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9
Armed Forces (Special Powers) Act
Urgency of Review1

Union Home Minister P. Chidambaram is reviewing the Armed

Forces (Special Powers) Act (AFSPA), 1958, and will, one hopes,
strike a fair balance between citizens’ rights and public order. What
also needs a review, perhaps even more urgently, is the Supreme
Court’s outrageous judgment upholding its constitutional validity
(Naga People’s Movement of Human Rights v. Union of India [1998],
2 Supreme Court Cases 109). No other law has incurred the odium
this act has repeatedly within the country and abroad in United
Nations fora, especially in the Human Rights Committee.
It speaks a lot for the Court’s insensitivity to citizens’ rights in
cases where ‘national security’ is involved—be it on the Terrorist and
Disruptive Activities (Prevention) Act (TADA) or the Prevention of
Terrorist Activities (POTA) Act—that its judgments are short on
legal analysis and rich on patriotic rhetoric that is wholly out of place
in judicial pronouncements. This ruling is perfunctory to a degree.
In fact, while considering a statute widely criticized as providing the

1 This chapter was written by A.G. Noorani and was first published in the Economic
and Political Weekly, 44(34), 22 August 2009.

Challenges to Civil Rights Guarantees in India. A.G. Noorani and South Asia Human
Rights Documentation Centre.
© Oxford University Press 2012. Published 2012 by Oxford University Press.
266 Challenges to Civil Rights Guarantees in India

State’s men in arms with ‘a license to kill’, the Court did not even

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refer to Article 21 of the Constitution, which recognizes the right to
life of every person citizen or foreigner.2
Since Maneka Gandhi,3 the Court has consistently ruled that the
procedure prescribed by law must be fair and reasonable, and the
law, in turn, must conform to the other fundamental rights, espe-
cially those embodied in Article 19(1) concerning all the aspects of
civil liberties; that ‘personal liberty’ means more than mere absence
of physical restraint and ‘life’ means more than mere existence. A
remarkable case law grew up based on Article 21 to ensure, inter
alia, instant medical aid, free legal aid to indigent persons accused of
criminal offence, a right to shelter and to speedy trial, protection of
ecology, and preservation of forests, to mention only a few.4
Read the entire report of the case, from pages 109 to 158 from the
head-notes onwards, and you will not find even a mention, let alone
a discussion of Article 21, the one constitutional provision that alone
suffices to invalidate the act.
The issues the judgment discussed pertained to:
• Parliament’s legislative competence to enact the law, since
‘public order’ is a State subject;
• the relevance of Constitution Articles 352 (Emergency) and
356 (President’s Rule);
• the scope of Parliament’s residuary powers of legislation,
regarding the declaration of ‘disturbed area’;
• the right to equality (Article 14), in light of the contention that
the act is discriminatory because Sections 130 and 131 of the
Criminal Procedure Code (CrPC) 1973 provide an alternative
and a more reasonable source of power in similar situations of
using force;
• Article 22 on the production of the arrested person before
the magistrate, the sanctions’ provisions and related issues of
construction.

2 ‘No person shall be deprived of his life or personal liberty except according to
procedure established by law’. The Constitution of India, Article 21.
3 Maneka Gandhi v. Union of India (1978), AIR SC 597.
4 See, for example, Maneka Gandhi v. Union of India (1978), AIR SC 597;
Hussainara Khatoon v. Home Secretary, State of Bihar, Patna (II), (1979), AIR SC
1369; Hussainara Khantoon v. State of Bihar, Patna (1979), AIR 1377.
 Armed Forces (Special Powers) Act 267

Shockingly, there is not a word of discussion about Article 21 in

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a judgment delivered on 27 November 1997, by which time it had
acquired an expanded meaning and high salience in legal discourse.
This, in a unanimous judgment—a rarity-delivered by Justice S.C.
Agarwal on a bench that comprised the Chief Justice of India (CJI),
J.S. Verma, and three others who became CJIs—M.M. Punchhi,
A.S. Anand, and S.P. Bharucha.
For aught we know, the point was not raised by any of the distin-
guished counsel who appeared in the case. But as far back as 31 March
1952 the Supreme Court had remarked, also in a unanimous judgment
delivered by CJI Patanjali Sastri, that as regards the fundamental rights,
‘this court has been assigned the role of a sentinel on the qui vive’ by the
Constitution (State of Madras v.V G Row [1952], SCR 597).
Sections 130 and 131 of the CrPC 1973 are a nearly identical
re-enactment of the code of 1898, enacted in the high noon of the
British Raj. The colonial rulers were, however, careful to provide pro-
tection to anyone acting under Sections 130 and 131 by requiring
the government’s prior sanction to the prosecution of any policeman
or soldier who exercised those powers. There was, of course, no such
protection to those personnel in Britain itself. The rulers of inde-
pendent India readily adopted these provisions.
Sections 130 and 131 of the CrPC read thus:
130. Use of armed forces to disperse assembly—

