Recommendations of the Committee to Review the Armed Forces Special Power Act, 1958:
The Armed Forces Special Powers Act was adopted in 1958 with wide powers to search and arrest suspects without a warrant or to use force against persons including causing of death. Because of the special powers given to the security forces to act as judge and jury to award enhanced punishment without defining crimes, the AFSPA came to be viewed as an instrument of repression across the North East India. Following a massive democratic uprising in Manipur after the killing of Manomarama Devi in July 2004, the Union Home Ministry set up the Committee to Review the Armed Forces Special Powers Act of 1958 under the chairmanship of Justice Jeevan Reddy.
The report was submitted to the government of India in June 2005 and the Committee made the following recommendations:
1. The Committee has carefully considered the various views, opinions and suggestions put forward by the representatives of organisations and individuals who appeared before it as also the presentations and representations made by the concerned departments of the governments, security agencies and other organisations and individuals.
2. While devising a solution to the problem referred to the Committee, it has to bear in mind the following three basic conditions viz.,
ONE - The security of the nation, which is of paramount importance. Security of the nation involves security of the States as well. The very first entry in the Union List in the Seventh Schedule to the Constitution speaks of defence of India and every part thereof which means and implies that it is the power and obligation of the President, the Parliament and the Union Government to ensure the defence of India and of every part thereof. Though purporting to be a division of legislative powers between the Union and the States, the Seventh Schedule to the Constitution, it is well accepted, does represent the division of powers between the Union and the States. Even if a law is not made under and with reference to a particular entry / legislative head, the executive power would still be available under that entry. Lists-I and II set out the legislative heads / powers of the Union and the States respectively while List-Ill sets out the legislative heads, with reference to which both the Parliament and the State Legislatures can make laws, subject, of course, to the rule of parliamentary predominance recognised by Article 254. For ensuring the defence of India and of its every part, the Parliament can make such law and / or the Union government can take such executive action, as may be found necessary or proper. Some of the ways in which the Union government performs the said obligation are mentioned in Articles 352 to 356, (as pointed out in Chapter II of Part II of this Report. Article 355, which places an obligation upon the Union to protect every State against external aggression and internal disturbance and also to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution, has also been referred to at some length in the said part of this Report).
It is necessary to clarify that the Constitution does not contemplate that the obligation to protect the States in the Union shall be carried out by the Union Government only by invoking Article 352 (external aggression or internal rebellion) or Article 356 (to ensure that the government of every State is carried on in accordance with the provisions of the Constitution); the said obligation can be performed in such manner as may be found appropriate, without of course violating the spirit and letter of the Constitution. Now, coming to Article 355, it may be reiterated that the obligation created by Article 355 includes the duty to protect every State against internal disturbance as well. “Internal disturbance”, as pointed in Part II of this Report, represents a very serious, large scale and sustained chaotic conditions spread over a large area of the State. It is no doubt the power and obligation of the State Government to maintain public order as is evident from Entry 1 of State List in the Seventh Schedule to the Constitution. However, the said entry read with Entry 2A of the Union List means that (a) where the State Government finds that it is not able to maintain public order and it is of the opinion that the aid of the armed forces / forces under the control of the Union is necessary for maintaining or restoring the public order, it can request the Union Government to send the armed forces to maintain and restore the public order; (b) even where the State Government does not so request but the Union Government is satisfied that for protecting the State from “internal disturbance” i.e. to save it from domestic chaos or internal commotion, it is necessary' to deploy armed forces of the Union, it can do so under Art. 355.
TWO - It is equally the duty of the Union and the States to not only respect the fundamental rights conferred upon the citizens of India by Part III and other provisions of the Constitution; they are also under an obligation to ensure the conditions wherein the citizens can enjoy and avail of the fundamental and other rights available to the citizens. In particular, Article 21 of the Constitution expressly declares that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Article 14 in Part III of the Constitution ensures to its citizens equality before law and equal protection of laws within the territory of India which means that no citizen or group of citizens shall be discriminated vis-a-vis any other citizen or group of citizens.
