to regulate its own procedures. The commission on 1 March 1991 formulated 19 guidelines as regards to define its procedure. Regulation No. 8 was amended in 1996 adding a new section 40B  sub section 3 hereby requiring the commission to lay down proposed regulations before both the houses of the Parliament for approval. Regulation No. 8 Para 1 enlists categories of violations which will not be entertained by the commission: events that occurred more than one year prior; are sub-judice; are vague in nature or are anonymous; are frivolous or outside its jurisdiction.

Section 12 of the act provides that the commission is entrusted to conduct inquiries into human rights violations or negligence by public servants, intervene in court cases involving human rights issues, and inspect state-run institutions to evaluate conditions of detainees. The Commission further reviews the constitutional and legal safeguards for human rights and examines international human rights treaties for effective implementation. It promotes research in the field of human rights and aims towards raising human rights awareness through various media.  

Section 13 of the act grants the commission the same powers as a civil court when investigating a complaint, including:

1. summon and enforce the attendance of any person and examine him; 
2. require the discovery and production of any document; and 
3. requisition any public record or copy thereof from any office

5.  MATTERS CONCERNING VIOLATIONS OF HUMAN RIGHTS BY MEMBERS OF THE ARMED FORCES

Section 19 of the act exempts the armed forces defined in section 2 (a) from the purview of the commission while dealing with alleged human rights violations. The section authorizes the commission to either initiate action on its own or upon receiving a petition to request a report from the central government. Subsequently, it may choose not to pursue the complaints or, if appropriate, make recommendations to the government. The central government is required to inform the commission of the actions taken on these recommendations within three months, or within an extended timeframe as permitted by the commission. The commission will then publish its report along with its recommendations to the central government and the government’s response to those recommendations.

6.  PROVISIONS ENSHRINED UNDER THE ARMED FORCES SPECIAL PROTECTION ACT 1958

The act has it’s root from an ordinance passed by the then Viceroy of India, Lord Linlithgow when an emergency all over India was declared amidst the backdrop of Quit India movement and the possible threat of invasion by Japanese army. The legislation framework was re-enacted by the governmental authorities to address the insurgencies of the Naga National Council against the armed forces but with an array of powers that may infringe the fundamental rights of the citizens – power to kill a person on pretext of perceived threat to security of public order, or carrying arms and ammunitions, search in places where a militant occupation or usage was suspected. The junior commissioned officers were vested with the same powers. The act received president assent despite perceived infringement and is applicable across all North Eastern States and Union Territories. 

Section 3 of the act grants the Governor of the respective state or the administrator of the Union Territory the authority to declare an area as a “disturbed area” if they believe that all or part of the state or Union Territory is in a disturbed or dangerous state, making the use of armed forces to assist civil authorities necessary. This declaration is made through a notification in the official gazette of India.

Section 4 entails the powers attributed to a commissioned officer, warrant officer, non-commissioned officer, or equivalent rank in the armed forces:

1. To use fire or force, including lethal force, against an individual who is violating the law or order currently in effect, even after prior warnings prohibiting the assembly of five or more people or the carrying of weapons, ammunition, or explosives for the maintenance of law and order in a disturbed area.
2. To destroy arms dumps, fortified positions, shelters used for armed attacks, training camps for armed volunteers, or hide-outs of armed gangs or wanted absconders,
3. To carry out arrests for persons on the grounds of a reasonable suspicion of committing a cognizable offence without warrant,
4. To enter and search any premises without a warrant for the purpose of making an arrest or recovering any person who is wrongfully restrained, as well as any property reasonably suspected to be stolen, or arms, ammunition, or explosive substances believed to be kept unlawfully.

Section 5 of the act mandates the armed forces to handover any arrested or detained individual to the officer in command of nearest police station without necessary delay.

Section 6 of the act provides that no legal action, prosecution, suit, or other proceedings, shall be initiated against any person for actions taken under this Act unless without the prior permission of the Central Government.

7. HUMAN RIGHTS IMPLICATIONS

The provisions outlined, especially the exemptions afforded to the armed services under both the Armed Forces (Special Powers) Act (AFSPA) and the Protection of Human Rights Act (PHRA), have been a focal point of scrutiny whenever counter-terrorism operations are undertaken by the Indian Armed Forces in the states of Jammu and Kashmir and the North-Eastern portion of the country . The armed forces are charged with the responsibility of resisting terrorism and militant violence – actions which severely infringe upon the human rights of civilians concomitantly face scrutiny for alleged human rights violations in their operations. 

Such scrutiny at times overshadows the grim situations under which the armed forces operate – comprehending the difference between combatants and non-combatants in volatile environments. The principles of justice and good faith done the responsibility upon the state actors to abide with the standards of international humanitarian law yet the situations where they acts or omissions aimed at natural security may take averse paths be dealt with sincerity and more consideration. 

The Indian Armed Forces welcomed the Protection of Human Rights Act, 1993 and gladly instituted their Human Rights Cell in March 1993, 6 months preceding to the formation of the National Human Rights Commission in India as harbingers of safeguarding human rights violation. The appropriate Decorum of Conduct for all ranks operating against armed insurgents and terrorists are duly reviewed and acknowledged by the judicial system and the United Nations.