(1) If any such assembly cannot be otherwise dispersed, and it is

necessary for the public security that it should be dispersed, the
Executive Magistrate of the highest rank who is present may cause
it to be dispersed by the armed forces.
(2) Such Magistrate may require any officer in command of any group
of persons belonging to the armed forces to disperse the assembly
with the help of the armed forces under his command, and to arrest
and confine such persons forming part of it as the Magistrate may
direct, or as it may be necessary to arrest and confine in order to
disperse the assembly or to have them punished according to law.
(3) Every such officer of the armed forces shall obey such requisition in
such manner, as he thinks fit but in so doing he shall use as little force,
and do as little injury to person and property, as may be consistent with
dispersing the assembly and arresting and detaining such persons.

131. Power of certain armed force officers to disperse assembly—When

the public security is manifestly endangered by any such assembly and
268 Challenges to Civil Rights Guarantees in India

no Executive Magistrate can be communicated with, any commissioned

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or gazetted officer of the armed forces may disperse such assembly with
the help of the armed forces under his command, and may arrest and
confine any persons forming part of it, in order to disperse such assembly
or that they may be punished according to law; but if, while he is acting
under this section, it becomes practicable for him to communicate with
an Executive Magistrate, he shall do so, and shall thenceforward obey
the instructions of the Magistrate, as to whether he shall or shall not
continue such action [emphasis added].

Note the statutory injunction to ‘use as little force and do as little

injury to person and property’ as may be consistent with the neces-
sity of the moment (Section 130 [3]). Section 130 is the governing
provision. Section 131 is ancillary to it.
Contrast this with Section 4 of AFSPA:
(4) Special powers of the armed forces—any commissioned officer,
warrant officer, non-commissioned officer or any other person of
equivalent rank in the armed forces may, in a disturbed area—
(a) if he is of opinion that it is necessary so to do for the maintenance
of public order, after giving such due 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 explosive substances;
(b) If he is of opinion that it is necessary so to do, destroy any
arms dump, prepared or fortified position or shelter from
which armed attacks are made or are likely to be made or are
attempted to be made, or any structure used as training camp
for armed volunteers or utilised as a hideout by armed gangs
or absconders wanted for any offence;
(c) Arrest, without warrant any person who has committed a
cognizable offence or against whom a reasonable suspicion exists
that he has committed or is about to commit a cognizable offence
and may use such force as may be necessary to effect the arrest;
(d) Enter and search without warrant any premises to make any
such arrest as aforesaid or to recover any person believed to be
wrongfully restrained or confined or any property reasonably
suspected to be stolen property or any arms, ammunition or
explosive substances believed to be unlawfully kept in such
premises, and may for that purpose use such force as may be
necessary.
 Armed Forces (Special Powers) Act 269

(5) Arrested persons to be made over to the police: Any person arrested

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and taken into custody under this Act shall be made over to the
officer in charge of the nearest police station with the least possible
delay, together with a report of the circumstances occasioning the
arrest.
(6) Protection to persons acting under the Act; No prosecution, suit or
other legal proceeding 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 the powers
conferred by this Act.

Section 4(a) of the act is a statutory obscenity. It occurs in no

statute anywhere in any democracy. It has been aptly called a ‘licence
to kill’. Not only does it not enjoin restraint explicitly, but says that
the powers may be used ‘even to the causing of death’. What mean-
ing would this convey to the officer except a laxity, especially since
Section 6 protects him for all legal proceedings except with the pre-
vious sanction of the Central Government? Even the warning he
delivers will be such ‘as he may consider necessary’. The test is sub-
jective. No objective test —‘as is necessary’—is prescribed.
Can such a provision as Section 4 of AFSPA ever stand to fair scru-
tiny in the light of the Article 21 of the Constitution? An analogy is
apposite. In Khwaja Ahmad Abbas v. Union of India5 concerning the
validity of film censorship, the Supreme Court upheld the validity
of the Cinematograph Act, 1952, only on the express assurance of
the Government, at the very outset, that it ‘would set on foot [sic]
legislation’ to provide for an independent appellate tribunal against
the censors’ orders. (Paragraph 9) The aggrieved citizen must have a
fair and adequate remedy.
Moreover, it said
the real flaw in the scheme of directions (to the censors) is a total absence
of any direction which would tend to preserve art and promote it. … But
Parliament has not legislated enough, nor has the Central Government
filled in the gap (in its censorship code). Neither has separated the artistic
and the socially valuable from that which is deliberately indecent, obscene,
horrifying or corrupting. They have not indicated the need of society and the
freedom of the individual.6

