Alok Asthana 
After the Union government’s recent decision to not allow prosecution of soldiers and army officers involved in the killing of civilians at Mon, Nagaland, there is some frustration about the injustice this involves but also quiet resignation too. In a recent article, I argued that the tepid response could well be due to the widespread belief that the killings were a case of ‘honest error’ on the part of stressed-out security forces, something that a grateful nation must condone. The article also showed how the killing was not due to miscalculation but a wrong interpretation of the law. The public has been long misled into believing the law – specificaly the Armed Forces (Special Powers) Act – allows soldiers these transgressions. The fact is that it doesn’t.
Similarly, many believe, wrongly again, that AFSPA cannot be challenged in a court of law.
It is true that a constitutional bench consisting of five judges examined the validity and constitutionality of the provisions under AFSPA, in the Naga People’s Movement Vs. UoI case, and refused to set them aside. However, the petitioners had, surprisingly, built up the case on some weak arguments which were easily demolished.
It is my belief that the time is now ripe for a fresh judicial review of AFSPA by the Supreme Court, and that it is possible to put forward iron-clad arguments for why the law needs to be set aside.
The core argument must be based on Article 21 of the Indian constitution i.e. the right to life: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
The term ‘procedure established by law’ cannot mean any procedure passed as an act by parliament. There must be rule of law, not rule by law. In the famous case of Maneka Gandhi, it has been held that any procedure established by law – if unjust – would not be a procedure at all.
In Liberty after Freedom, Rohan J. Alva says, “The resolution of the contradiction (Does the survival of Art 21 forever depend on how it was treated by the law or should it be a fundamental right which operated as a shield against oppressive laws and contested forms of state action?) lay at the heart of Maneka Gandhi case. The path the Supreme Court adopted was to place article 21 on a pedestal higher than and above the law-making powers of the state.” He further says, “Article 21 is a right, where the implied substantive component to the term ‘liberty’ provides broad protection against unreasonable and arbitrary curtailment.’
Further, the Supreme court has now clearly laid down, in Kharak Singh v/s State of UP, that, ‘No person shall be deprived of life except by ‘due process of law’ ( not ‘procedure established by law’). As it seems, all that needs to be done now is to show that if the powers allowed to the armed forces under AFSPA are illegal, the act itself has violated the canons of ‘due process’, and is this invalid.
The two sections of the AFSPA that violate ‘due process’ are sections 4a and 7.
Sec 4 a – Any commissioned officer, warrant officer, non-commissioned officer or officer of equivalent act, in a ‘Disturbed Area, if of the opinion that it necessary to do so for maintenance of public order, after giving such 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 firearms, ammunition or explosives.
Sec 7 – No prosecution, suit or other legal proceedings shall be instituted except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of powers conferred by this act.
‘Due process of law’ must be ‘fair’, among other things. Even a minimalist reading of ‘fairness’ demands that the person be informed of the charge and be given an opportunity to refute/rebut it. This is the principle of natural justice. One canon of natural justice is audi alteram partem i.e., both sides should be heard.
Even God did not pass a sentence upon Adam without hearing him. “Adam”, says God, “where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat. The Indian state did not immediately hang a foreign national, Ajmal Kasab, despite universal acceptance of his heinous crimes against the people of India. He was properly tried, given a counsel and asked by highly educated judges, ‘What do you have to say?’ As against this, AFSPA allows even a non-commissioned officer, normally a class 10 pass jawan with about 12 years of service in the ranks, to be above God and Indian judges and pass a ‘Kill’ decision without giving the other party a fair chance to explain his case. This is a clear infringement of Article 21 (Right to life) because the accused was sentenced to death without being heard. Some may argue that there can be disturbances in the moment, such as a mob attack, when the authorities are under attack ad may have no option but to open fire. Such uses of force would come under the right to self defence which any public official (or even private individual) can invoke and have tested in court. However, it is clear that AFSPA provides soldiers with ‘rights’ that go well beyond this.
If a case to impose AFSPA in an area goes to court, the state will effectively be claiming that the residents of a state or district under the Disturbed Area Act cannot claim equality before law (Article 14), with residents of areas not under that Act, in being subject to different laws. They will substantiate their argument by saying that Article 14 does not forbid ‘reasonable classification’ for the purposes of legislation. However, that argument does not hold good for making a law that violates the ‘Right to Life’.
