Should there be Judicial Intervention over the Power under AFSPA ?

By Sayajit Pattanaik
AFSPA- Armed Force Special Power Act
Be it Democracy, be it Autocracy , Judiciary is the most vital pillar of every kind of system . It’s function to review the law, to check its implementation, to interpret the law, and to render justice are indispensable per se and cannot be neglected neither be overlooked. So it will never be extravagant to say that the audaciousness of a country and its people solely and strongly depends upon the stamina and the accountability of its free and fair Judicial System. Judiciary is the catalyst to make a law more effective and binding, so that people will always anticipate the consequence of their act before doing the same. So having a hand of judiciary on one’s head always acts as a controller on one’s activity. So there will be a kind of Psychological pressure on a person to get rid from indulging himself in any unlawful activity.
For example; Section-52 of Indian Penal Code, 1860 , which talks about the Punishment of a criminal act . By giving a close look into this section of punishment, one can easily figure out that it not only speaks about the concept and category of punishment but also puts a psychological pressure on the human being which will prohibit him from doing any activity which is unlawful in the eye of law. It means it will make the person think thousand times about the judicial consequences of his act before doing it . Therefore it will obviously prevent the person from doing any illegal activity from its root itself and even if the person does the same, the effect will be comparatively less than that of the act that he could have done with the said psychological pressure of punishment. So what we can conclude here is, the provisions of punishment and judicial consequences do prevent the person from committing any illegal activity from its root or from doing the same in a less effective manner.
However , when things come to legal activities , like maintenance of public order or activities for public good etc. , then the question is , how far the control of judiciary on the same is acceptable ?
Let us pick the present hot topic, in fact it has been the hot topic since the Independence, i.e. all about the continuous Insurgencies happening in the north and north east states , especially in Jammu & Kashmir . Most of the insurgencies were seemed to have been instigated by the political parties and most of the disturbances are related to religious conflicts and as a result it has also been witnessed that there have been confrontations between the Indian Armed force and the denizens of Kashmir which had led to some disastrous consequences like stone pelting , open fire and many more which took many innocent lives .
Therefore , eying to the same there has been a Special legislation enacted by the Center i.e. Armed Force Special Power Act {AFSPA},1958, which attributes special power on the armed force, that can be exercised by them in a “Disturbed area” (Section- 3 of the said Act ) in order to rehabilitate the situation and maintain law and order in that particular Area and also Section 6 of the said Act specifically immunizes the persons acting under the act by prohibiting any prosecution, suit or other legal proceeding from being instituted while exercising the power conferred by this Act. Despite such immunity and protection it has been witnessed in many instances that , the Hon’ble Supreme Court has stepped in several time to remove such immunity by virtue of some complains , as , it is violative of basic human Rights, Fundamental Rights; such as Article 14,19, 21 of Constitution of India, and it is an arbitrary attribution of powers on the armed force which permits them to commit extrajudicial killings , and it is unconstitutional per se.
In the Famous case of ” Naga Hills ” , on the question of constitutionality of the said act , the Hon’ble Court made it pretty clear that ,the central Act is not beyond the legislative Competence and it is not violative of Articles 14, 19 and 21 of the Constitution Of India . So now the question crops up, whether there should be judicial control over such exercise of power by armed force personnel conferred by the AFSPA , 1958 ?
The Prudent answer will be “No” , Because generally the steps taken by the armed force personnel in such disturbed areas to maintain Law and Order and public tranquility are mostly unplanned and quick , and they are supposed to take quick action in the given circumstances and any deviation from it may lead to catastrophic situations .
For example; in one instance, a situation where the armed force personnel are having very strong information that some terrorists are hiding there in the disturbed area and are being harboured by the Denizens and when the armed force personnel go there, the denizens welcome them by pelting stones and as a result one of the militant sustains severe injury. So in this Situation even after giving reasonable warning they do not stop pelting stones and in self defense one of the Army person fires on those hooligans and as a result one or two people die. Then will it be called as an extra Judicial Murder by the armed force personnel ?
In another situation, at the time of firing towards a eminent Terrorist in a crowded area, who is having the exhaustive potential to destroy the Country within a fraction of time, accidentally the bullet hits a civilian and causes death , then will it be amounting to extrajudicial and arbitrary killing of people and violation of the basic Fundamental rights guaranteed under the Constitution Of India ? The answer will be obviously “No”. So in the aforesaid situations the reaction of the armed force is an exhaustive Reflection of maintaining Public order and self defense.