5 AIR 1971 SC 481 (1971), 2 SCJ 242. Parantheses added by author.

6 Paragraphs 50–3.
270 Challenges to Civil Rights Guarantees in India

Section 4 (a) of the Act is even more offensive. It ignores the offic-

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er’s duty to respect the life of the citizen, omits this vital injunction
and contains instead a carte blanche unheard of in any other statute
in any other democracy—‘even to the causing of death’.
Where did the draftsmen get this from? It would be well worth the
while of any scholar to examine the entire process of legislation—the
tabling of the bill, debates in Parliament, and the rest. The South Asia
Human Rights Documentation Centre in New Delhi prepared a fine
paper on the act and drew on the debate. Its sister body, Asia Pacific
Human Rights Network, has produced able notes on AFSPA.
Judges tend to quote selectively at times. The judgment refers,
with utter irrelevance, to the power to summon the armed forces
in aid of civil power conferred by the Reserve Forces Act, 1980, in
England, to the Queen’s Regulations for the Army and to Volume 41
of Halsbury’s Laws of England.7
Had the judges consulted this hoary work more diligently, they
would have come across vastly more relevant statutes. The old English
doctrine was that the soldier is but a citizen in uniform and it is the
duty of every citizen to prevent crime. Section 3 (1) of the Criminal
Law Act, 1967, says: ‘A person may use such force as is reasonable
in the circumstances in the prevention of crime, or in effecting or
assisting in the lawful arrest of offenders or suspected offenders or of
persons unlawfully at large’.
Section 117 of the Police and Criminal Evidence Act, 1984, reads:
‘Where any provision of this Act (a) confers a power on a constable;
and (b) does not provide that the power may only be exercised with
the consent of some person, other than a police officer, the officer may
use reasonable force, if necessary, in the exercise of the power.’ Thus,
two statutes, seventeen years apart, contain the same injunction—use
only ‘reasonable’ force. This is because these acts enact traditional law
the British also enacted in Section 130 of the CrPC; albeit without
the right to sue the soldier or policeman who exceeds his powers.
Comments in a recognized work on section 3 of the Act of 1967
are pertinent:
Thus, the use of firearms must be justified in the necessity of the situation
and does not become legal by reason of the decision to call in the troops.
Indeed, the use of excessive force or the premature use of firearms would

7 Paragraph 15.
 Armed Forces (Special Powers) Act 271

render the officer in command and the individual soldiers personally

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responsible for death or injuries caused, issues of liability are decided by
the criminal or civil courts after the event.8

It goes back to the law settled in the Report of the Committee on

the Featherstone Riots in 1893. The Committee, comprising two
distinguished judges and a Member of Parliament, said:
The taking of life can only be justified by the necessity for protecting
persons or property against various forces of violent crime or by the
necessity of dispersing a riotous crowd which is dangerous unless
dispersed, or in the case of persons whose conduct has become felonious
through disobedience to the provisions of the Riot Act, and who resist
the attempt to disperse or apprehend them.
...

The question whether, on any occasion, the moment has come for firing
upon a mob or rioters, depends, as we have said, on the necessities of the
case. Such firing, to be lawful, must, in the case of a riot like the present,
be necessary to stop or prevent such serious and violent crime as we have
alluded to; and it must be conducted without recklessness or negligence.
When the need is clear, the soldier’s duty is to fire with all reasonable
caution, so as to produce no further injury than what is absolutely wanted
for the purpose of protecting person and property.

John Widgery sat on a tribunal to inquire into the violence in

Londonderry in 1972. His report stated that
Soldiers acting individually are generally required to give warning before
opening fire and are subject to other general rules which provide inter alia:
(2) Never use more force than the minimum necessary to enable you to
carry out your duties. (3) Always first try to handle the situation by other
means than opening fire. If you have to fire: (i) Fire only aimed shots (b) Do
not fire more rounds than are absolutely necessary to achieve your aim.9

Widgery also observed:

The injunction to fire only aimed shots is understood by the soldiers
as ruling out shooting from the hip—which they in any case regard as

8 A W Bradley and K D Ewing, Constitutional and Administrative Law,12th edition

(London: Longman, 1997), p. 668. They cite in support R v. Clegg (1995) IAC
482.
9 Report of the Tribunal appointed to inquire into the events on Sunday, 30th
January 1972 (Widgery Report), para. 89.
272 Challenges to Civil Rights Guarantees in India

inefficient, indeed pointless—except that in a very sudden emergency,

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requiring split second action, a shot from the hip is regarded as permissible
if it is as well aimed a shot as the circumstances allow.