Article 19 confers upon the citizens six valuable freedoms viz., freedom of speech and expression; freedom to assemble peacefully and without arms; freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and the freedom to practise any profession or to carry on any occupation, trade or business - subject of course to such reasonable restrictions thereon as may be placed by a law made by the Parliament or State Legislatures under clauses (2) to (6) of the said article. Clauses (1) and (2) of Article 22 confer equally valuable rights upon the citizens of India. Clause (1) declares that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to “consult, and to be defended, by the legal practitioner of his choice. Clause (2) declares that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours excluding the time taken for journey from the place of arrest to the nearest court of the Magistrate. Inasmuch as no law has been made by Parliament under Article 33 of the Constitution (as pointed out in Part II of this Report), the above mentioned rights remain sacrosanct and effective even where the armed forces of the Union are deployed to restore public order and/or peace or to protect a State against internal disturbance. Articles 25 to 30 ensure the freedom of religion and ensure to every religious denomination or any section thereof to manage its religious affairs; they ensure freedom of worship, right to conserve one's own culture and also confer a right upon the minorities to establish educational institutions of their choice.
THREE - The armed forces of the Union viz., the army, navy and the air force are meant to ensure the defence of the Union and all its parts. In other words, the armed forces are meant to guard our borders against any aggression by any foreign power or foreign agency, irrespective of the manner in which such aggression is perpetrated. The armed forces are trained and are equipped for this purpose. May be that in an emergency like a flood or other natural calamity, armed forces are also called in to provide relief and help the people but that is only a temporary phenomenon. The Union Government has also been creating and indeed expanding various para military forces under various enactments like the Border Security Force Act, Assam Rifles Act, Indo-Tibetan Border Police Act, CRPF Act, CISF Act and so on. The Union Government has also created what is known as “India Reserve Battalions”. Though these para military forces have been created for certain specific purposes, yet, on account of the disturbed situation in certain parts of the country, the Union Government has been obliged to deploy, from time to time, these forces as well as its armed forces to redress these situations. It must be recognised, at the same time, that the deployment of armed forces or para military forces of the Union to restore public order in any part of the territory of India, or to protect a State from internal disturbance is, and ought to be, an exception and not the rule. The deployment of armed forces for the said purposes should be undertaken with great care and circumspection. Unless it is absolutely essential for the aforesaid purposes, the armed forces of the Union should not be so deployed, since too frequent a deployment, and that too for long periods of time, carries with it the danger of such forces losing their moorings and becoming, in effect, another police force, a prey to all the temptations and weaknesses such exposures involve. Such exposure for long periods of time may well lead to the brutalisation of such forces - which is a danger to be particularly guarded against. This concern applies no less in the case of other armed forces of the Union as well. All this means that as soon as the public order is restored or the internal disturbance is quelled, the forces have to be withdrawn to their barracks or to their regular duties, as the case may be. This very concern and consideration underlies Sections 130 and 131 of the Code of Criminal Procedure, which have been referred to and dealt with in Chapter IV of Part II of this Report. These sections of the Code of Criminal Procedure make it repeatedly clear that where it is necessary to call in the army to disperse an unlawful assembly endangering public security, the armed forces so called in shall act according to the directions of the Magistrate though the manner in which the armed forces perform the task entrusted to them lies within their discretion. Even where the armed forces are called in for meeting a more serious threat to public order or public security, or where the deployment of the armed forces is required on a fairly long-term basis, this concern remains equally valid. It has also to be ensured that the legal mechanism under which they function is sufficiently clear and specific and accords with the spirit and provisions of the Constitution as adumbrated herein above. While providing protection against civil or criminal proceedings in respect of the acts and deeds done by such forces while carrying out the duties entrusted to them, it is equally necessary to ensure that where they knowingly abuse or misuse their powers, they must be held accountable therefore and must be dealt with according to law applicable to them. It is not unusual that there will be some indisciplined individuals in these forces as well, but their wrong actions should not be allowed to sully the fair name of the armed forces and the para military forces. While our armed forces are one of the most disciplined in the world, situations may arise when they are deployed outside their regular duties, i.e., when they are deployed for maintaining public order or for quelling internal disturbance in a part of the territory of India, when certain members thereof may seek to take advantage of their power and position to harass or otherwise trample upon the rights of the citizens of this country.
