Armed Forces Special Power Act

A Draconian Law?

Dr. U C Jha

• Editorial: VIJ Books (India) Pty Ltd
• Año: 2015
• ISBN:
  9789384464615
• Edición: 1
• Categoría: Derecho
• Categoría: Derecho militar

The Armed Forces Special Powers Act (AFSPA) has become one of the most controversial laws, both in India and the world. A few NGOs and human rights activists have described it as draconian, alleging that it gives the armed forces unrestricted power to 'arrest' without warrant, 'destroy property' and 'shoot to kill', besides providing them with complete immunity. The loud and continuous clamour against the Act has drawn the attention of various international organizations. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, has recently called for the repeal of the law, stating: "AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped."On the other hand, the armed forces hold that the AFSPA is necessary for tackling the growing menace of militancy and protecting their men from the unnecessary harassment caused by litigation. General V K Singh, the former chief of army staff and now a cabinet minister, has emphasized that the AFSPA is a 'functional requirement' of the armed forces. This is the first book in India not only to attempt a complete analysis of the various provisions of the AFSPA, but also to provide an insight into the legislative efforts of other democracies to meet the challenges of growing terrorism. It delves into cases of human rights violations in which members of the armed forces have been implicated, and at the same time, argues that it is equally important to safeguard the human rights of the members of the armed forces. In order to help find an amicable solution, the author makes a few recommendations for the consideration of the government and armed forces.

1	Introduction

Every State in the world maintains armed forces. They are one of the most powerful institutions in any country. In some, they are inseparably linked with the existence of the State and even the State’s primary decision-making organ. In a democracy, the armed forces are established by the fundamental laws of the country, embodied its constitution or legal code. Their role is defined by laws enforceable by courts of law and enshrined in the ethos of the armed forces.¹ Most democracies have evolved a set of practices and procedures that ensure that the armed forces play a positive role, are not involved in political activity, and are directed and overseen by other organizations of the government as well as observed closely by institutions such as a free media and other non-international organizations. Citizens of a democracy expect their armed forces to be capable of deterring and defeating threats to their national interest; whether internal or external. They hold members of their armed forces in high esteem for their perceived high standard of professional and personal integrity, which much higher than that of other government officials.²

Indian Constitution and the Armed Forces

The Constitution is the basic law and founding document of both the State and its system of government. A written constitution lays down a body of coherent provisions under which its government shall be established and conducted.³ India has the longest written constitution in the world.⁴ The Indian constitutional philosophy has three strands: protecting and enhancing national unity and integrity; establishing democratic institutions and the spirit of democracy; and fostering a social revolution to better the lot of the masses. ⁵ The powers and responsibilities of the union and the states are demarcated in the Constitution of India. Article 246 of the Constitution distributes legislative powers between the parliament and the state legislative assemblies. ⁶ The Union Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule (Union List). Entry 1 of List 1 provides for the defence of the country, while Entry 2 provides for the naval, military, air forces and other armed forces of the Union. Entry 2A deals with the deployment of any armed force of the Union or any other force subject to the control of the Union in any State in aid of civil power; and powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.⁷ Thus the Central Government is empowered to deploy the Army, Navy, Air Force, Assam Rifles and any other central armed police force in any state in aid of civil power. President is the supreme commander of the defence forces of the Union and his command is to be regulated by law.⁸ Article 74 (1) states that the President has to act on the advice of the Council of Ministers. It is the duty of the Union to protect every state against external aggression and internal disturbance.⁹ However, it must be remembered that in a federal State, internal security becomes the responsibility of the police, and the function of protection against external aggression is performed by the Centre through its armed forces. The armed forces may assist the civil power, but their sole function in a democracy is to fight and win wars.¹⁰ The Indian Armed Forces, which are apolitical, have always functioned in accordance with the Constitution. They have protected the sovereignty of the nation in international armed conflicts and countered violent internal threats and armed rebellion.¹¹

Role of the Armed Forces

The traditional role of the armed forces has been to provide security against external threats, however, they have often been called upon to the aid of civil power. The Regulations for the Army provides that the troops may be called upon to aid civil authorities and perform duties relating to the maintenance of law and order; maintenance of essential services; assistance during natural calamities and industrial accidents; and any other type of duties which may be needed.¹² These duties encompass counterterrorism, detecting and monitoring aerial or maritime transit of illegal drugs; integrating command, control, communications, computer and intelligence assets that are dedicated to interdicting the movement of illegal drugs; supporting drug interdiction and enforcement agencies; and humanitarian aid.¹³