Approving of the dicta in the Report of 1893, an Irish judge ruled

in 1938 that ‘a gun should never be used or used with any specified
degree of force if there is any doubt as to the necessity’.10
In a recent case, Kenneth Diplock took full note of the difference
between the riots of old and the insurgency situations of today. But
it did not drive him to dilute, let alone discard, the vital precondi-
tion of reasonableness.11 By 1977, insurgency in Northern Ireland
was at its peak. The insurgents were better educated and wielded
weapons more deadly than the insurgents in the Northeast or in
Kashmir. Diplock ruled, nonetheless, that a soldier would be liable
criminally if the amount of force he had used was not ‘reasonable
in the circumstances’. That was an issue of fact to be decided by
the jury.
The Supreme Court in Naga People’s Movement laboured hard on
this distinction but ignored the fact that the law on reasonable force
applies to both rioting and insurgency.
The Central Act makes provision for dealing with a different type of
situation where the whole or a part of a State is in a disturbed or dangerous
condition and it has not been possible for the civil power of the State to
deal with it and it has become necessary to seek the aid of the armed forces
of the Union for dealing with the disturbance. Similarly, under Section
131 CrPC, a commissioner or gazetted officer of the armed forces has been
empowered to deal with an isolated incident where the public security is
manifestly endangered by any unlawful assembly. The provisions in Sections
130 and 131 CrPC cannot thus be treated as comparable and adequate to
deal with the situation requiring the continuous use of armed forces in aid
of the civil power for certain period in a particular area as envisaged by the
Central Act and it is not possible to hold that since adequate provisions
to deal with the situation requiring the use of armed forces in aid of civil
power are contrary to Sections 130 and 131 CrPC the conferment of the
powers on officers of the armed forces under Section 4 of the Central Act
to deal with a situation of law and order in a State is discriminatory in
nature and is violative of Article 14 of the Constitution.

10 R.F. Heuston, Essays in Constitutional Law, 2nd edition (Delhi: Universal Law
Publishing Co. Private Limited) p. 147.
11 A.G. for Northern Island’s Reference (No.1 of 1975): (1977) A G 105 at 106.
 Armed Forces (Special Powers) Act 273

In Kashmir whole houses have been blown up by the army and

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paramilitary to get to a few militants hiding in them instead of using
other means to flush them out. The Supreme Court in Naga People’s
Movement upheld this power as well without insisting on the require-
ment of reasonableness:
Section 4(b) confers the power to destroy any arms dump, prepared or
fortified position or shelter from which armed attacks are made or are
likely to be made or are attempted to be made or any structure used in
training camp for armed volunteers or utilised as a hideout by armed
gangs or absconders wanted for any offence. It is urged that the said
power is very wide in its scope and that apart from destruction of any
arms dump, fortified positions, shelters and structures used by armed
groups for attacks, it extends to destruction of a structure utilised as a
hideout by absconders wanted for any offence and that, to that extent,
it is invalid. We do not find any merit in this contention. Absconders
wanted for an offence are persons who are evading the legal process. In
view of their past activities the possibility of their repeating such activities
cannot be excluded and conferment of the power to destroy the structure
utilised as a hideout by such absconders in order to control such activities
cannot be held to be arbitrary or unreasonable.12

It, likewise, upheld the sanctions provision (Paragraphs 52 and

74) on the ground that refusal of sanction to prosecute is open to
judicial review. In contrast, in Britain an action for damages as well as
a criminal prosecution lies against a police officer for assault or false
imprisonment. Between 1970 and 1979 as many as fifty officers were
convicted of assault.
In 1987 three known IRA personnel were shot by four soldiers while
it was thought that they were about to detonate a bomb, to the danger
of life, on Gibraltar, a British colony. The case reached the European
Court of Human Rights. Article 2 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms provides:
(1) Everyone’s right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence
of a court following his conviction of a crime for which this penalty is
provided by law: (2) Deprivation of life shall not be regarded as inflicted
in contravention of this Article when it results from the use of force
which is no more than absolutely necessary.
(a) in defence of any person from unlawful violence;

12 Paragraph 48.
274 Challenges to Civil Rights Guarantees in India

(b) in order to effect a lawful arrest or to prevent the escape of a

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person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection.