The legal mechanism should ensure that such incidents do not take place and should also ensure that adequate remedial measures do exist where such incidents do take place.
3. Bearing the above considerations in mind, we have to proceed ahead. At this juncture it would be appropriate to recall the terms of reference given to this- Committee. They read as follows:
“Keeping in view the legitimate concerns of the people of the North Eastern Region, the need to foster Human Rights, keeping in perspective the imperatives of security and maintenance of public order to review the provisions of the Armed Forces (Special Powers) Act, 1958 as amended in 1972 and to advise the Government of India whether:
(a) To amend the provisions of the Act to bring them in consonance with the obligations of the Govt. towards protection of Human Rights; or
(b) To replace the Act by a more humane Act.
The Committee may interact with representatives of social groups, State Governments and concerned agencies of Central Govt./State Govt. legal experts and individuals, as deemed necessary by the Committee in connection with the review of the Armed Forces (Special Powers) Act, 1958 as amended in 1972.
The Committee will meet as often as required and visit the North Eastern Region, if felt necessary.”
4. The Committee finds that there are four options available for it to adopt viz.,
(a) to recommend the repeal of the Armed Forces (Special Powers) Act, 1958;
(b) to recommend that the present Act should continue as it obtains today or with such amendments as may be found appropriate;
(c) in case the repeal of the Armed Forces (Special Powers) Act, 1958 is recommended, to recommend that it should be replaced by an appropriate legislation;
(d) in case of recommendation for repeal of the Act, to recommend insertion of appropriate provisions in an existing /cognate enactment
5. Keeping in view the material placed before us and the impressions gathered by the Committee during the course of its visits and hearings held within and outside the North-Eastern States, the Committee is of the firm view that:
(a) The Armed Forces (Special Powers) Act, 1958 should be repealed. Therefore, recommending the continuation of the present Act, with or without amendments, does not arise. The Act is too sketchy, too bald and quite inadequate in several particulars. It is true that the Hon'ble Supreme Court has upheld its constitutional validity but that circumstance is not an endorsement of the desirability or advisability of the Act. When the constitutional validity of an enactment is challenged in a Court, the Court examines (i) whether the Act is within the legislative competence of the Legislature which enacted it and (ii) whether the enactment violates any of the provisions of the Constitution. The Court does not - it is not supposed to - pronounce upon the wisdom or the necessity of such an enactment. It must be remembered that even while upholding its constitutional validity, the Hon'ble Court has found it fit and necessary not merely to approve the “Dos and Don'ts” in the instructions issued by the Army Headquarters from time to time but has also added certain riders of its own viz., those contained in clauses 8, 9 and 14 to 21 in para 74 of its judgment (at pages 156 and 157 of the judgment in NAGA PEOPLES' MOVEMENT OF HUMAN RIGHTS v UNION OF INDIA - (1998) 2 SCC 109). The Committee is of the opinion that legislative shape must be given to many of these riders. We must also mention the impression gathered by it during the course of its work viz., the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.
It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). For that purpose, an appropriate legal mechanism has to be devised,
(b) The Committee is also of the firm view that it would be more appropriate to recommend insertion of appropriate provisions in the Unlawful Activities (Prevention) Act, 1967 (as amended in the year 2004) - which is a cognate enactment as pointed out in Chapter III Part II of this Report instead of suggesting a new piece of legislation.