Apart from a border dispute with China which led to a war in 1962, the Indian armed forces have fought wars with Pakistan in 1947, 65, 71 and 99. Exercise Brasstacks in 1987, the nuclear crisis in 1990-91 and Operation Parakram in 2001, were other instances of military mobilization which led to high tension between the Indian and Pakistani military. India is also facing an ongoing proxy war with Pakistan. The international border with Pakistan and in the Northeast is required to be manned on a permanent basis to counter infiltration, drug-trafficking, gun-running and to control the movement of trained terrorists.¹⁴ The armed forces have also supported the civil system in times of civil disorder and unrest, such as riots, communal violence, strikes and rebellions. This is true to other countries as well. For instance the Canadian Army was deployed against a Mohawk uprising known as the “Oka Crisis” in 1990;¹⁵ the British armed forces were actively involved in Northern Ireland, including the notorious “Bloody Sunday” incident of 1972; ¹⁶ and the French military was deployed for domestic security in 1996. ¹⁷

The domestic counterterrorism roles of the armed forces have expanded greatly across the world. The domestic deployment of the armed forces of some countries has been discussed in Chapter 6 of this book. The internal disturbances in the South and West Asia have had an impact on India; which shares borders with six countries. South Asia has emerged as the epicentre of global terrorism; and the vast and porous nature of Indian borders continues to be exploited by hostile elements for gun running, illegal immigration, drug-trafficking, circulation of counterfeit currency, money laundering, etc. These activities undermine India’s internal security environment.

The Central Paramilitary and Armed Police Forces

In India, the central paramilitary and armed police forces play a significant role in ensuring border security and maintaining the domestic law and order situation.¹⁸ A paramilitary is a militarized force whose function and organization are similar to those of a professional military, but which is not considered part of a State’s formal armed forces. The Crown Representative’s Police Force was raised in 1939 as a reserve force to aid the former Princely States in maintaining law and order in times of emergency. After independence, it was renamed as the Central Reserve Police Force (CRPF) under the Central Reserve Police Force Act, 1949. The Assam Rifles was initially raised as a police force mainly to guard the plains of Assam from the tribes inhabiting the surrounding hill tracts, but it became an armed force when the Assam Rifles Act, 1941, a Central Act, came into force. This Act has been replaced by the Assam Rifles Act 2006. The Assam Rifles has been assigned certain special functions in the north-eastern region, viz. the security of international borders in certain sectors, counter-insurgency operations and assistance to civil authorities in maintaining law and order in sensitive areas. Three other paramilitary forces were raised after the CRPF and the Assam Rifles. These are the Indo-Tibetan Border Police (ITBP) in 1962, the Border Security Force (BSF) in 1965, and the Central Industrial Security Force (CISF) in 1969. The Railway Protection Force was made an armed force in 1985. Like the CRPF and the Assam Rifles, these too are armed forces of the Union. Their names broadly describe their functions.

Under Section 139 of the BSF Act, 1968 members of the Force exercise powers and discharge duties under Union Acts like the Passport (Entry into India) Act, 1920 and Registration of Foreigners Act, 1939, as also the Criminal Procedure Code, 1973 (Cr PC) when they function within the local limits of specified areas adjoining the borders. The purpose of their being so empowered is to prevent cognizable offences under these Acts and to apprehend offenders. The members of the CRPF when deployed in a state, have certain powers of arrest, search, pursuit of offender, seize, and dispersal of unlawful assembly by use of civil force, etc., under the Cr PC.

When a request is received from a state government for the assistance of armed forces, the Union Government, after reviewing the availability of the state government’s own armed police, tries to meet the requirement by deploying central paramilitary/ armed police forces. The mushrooming of organized transnational crime groups and their nexus with terrorists and the exploitation of the resulting situation by Pakistani Inter-Services Intelligence (ISI) to wage a proxy war against India have also kept the central paramilitary/armed police forces busy.¹⁹

Armed Conflict

Before discussing the role of the armed forces in domestic deployment, it is important to look at how international law defines the term ‘armed conflict’.²⁰ The four Geneva Conventions of 1949²¹ provides no definitive definition of the term, though the term is specifically used in Common Article 2 and Common Article 3 of the Geneva Conventions.²² International law recognizes at least four different types of conflict situations, each of which is governed by a different set of legal norms. These are (i) international armed conflicts; (ii) wars of national liberation; (iii) internal armed conflicts; and (iv) situations of tension and disturbance.²³ The term “international armed conflict” refers to situations that involve two or more States engaged in armed conflict. In such situations, the central provisions of international humanitarian law (IHL)²⁴ become operative, particularly those contained in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I (AP I) to the Geneva Conventions. In addition, most human rights guarantees remain applicable in such situations, albeit subject to the same types of derogations and limitations permitted to governments in situations of internal tension and disturbance. The term “wars of national liberation” refers to armed conflicts in which “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination”. Generally, the same provisions of IHL and international human rights laws (IHRL) that apply in the context of international armed conflict apply equally in the context of wars of national liberation.

