…is it the old wine in new bottle, a remedy worse than the disorder?

AFSPA & new legal perspective in CrPC!
Monday, 28 Nov 2011 at 11:47

…is it the old wine in new bottle, a remedy worse than the disorder?

AFSPA as per the latest reports is sought to be replaced by two clauses of ‘Criminal Procedure Code’ [CrPC] section 45 and Section 197-A. While section 45 deals with protection of members of the Armed Forces from arrest, section 197-A deals with prosecution of civil servants. As per section 45 “No member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.”

Section 197-A relates that no courts will take cognizance of an offence committed by a public servant “while acting or purporting to act in the discharge of his official duty” until a sanction was accorded by the Central Government. The question remains that is either legal enough to be called law or old wine in new bottles!

On the face of it each appears to be a replica of the other, in that both imply sanction of central government to proceed legally, a sanction which is rarely if ever granted! In addition CrPC is more stringent. Senior PDP leader, and a Supreme Court lawyer—Muzaffar Hussain Beg believes that Chief Minister’s ‘dicey’ proposal would allow Army to become a “part of local law and order machinery.” Baig was quoted as saying on phone from New Delhi that “AFSPA comes into force when an area is declared disturbed but CrPC is always in force. When CrPC is amended, Army will operate with impunity even if the area is not declared disturbed. There are safeguards in AFSPA, first area should be declared disturbed and army is called by the Governor on the advice of the council of ministers. If these two sections are included in CrPC even a Magistrate can call the Army.” Beg added “AFSPA is not a permanent feature it can be revoked anytime. If CrPC is amended army will become a part of state’s law and order machinery.” Many leading lawyers, quoted in local media argued against CrPC on similar lines, its permanency and inclusion of even the civilian officers in immunity clause were adversely commented upon.   

We may now proceed with examining the legality of AFSPA. In 2009, on March the 23rd India took the plea of Article 355 of her constitution which implies that it is the ‘Duty of the Union to protect States against external aggression and internal disturbance–It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution’. It was invoked to overcome objections raised by UN Commissioner for Human Rights Navanethem Pillay to AFSPA. Terming it as colonial, the commissioner termed the law as "dated and colonial-era law that breach contemporary international human rights standards." Indian Attorney General pleaded that there is no duty under international law to allow secession.

Earlier in 1991, United Nations Human Rights Committee [UNHRC] questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights [ICCPR]. Article 4:1 of the covenant provides for emergencies, it reads:  In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 4:2 implies–No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision and 4: 3—implies keeping other states parties to the present Covenant informed of derogation, reasons for accentuation, termination of such derogation though secretary general of UN.

As per 4:2 it is implied that no derogation from certain articles may be made under this provision. A cursory look at these articles make some of them relevant to the ground facts in Kashmir, as brought out in a newsletter by the outgoing Chairman of J&K State Human Rights Commission [SHRC] Justice Bashir-ud-Din. Article 6:1 relates-Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life and article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. It is highly questionable whether collateral damage, which may imply death of an innocent, could be justified as per Article 6:1 of International Covenant on Civil and Political Rights [ICCPR].

Justice Bashir-ud-Din observes by virtue of the Act [AFSPA] even a non-commissioned officer is authorized to shoot anyone on mere suspicion “in order to maintain the public order”. The Justice further observes AFSPA has to be measured and proportionate to the given situation with “an objective to save the innocent lives”. It may safely be adjudicated that articles 6:1 and 7 justify, what the learned judge has observed in his parting note– the “Compendium of selective informative material on human rights with reference to J&K” what has been also called a newsletter, Justice Bashir-ud-Din is not the only legal authority to question AFSPA, Justice Jeevan Reddy commission advocated revocation.

Justice B P Jeevan Reddy [former judge of the Supreme Court] led 5 member committee appointed in the wake of intense agitation that was launched by several civil society groups in northeast recommended AFSPA withdrawal on June 6, 2005.  The then Defence Minister Pranab Mukerjee rejected the withdrawal or significant dilution of the Act on the grounds that “it is not possible for the armed forces to function” in “disturbed areas” without such powers. Given that the permission of home ministry for central forces and of defence ministry for army is a requirement for prosecution of alleged offenders,  Justice Bashir-ud-Din observes that cases pending with the concerned ministries should be considered and decision conveyed to empowered authority for follow up action. This may find a similar response as Reddy recommendations. And his observation that the Government “cannot exercise arbitrarily its powers on ground or withhold sanctions at its sweet will and pleasure,” and “Sitting over the matter for how so long is no substitute to sanction or not to sanction the prosecution” may fall on deaf ears, as did Reddy’s!

In recent developments over the controversy engulfing the Chief Minister Omar Abdullah’s plea for partial revocation of AFSPA from J&K State, as per news reports he has told his cabinet colleagues that the Centre was fully backing the state government’s move for partial revocation of the controversial Armed Forces Special Powers Act (AFSPA). Reportedly a cabinet minister preferring not to be named has related “Though the issue was not on cabinet agenda the chief minister started the meeting with the briefing over AFSPA,” adding “reservations shown by the army have to be addressed”. While asking his colleagues to desist from making public statements over the issue, he is reported to have stressed “We have to understand that it (AFSPA revocation) should not be made an issue of public debate”. The chief minister might be mistaken in his belief, as the issue is already being hotly debated. On microblogging site Twitter, Abdullah described the cabinet meeting as a “routine” however he affirmed that he “briefed his colleagues over the discussions in Delhi on AFSPA”.

In his aim to replace AFSPA with CrPC 45 and 197-A, Chief Minister Omar would have to take care that remedy suggested might be worse than the disorder!

         Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival] Feedback on: iqbal.javid46@gmail.com