6. The reasons for adopting the course of introducing requisite and appropriate provisions in the Unlawful Activities (Protection) Act are as follows:
ONE - The ULP Act defines “terrorism” in terms which encompass and cover the activities of the nature carried on by several militant/insurgent organisations in the North-east States.
Use of arms and/or explosives so as to cause loss of life or property or to act against a government servant, with intent either to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country (as provided by Section 15), the kind of activity carried on by various militant / insurgent organisations in the North-east, falls within, the four corners of Section 15. It is terrorism within the meaning of the Act.
TWO - The ULP Act not only defines ‘terrorism' in expansive terms but also specifically lists some of the organizations engaged in militant / insurgent activity in Manipur, Tripura, Nagaland and Assam as terrorist organizations in the schedule appended to the Act. In other words, the Act recognizes that the activities carried on by the schedule mentioned organizations fall within the definition of ‘terrorism' and ‘terrorist activity' as defined by the said Act. Furthermore, as pointed out in Chapter III of Part II of this Report, the ULP Act does contemplate, by necessary implication, the use of armed forces of the Union as well as the other para military forces under the control of the Union to fight and curb the terrorist activities in the country. It is for the said reason that it has expressly barred, in Section 49, any suit, prosecution or other legal proceedings against “any serving or retired member of the armed forces or para military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism”. In this sense the ULP Act, as it now obtains, does provide for deploying the armed forces or para-military forces for fighting the militant/ insurgent/terrorist activity being carried on in some or all North-eastern States1. The Act is designed to curb the terrorist  activities of not only the organisations mentioned in the schedule but any and every terrorist activity.
THREE - a major consequence of the proposed course would be to erase the feeling of discrimination and alienation among the people of the North-eastern States that they have been subjected to, what they call, “draconian” enactment made especially for them. The ULP Act applies to entire India including to the North-eastern States. The complaint of discrimination would then no longer be valid.
FOUR - The ULP Act is a comprehensive law designed to (i) ban unlawful organisations; (ii) to curb terrorist activities and the funding of terrorism; and (iii) investigation, trial and punishment of persons indulging in terrorist acts, unlike the Armed Forces (Special Powers) Act which deals only with the operations of the armed forces of the Union in a disturbed area. After the proposed amendments, ULP Act would be more comprehensive in the sense that it would expressly permit deployment of armed forces and para-military forces of the Union to achieve its object viz., curbing terrorism. In other words, operations of the armed forces of the Union would be one of the ways of curbing terrorism. It would also mean that persons apprehended by the armed forces of the Union would be made over immediately to the nearest police station and would be tried in accordance with the procedural laws of the land. The prosecution too would be quicker and more effective because of the special provisions contained in Sections 44 (protection of witnesses) and 46 (admissibility of evidence collected through interception of communications). At the same time, the accused would also get the very important safeguard contained in Section 45 of the Act which provides that no court shall take cognizance of any offence under the Act unless previous sanction therefore is granted by the appropriate government, in case the prosecuting agency proposes to proved against him for any offence in Chapter IV or Chapter VI of this Act. We may clarify that in law it lies within the discretion and judgement of the investigating officer to decide, after due investigation, whether to proceed against the accused or to drop the proceedings and in case, he decides to proved against the witness, to determine the offence with which the accused is to be charged. In short, just because, a person is arrested by the armed forces acting under this Act, and is made over to the police, the police is not bound to proceed against him only for offences under this Act, the police is free, depending upon the evidence/material gathered during investigation, to file a charge sheet for offence under this Act or under IPC or such other appropriate enactment, as may be applicable.
7. As stated hereinabove, the ULP Act does contemplate, by necessary implication, use of armed forces or para-military forces to conduct operations and to take steps to fight and curb terrorism. It does not, however, contain any provision specifying their powers, duties and procedures relevant to their deployment. It does not also provide for an internal mechanism ensuring accountability of such forces with a view to guard against abuses and excesses by delinquent members of such forces. It is this lacuna, which is to be supplied by inserting appropriate provisions in the ULP Act. The provisions so introduced should be clear, unambiguous and must specify the powers of the armed forces/para military forces while acting to curb terrorist/insurgent activities.