Every situation encountered by the forces is marked by the interplay of three major factors- the terrain, weaponry and its usage and the support the terrorists gain from the populace. For combating the insurgencies, the armed forces are inevitably compelled to use force, albeit minimally. In such situations, the anger from affected populace is understandable yet it is misplaced which may manifest as accusations of human rights transgression against the forces. Indian armed forces is an all India cadre committed in upholding the fundamental rights of its citizens without aligning itself to any political identity. Yet the following might surface reasons for possible human rights violations: 

1. A soldier is trained well for conventional warfare – bold and aggressive actions to shoot to kill are hallmarks of their training. The military training disciplines the soldiers to carry out his duties efficiently and impartially. 
2. At times, the causalities to their own troops might stir an overreaction from the forces.
3. Terrorists tend to fire first and then take refuge among local civilians. This forces the security forces to return fire, which might unintentionally injure or harm the local people.
4. JUDICIAL INTERPRETATIONS

The key players in any state administration i.e. bureaucracy, politicians and judiciary confront tremendous pressure during insurgencies. Yet the judiciary has always acted in the best interest of justice.

In Indrajit Barua v. The State of Assam and Anr. The Supreme Court ruling upholded the states responsibility to uphold the protection and rights of its citizens. It was ruled that that no citizen will be denied of their right to life under article 21 and other liberties even in disturbed areas where AFSPA was enacted. 

In another case titled Shopian rape murder Case the armed forces deployed nearby were accused of rape and murder of two girls who were found dead near the orchades.  The investigation is purportedly said to be compromised whereby the details of injuries on the private part of girls were omitted to wade off the blots of rape allegations on the armed forces.

9. FIGURING A SOLUTION: RECOMMENDATIONS OF THE NATIONAL HUMAN RIGHTS COMMISSION  

It is generally recognized that members of the armed forces and paramilitary forces are not above the law. The Central Governments put forth the opinion that the prevailing system of redress followed in the forces concerning human rights violations are working in a satisfactory manner, hence there is no need to make any amends. The commission founds the section 19 arbitrary and the interpretation of the term “armed forces” in the statute to be excessively wide. 

The commission in its reports to the Central Government have given the following recommendations to be taken into consideration:

1. The commission recommended for providing more sovereignty to the commission by empowering it to grant monetary and other respite to the victims or his/her family members.
2. Another recommendation was to exclude the paramilitary forces from the definition of the expression “armed forces”.
3. Ratifications to the Convention Against Torture and other forms of cruel, Inhumane and degrading Treatment or Punishment adopted by the United Nations in December 1984.
4. To inculcate a practice of regular dialogue between members of security forces, human right philanthropists and policy framers to deal with insurgencies efficiently.
5. AMENDMENTS IN ARMED FORCES (SPECIAL PROTECTION) ACT 1958

1. The Section 3 should be modified to provide a more comprehensive definition of a disturbed area rather than only encompassing a subjective interpretation ensuring there is no ambiguity in the expression of the term.  Steps must be taken to make the state governments an equal stakeholder in the declaring any area as a disturbed area as central government. Moreover the pronouncement should prevail over for a reasonable time period afterwards the pronouncement should be subjected to review by the legislature.
2. The term least possible delay expressed in the section 5 of the act should be defined more precisely. The accused should be turned over to the local police within the time limit of 24 hours of arrest.
3. Section 197 of the Criminal Procedure Code directs prior permission from the State or Central Government for prosecuting public officials. The Section 6 of the act supersedes the abovementioned section of the code. Hence the section should be either amended or repealed.
4. All security legislations must adhere strictly to international customary law, which upholds fundamental human rights even during extreme conflict situations.

11. CONCLUSION

The impression of development of human rights is developing in India. Preservation of human rights in anti-terrorism operations is a daunting task. The Indian armed forces have performed commendably, balancing professionalism with respect for human rights. The portrayal of the Indian armed forces as ‘monstrous institution of the state’ inflicting widespread human rights violations by large scale media coverage raises questions over a fair assessment of the perspective.  

The ambiguities surrounding the human rights conduct of soldiers arise from a limited understanding of terrorism and insurgencies, the challenges faced in addressing these issues, and the human rights violations that can occur during such operations. The media hailed as the fourth pillar of democracy is a powerful force in influencing public opinion. The media especially in such situations, serves as terrorist’s friend by serving as their independent source of communication with the authorities.

Furthermore human rights advocates and watchdogs should equally focus on condemning the violations by the terrorists to provide a balanced perspective. The redundant emphasis on alleged human rights violations at the hands of armed forces, with half-baked knowledge of the nature of their operations and the associated repercussions, undermines the comprehensive understanding required for fair assessment. Holding the armed forces accountable for genuine violations is pivotal, yet it is equally vital to ensure that their efforts to protect the nation are not unjustly compromised by selective reporting and criticism.

12.  REFERENCES

1. Dr. H.O. Aggarwal, Human Rights, 2023
2. Protection of Human Rights Act, 1993
3. Armed Forces (Special Protection) Act, 1958
4. Aqib Aslam, Armed Forces Special Powers Act 1958 (Afspa) And Human Rights Violations: A Critical Analysis, International Journal Of Multidisciplinary Educational Research;10 2(3), 2021 February
5. https://www.projectstatecraft.org/post/human-rights-and-indian-armed-forces#:~:text=The%20Indian%20Armed%20Forces%20took,Human%20Rights%20Commission%20in%20India.

SUBMITTED BY: DIYA PABBI

2^ND YEAR LAW STUDENT @ ASIAN LAW COLLEGE, NOIDA