Thus, whether it is a case of ‘quelling a riot or insurrection’, Article

2 lays down that the use of force must be ‘no more than absolutely
necessary’.
The European Court construed Article 2 in the Gibraltar case.13 By
a majority of 10 to 9, the Court held that there had been a breach of
Article 2 which, in protecting the right to life, was said to rank as ‘one
of the most fundamental provisions in the Convention’.14 There was
no evidence of ‘an execution plot at the highest level of command in
the Ministry of Defence or in the government’15 although ‘all four sol-
diers shot to kill’.16 On the facts and in the circumstances the actions
of the soldiers did not in themselves give rise to a violation of Article
2.17 But it was held that the operation as a whole was controlled and
organized in a manner which failed to respect Article 2, and that the
information and instructions given to the soldiers rendered inevitable
the use of legal force in a manner which failed to take adequately into
consideration the right to life of the three suspects.18 Further,
To the decision not to prevent the suspects from travelling into Gibraltar,
to the failure of the authorities to make sufficient allowances for the
possibility that their intelligence assessments might in some respects, at
least, be erroneous and to the automatic recourse to lethal force when the
soldiers opened fire, the Court was not persuaded that the killing of the
three terrorists constituted the force which was no more than absolutely
necessary in defence of persons from unlawful violence.19

The Supreme Court has drawn on the rulings of the European Court
in other cases. This ruling is very relevant to an interpretation of
Article 21 of our Constitution.
It is clear that Section 4 of AFSPA is manifestly, demonstratively
violative of Article 21 of the Constitution. Two major changes are

13 McCann v. UK (1995) 21 EHRR 97.

14 Paragraph 147.
15 Paragraph 180.
16 Paragraph 211.
17 Paragraph 213.
18 Paragraphs 202–14.
19 Para. 214, See also Bradley and Ewing, p. 673.
 Armed Forces (Special Powers) Act 275

required in the act. The first is a drastic amendment of Section 4

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in the light of these rulings. Second, while it is too much to expect
deletion of the sanctions provisions, an independent appellate body
should be set up in the act to entertain complaints against the armed
forces or the police when they operate under AFSPA. The draft bill
prepared by the Jeevan Reddy Committee to Review the act as an
alternative to AFSPA is inadequate.
In Masooda Parveen v. Union of India and Ors (2007), the Supreme
Court followed the 1998 case but observed:
We cannot ignore the fact that many in Kashmir who have gone astray
are Indian citizens and it is this situation which has led to this incident.
We do appreciate that a fight against militancy is more a battle for the
minds of such persons, than a victory by force of arms, which is pyrrhic
and invariably leads to no permanent solution. We cannot ignore that
in this process some unfortunate incidents do occur which raise the ire
of the civil population, often exacerbating the situation, and the belief
of being unduly targeted with a feeling in contrast of the law and order
machinery that it is often in the dock and called upon to explain the
steps that they have taken in the course of what they rightly believe to be
the nation’s fight. We however believe that the examination of a complaint,
and the provisions of an effective redressal mechanism preferably at the
hands of the administration itself, or though a court of law if necessary,
is perhaps one of the most important features in securing a psychological
advantage. We also understand that in an investigation of this kind based
only on affidavits, with a hapless and destitute widow in utter despair on
the one side and the might of the State on the other, the search for the
truth is decidedly unequal and the court must therefore tilt just a little in
favour of the victims.20

It is another matter that in this very case it did not. But its empha-
sis on a redressal mechanism is significant. Its preferred acceptance
of one ‘at the hands of the administration itself ’ vividly reveals its
basic outlook.

RECOMMENDED READINGS
Covenants, Declarations, and Legal Instruments
European Convention for the Protection of Human Rights and Fundamental
Freedoms.

20 Masooda Parveen v. Union of India and Ors (2007), 4 SCC 548

276 Challenges to Civil Rights Guarantees in India

Cases

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AG for Northern Island ’s Reference (No.1 of 1975): (1977) AG 105.
Hussainara Khatoon v. Home Secretary, State of Bihar, Patna (II) (1979), AIR SC
1369.
Hussainara Khatoon v. State of Bihar, Patna (1979), AIR 1377.
Khwaja Ahmad Abbas v. Union of India (1971), AIR SC 481.
Maneka Gandhi v. Union of India (1978), AIR SC 597.
Masooda Parveen v. Union of India and Ors (2007), 4 SCC 548.
McCann v. UK (1995), 21 EHRR 97.
R v. Clegg (1995), IAC 482.
State of Madras v. V.G. Row (1952), SCR 597.

Books
Bradley, A.W., and K.D. Ewing (1997). Constitutional and Administrative Law, 12th
edition. London and New York: Longman.
Heuston, R F. (1963). Essays in Constitutional Law, 2nd edition. New Delhi,
Universal Law Publishing Co. Private Limited.