The term “internal armed conflict” refers to all armed conflicts that cannot be characterized as either international armed conflicts or wars of national liberation. The 1977 Additional Protocol II (AP II) to the Geneva Conventions of 1949 provides that internal armed conflicts “must take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement the Protocol”.²⁵ The term “internal tensions and disturbances” refers to situations that fall short of armed conflict, but involve the use of force and other repressive measures by a government to maintain or restore public order or public safety. Only IHRL applies in such situations, and the governments may derogate from or limit a restricted set of obligations under IHRL in the context of tensions and disturbances.

Kinds of Internal Armed Conflicts

Countries that have deployed their armed forces in the aid of civil power are generally reluctant to use the term ‘internal or non-international armed conflict’ to describe the situation prevailing in their territory. One of the main reasons for this is that terrorism or militancy is a new form of threat, from a new kind of combatants who are supported by actors across the international border. Several terms such as ‘low intensity operations’, ‘counter-revolutionary war’, ‘low intensity conflict’, ‘military operations other than war’, ‘sub-conventional operations’, ‘asymmetrical war’, ‘fourth generation war’, ‘hybrid war’, ‘small wars’, and ‘war on terror’ have been used to describe internal or non-international armed conflict.

Military analysts in India have been cautious about the use of the term ‘non-international or internal armed conflict’. Only in one book, written by a former Indian military officer, has the term ‘internal armed conflict’ been used. ²⁶ According to one military analyst, low intensity conflict (LIC) has certain essential features. These are: (i) the nature of the conflict is both political and military; (ii) the conflict could be for the achievement of political, social, economic or psychological objectives; (iii) the conflict is often protracted; (iv) the conflict is generally restricted to a specific geographical area; (v) there are constraints on the uses of ‘means and methods of warfare’; and (vi) the intensity of the conflict is below the level of conventional armed conflict. ²⁷

The Indian Army uses the blanket terms “sub-conventional operations” for all kinds of internal armed conflicts that are above the level of peaceful co-existence amongst states and below the threshold of war. It includes border skirmishes, proxy war, insurgency and terrorism. Sub-conventional operations are characterized by asymmetry of force between the regular and the irregular forces, with restrictive rules of engagement for the former.²⁸

The term “proxy war” is used when an armed conflict is conducted between nations utilizing non-state actors. At least one of the States must employ a third party to fight on its behalf for a conflict to be termed as a proxy war. The extent and type of support provided by the States to the non-State actors may vary, but financial and logistical support are normally provided. According to Grasser (1983), such conflicts could be also termed as ‘internationalized non-international armed conflicts’, as they are characterized by the intervention of the armed forces of a foreign power.²⁹

‘Insurgency’ is an organized armed struggle by a section of the local population against the State, usually with foreign support.³⁰ The possible causes of an insurgency include ideological, ethnic or linguistic differences; politico-socio-economic reasons and fundamentalism/extremism. Interference by external forces or inept handling of the situation may act as a catalyst to provide impetus to the movement. ‘Counter-insurgency’ is comprehensive civilian and military efforts designed to simultaneously defeat and contain insurgency and address its root causes. It includes all measures taken by the government to combat insurgency, such as operations by the military, economic development, political reforms and perception management aimed at winning the hearts and minds of the people.

‘Terrorism’ is the unlawful use or threatened use of force or violence against people or property to terrorize, coerce or intimidate governments or societies.³¹ It is most often resorted to with the aim of achieving political, religious, or ideological objectives. Terrorism thrives on a fear psychosis and could be employed as a part of an insurrectionist movement or independently. The term ‘counter-terrorism’ covers all offensive measures taken to respond to terrorist acts and could include actions taken by all government agencies, including the security forces of a nation. The measures could be of bringing terrorists to justice or their elimination by direct action, isolation and application of pressure on States that sponsor terrorism.

The term ‘asymmetric warfare’ is used to describe a military situation in which...