Self Defense ! Self Defense against its own Country People ? Exercising the act of self defense against the hooligans of Enemy Country is obvious but against its own country people ! . It may sound astonishing but it’s true, because the act of our own country people towards our army seems to be more detrimental and cowardice than that of the hooligans of the enemy Country.
Now let us judge the recent incident, which accused the Indian Army of Violating the Fundamental Human right of the denizens of Kashmir as the army people tied one of the Stone-pelter in front of their jeep as a shield against the Stone Pelters, and this video went viral in the social Media and attracted huge controversies. Let us have a look into the truth behind the happening of such an incident as witnessed by one of the police personnel of J&K . It was on 9th April, the location was Budgam in Kashmir. One election was going on in the said location and suddenly a group of mob consisting of likely about 900(nine Hundred ) Stone pelters came and started pelting stones at the ITBP(Indo-Tibetan Border Police ) and J&K Police , who were guarding the polling booth and they were only nine in number . Actually the array of hooligans wanted to prevent the people from casting their votes. So what is to be noted here is that , the police people were only 9 in number and the hooligans were 900 in number and it was 9 Vs. 900 . Then ITBP Jawans realized that they had to do something unless they would not be able to get out alive . So one of the police personnel called the Army station commander and sent out an SOS(Save Our Soul) message . The Army commander sent a QRT (Quick response team) with one jeep and bus and the QRT was consisting of only 17(seventeen) members .When the team arrived the place, they also realized that it was difficult to face a mob of 900 Hooligans and the Commander of the QRT decided that, it would be unwise to do open fire at the mob and it would intensify the tension. At the same time it was paramount for them to rescue the ITBP Jawans and J&K police personnel from the mob. Then the Commander by applying his amazing presence of mind caught one of the stone pelter , tied him in front of their jeep and started moving towards the mob . The stone pelters by seeing that one of their member had been tied in front of the jeep, they stopped pelting stones towards the team, and this was previously known to the commander before taking such step. By doing so they were not only able to reach to the ITBP jawans and Police personnel and rescue them but also they were able to come alive out of the mob and no harm was caused to the person tied in front of the jeep .
So in the aforesaid situation , the reaction of the commander is a complete act of self defense and the way chosen by him was the sole way to rescue their colleagues from the Mob without causing any harm .
Therefore, in such situations , terming the action of the Army as violating the basic human right , and imposing judicial scrutiny on the same is completely unwise and unreasonable per se and it will discourage the armed force personnel from discharging their duty effectively . Recently there was also a video in the Social media showing Kashmiri Youths who were beating up the CRPF Jawans carrying guns. So it is pretty clear that the civilian are also not afraid of the CRPF Jawans .
Well , Let’s agree with the denizens of Kashmir that their human rights are being violated by the armed force as they fired on them . But what about the situation where the denizens therein are pelting stones towards them ? Are the armed force personnel not human beings ? Are they not having human rights ? Is stone pelting by the denizens not violating the human rights of the armed force personnel ? No one raised these questions because everyone is so concerned about the terrorists like activities of the stone pelters therein , that made them blind to visualize the human rights of the armed force personnel . Recently a same kind of situation happened in Chhattisgarh , wherein 26 armed force personnel were shot dead by the Maoists . But when the question arose that the army could have killed all of them by bombing in the forest . But the contention raised was that the Maoists are not animals , they are human beings . So bombing in the forest and killing them would result in violation of their human rights . Therefore it is quite evident that , those who raised the question of human rights of the Maoists are neither human beings nor do they know the definition of Human Beings .
Therefore in such situation it will not be prudent to restrict the hands of the armed force personnel by subjecting their powers to Judicial Scrutiny. Unless and until the hands of the armed force are freed from any restriction and control, it will never be possible for them to discharge their duty effectively, because in these situations they are discharging their duty and at the same time they are defending themselves from the attackers of their own country . So its a kind of peculiar and confusing situation and in these situations, imposing restriction on them will obviously discourage them from discharging their duty effectively.
However, even if the powers are conferred by the AFSPA, it will be no wrong to exercise the judicial control on some related matters , like the maximum period of declaring an area as a “Disturbed area” (u/s-3) , or with regard to the person empowered to issue such notification in relation to declaration of an area as “Disturbed area” etc.. In these cases Judicial interference is reasonable but not on the power conferred upon the Armed force by the said act and if there is any strong issue which attracts high public interest , then the matter instead of directly coming to the Ordinary Courts from its inception , should be allowed to be settled by the concerned army Department itself and even after that also if it remains unsettled then with the consent of the Central government the Judicial Interference is to be entertained as the last resort .

– Satyajit Pattanaik.
B.Sc Llb (4th yr)
School Of Law ,
KiiT University

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