8. We may also refer in this connection to the necessity of creating a mechanism, which we may designate as the “Grievances Cell”- Over the years many people from the region have been complaining that among the most difficult issues is the problem faced by those who seek information about family members and friends who have been picked up and detained by armed forces or security forces. There have been a large number of cases where those taken away without warrants have “disappeared”, or ended up dead or badly injured. Suspicion and bitterness have grown as a result. There is need for a mechanism which is transparent, quick and involves authorities from concerned agencies as well as civil society groups to provide information on the whereabouts of missing persons within 24 hours.
9. To ensure public confidence in the process of detention and arrest, grievances cells are proposed to be set up in each district where armed forces are deployed. These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt enquiries and furnish information to the complainant. Where, however, the complainant is not satisfied with the information furnished and is prepared to file an affidavit in support of his allegation, it shall be competent for the Cell to call upon the State level head of the concerned force or organization to enquire into the matter and report the same to the cell as early as possible, not exceeding in any event, one week. The State level officers from whom these Grievances Cells seek information shall immediately make necessary enquiries and furnish full and correct information to the Grievances Cell as early as possible, not exceeding in any event one week. The Grievances Cells will be composed of three persons, namely, a senior member of the local administration as its chair, a Captain of the armed forces/security forces and a senior member of the local police. These will have dedicated communications, authority to obtain information from concerned authorities and have facilities for recording and responding to complaints. They shall locate their offices in the premises of the Sub Divisional Magistrate or in the premises of the District Magistrates, as the case may be. Such a mechanism is absolutely essential to achieve the two equally important purposes viz., (a) to infuse and instill confidence among the citizenry that the State, while deploying the armed forces of the Union to fight insurgency/terrorism has also taken care to provide for steps to guard against abuses/excesses with a view to protect the people and to preserve their democratic and civil rights; and (b) to protect the honour and the fair name of the forces.
10. While deploying the forces under sub-section (3) the Central Government shall, by a notification published in the Gazette, specifying the State or the part of the State in which the forces would operate and the period (not exceeding six months) for which the forces shall operate. At the end of the period so specified, the Central Government shall review the situation in consultation with the State Government and check whether the deployment of forces should continue and if it is to continue for which period. This review shall take place as and when it is found necessary to continue the deployment of the forces at the expiry of the period earlier specified. It shall be permissible for the Central Government to vary the part of the State where the forces are deployed in case the earlier notification is in respect of a part of a State. Every notification extending the period of deployment of forces or varying the area of the State, as the case may be, shall be laid on the table of both the Houses of Parliament within one month of the publication of such notification.
11. A draft of the Bill, which is recommended to be incorporated as Chapter VI A of the Unlawful Activities (Preventive) Act, 1967 is enclosed herewith. The draft bill is meant to serve as a guide in drafting the legislation to be introduced in the Parliament. We may also mention that the Appendix to the draft incorporates the Do's and Don'ts issued by the Army and which have been approved by the Hon'ble Supreme Court of India in its decision report in Naga People's Movement for Human Rights Vs. Union of India (A.I.R 1998 Supreme Court 431) as well as the additional directions given by the Hon'ble Supreme Court. However, those directions which have been already incorporated in the Bill are not repeated in the Appendix.
12. A separate note submitted by Sri Sanjoy Hazarika, a Member of the Committee, is also enclosed at Annexure-XIV.
. As a matter of fact, it can be said that there are two enactments for fighting militant/insurgent /terrorist organizations, groups and gangs in the North-eastern States viz., the Armed Forces (Special Powers) Act whose application is limited to the North-eastern States alone and the ULP Act which extends to the whole of India including the North-eastern States.