AFSPA once again
Last July, the Supreme Court had dealt a significant blow to the legal immunity enjoyed by the Indian Army and paramilitary personnel under the Armed Forces (Special Powers) Act of 1958 (AFSPA) for acts committed in 'Disturbed Areas'. It held that "there is no concept of absolute immunity from trial by a criminal court" if an officer of the security forces has committed an offence. The judgement had come following a petition filed by the Extra-Judicial Execution Victim Families Association, which comprises of families of persons killed by security forces in alleged fake encounter in Manipur. In its petition, the Association alleged that no action was taken in hundreds of instances of fake encounters committed by security personnel in the state since the 1970s. "Every death caused by the armed forces, including in the disturbed area of Manipur should be thoroughly enquired into if there is a complaint or allegation of abuse or misuse of power," the judgment read. In response, the Centre filed a curative petition in the court last week, stating that the July 2016 verdict is hampering the army's ability to respond to insurgency-related situations in regions torn by militancy, particularly the Northeast and Jammu and Kashmir. "It's an issue of national security," said Attorney General Mukul Rohatgi. Needless to say, AFSPA contains provisions that violate constitutionally conferred fundamental rights.
The main provisions of the Act allow security forces to shoot on sight for the maintenance of public order, arrest anybody without a warrant on "reasonable suspicion", carry out searches without consent, and destroy any property that is likely to be used by insurgents. Members of the various security forces, primarily the army, undertake these acts with the knowledge that they will not face any legal action for operations conducted in areas under the act. It is evident that this piece of legislation falls way short of the established norms of natural justice. "If members of our armed forces are deployed and employed to kill the citizens of our country on the mere allegation or suspicion that they are 'enemy' not only the rule of law but our democracy would be in grave danger," the court had observed in July 2016 order. Needless to say, the court is right. It is not as if the court is not aware of the difficult circumstances prevailing in Manipur and the other parts of the Northeast affected by insurgency. What the court had found difficult to accept is the complete absence of any investigation into alleged abuses of power by the armed forces. In a democracy, where accountability is an integral facet of the rule of law, no authority should be allowed to act with such impunity.