In his 1972 monograph, Some insights into Fundamental Rights, P.K. Tripathi has correctly pointed out that in every case of classification there are three elements that must be shown – the what, the whom, and the when. In this case, the state can justify the whom (only to people suffering from insurgency and terrorism), and the when (when certain specific conditions are met). However, they cannot justify the what. The what here is ‘making right to life redundant’, which is violative of the constitution, hence illegal. If the what itself is illegal, the triangle is incomplete and the whole argument falls apart.
Now about section 7. It provides a backdoor entry for the law in providing that, in some circumstances, a man may be deprived of his life without due process of law. The doctrine of colorable legislation means that what cannot be done directly cannot also be done indirectly. This doctrine comes into play when the legislature tries to accomplish something in a backhanded way when it can’t do it straightforwardly. Normally, law provides every person who has killed another to show to the court that the killing was done as ‘self defence’, which is the only legally approved way for killing another. Section 7, by providing an escape route for killers from facing the law in an open court i.e., in a ‘fair manner of evidence and counter evidence’, is a classic example of colourable legislation and is violative of the constitution.
Section 7 violates another precept of natural justice, which is nemo judex in causa sua i.e. No man can be a judge in his own cause. AFSPA allows the Union government to be a judge over whether its servant (the errant NCO) should be or should not be made to face aa court. The Union, being the employer of the NCO, has a clear stake in the interests of the NCO, and hence cannot be a judge to decide his fate.
An India and its Army without AFSPA
Most citizens believe that removing AFSPA would threaten the integrity of the Indian state or result in troops being jailed even for honest errors, and for that reason, we should not press for its removal even if its provisions are hard to justify and illegal. This is a myth propagated by interested parties. Even though this argument is not relevant while discussing the legality of AFSPA, let us look at it too.
Here I cite personal experience. I have commanded a specialist counter-insurgency force – a Rashtriya Rifles unit – in a ‘Disturbed Area (Manipur, 1994-95) and then again in a non-Disturbed Area (Doda, J&K, 1996-1997). The conditions in Doda were much more difficult than in the Valley sector of J&K, as only hardened foreign militants operated there and the density of security forces was very low. Those were peak insurgency times. However, we could easily and effectively operate equally in both sectors, whether having the umbrella of AFSPA or not. If your men are directed to act within the ambit of law but are efficient, insurgency can be easily curbed while also protecting law-abiding troops. Even in Doda, my men knew that if they acted with good intentions, the absence of the AFSPA umbrella would not harm them, since they would have a chance to prove their innocence to a judge under the Indian legal system. Those who wish to not even face a trial after killing a human being must necessarily be those that doubt the Indian legal system.
India will not get weakened by the removal of AFSPA. Far from it. In fact, it will be strengthened because the removal of an unjust umbrella will force units to desist from wrong acts and that will increase the willingness of ordinary citizens to abide by the law. The present fissiparous tendencies in border areas stem, to a large degree, from a feeling of anger among citizens arising out of the security forces illegally violating all aspects of their life and getting away with it.
Will the removal of AFSPA endanger the life of troops since they will now be wary of shooting first? Perhaps it will, in some cases. However, if they do commit mistakes as ‘genuine errors’, the law will provide them full opportunity to prove it in the court. In some remote case where an insurgent indeed gets away due to the hesitation of soldiers, nothing is really lost as killing an innocent civilian can never be placed above the possibility of a criminal escaping. The army must take up a case for better equipment that allows better surveillance and control of the area. When they have none, they feel compelled to shoot first without verifying – as they are taught to conduct themselves in war. In any case, this is a matter between the army and the state.
Removal of AFSPA will also strengthen the army as it will be welcomed by our disciplined troops. Today, they see rogue elements acting malevolently and getting away with their crimes, thus spoiling the image of the whole army that includes them. Why should lakhs of good guys pay for the misdeeds of a few evil ones?
Lawful illegality becomes the rule if lawless legislation is not removed. AFSPA is patently illegal and harmful to the interests of citizens, the state itself and hose of its disciplined troops. Action must be commenced to get the Supreme court to take a fresh look at it, this time with the right arguments, as laid out here.