By Anuj A and Aditya AK.The first week of November saw the Meghalaya High Court pass a rather tersely written order, directing the Central government to “consider” the use of the Armed Forces (Special Powers) Act in the Garo Hills area of the state..It was an order that naturally garnered much media attention, in a region that is usually neglected in the media..In this edition of #LawyersLingo, we discuss eight aspects about the order..What are the powers under the Armed Forces (Special Powers) Act?.Close to sixty years ago, barely a decade after Independence, the Indian Parliament concluded that violence had become a “way of life” in the north-eastern region of the country. With the state machinery “incapable” of managing the internal disturbance, it was felt that the armed forces needed to be called in..Initially the Armed Forces (Assam and Manipur) Special Powers Ordinance promulgated in May, 1958, the ordinance became the Armed Forces (Special Powers) Act less than three months later. By 1986, the Act was extended to all the seven north-eastern states..Under AFSPA, the Governor (State) or administrator (Union Territory) can declare a region or the entire state to be “disturbed areas” requiring the intervention of the armed forces. Once the AFSPA comes into play, a commissioned officer (or equivalent rank) is granted special powers (Section 4) including:.Use of force for maintaining law and order (after due warning if necessary)Arrest without warrant.Enter and search premises without warrant.3. Why has the AFSPA come under so much criticism?.The most oft-repeated reason is that the legislation is open to, and has in fact, led to gross violation of human rights. The specific provision in question is Section 6 of the Act which says,.“No persecution, 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.”.By effectively granting immunity to members of the armed forces, critics say that the Act has only led to an increase of conflict and violence..In fact, the Constitutional vires of the Act was challenged before the Supreme Court in Naga People’s Movement of Human Rights v. Union of India. In November 1997, a Full Bench of the Supreme Court held, inter alia, that AFSPA was constitutionally sound. The Court also held that there was no Section 6 did not suffer from any legal infirmity, while also directing that allegations of misuse of the Act should be “thoroughly inquired into”..The Justice Verma Committee, formed in the backdrop of the Nirbhaya gang-rape, had in fact specifically looked into AFSPA and sexual assault, recommending that such cases be tried before criminal courts rather than military tribunals..In an interview with Bar & Bench, human rights activist Babloo Loitongbam had questioned the very logic of using armed forces to resolve internal conflict..“The whole issue of the Armed Forces Special Provisions Act (AFSPA) is this – because there is insurgency we have to use the Army and crush it. But what they have failed to see is that such small, ethnic groups are resisting the Indian state for 55 years.”.Just last week, Menaka Guruswamy (amicus in the Manipur encounter killings) informed the Supreme Court about the “over militarisation” of Manipur and the consequences of AFSPA in aggravating internal conflict..3. So has the High Court ordered the imposition of AFSPA?.Well, “ordered” would be incorrect. What the High Court has actually said is that the Central Government will “consider” the use of AFSPA in the Garo Hills until “life becomes normal”..The court has also directed the Principal Secretary in the Prime Minister’s Office to “place the order” before him for “perusal and consideration”..In the normal course of things, one would think that this is a mere recommendation, a completely non-binding one. However, given the wide ranging powers of a High Court under Article 226, it could be possible that the next hearing will be more explicit in nature..5. On what factual basis has the High Court passed these directions?.In essence, the court has relied on the “fast deteriorating law and order situation” in the Garo Hills in particular and Meghalaya in general. The court has minced no words when it says if AFSPA is implemented, the military and para military forces should “certainly not” come under the “command of the civil and police authorities”. In other words, the court’s faith in the State machinery appears to be quite shaky..The November order gives a number of statistics to back this claim – 87 kidnappings in the first ten months of 2015, villagers who live “totally exposed to the mercy of insurgents”, and a civil administration (including the police) that “stealthily fulfil the illegal demands of the insurgents”. There are two specific incidents that the order mentions. One is the kidnapping of a Block Development Officer who happens to the brother-in-law of the Superintendent of Police, Incharge of High Court Security..The other reference made is to “veiled threats” received by the judges on their safety once they retire. Remember, two of the three judges retire by February next year, with Justice Sudip Ranjan Sen retiring in March 2019..5. What steps have been taken by the Central Government to improve law and order?.This is perhaps the most interesting aspect of the order, quoting extensively from affidavits filed by the government. The affidavits reveal a number of facts, including:.Under the Modernisation of Police Force Scheme, INR 32.18 crore was allocated for 2010-2015; INR 3.48 crore this year.Security Related Expenditure (SRE) – INR 72.82 crore was allotted for 2010-2015Crime and Criminal Tracking Network and System (CCTNS) – 5.62 crore released till 30 September with INR 8.89 crore in total approved.Central Armed Police Forces grown from 22 companies in 2012 to 28 Companies in 2015.But clearly, all this has not been enough with the High Court holding that the “law and order situation in the Garo Hills has deteriorated beyond redemption”. According to the High Court, the only viable option is the AFSPA..6. So is this matter going to reach the Supreme Court?.Almost certainly, with our sources indicating that the apex court will be approached soon..In fact, this is the second time in recent times that the apex court may be be called into play. In May this year, the High Court had heard a suo motu petition (Writ Petition 127 of 2015) relating to bandhs in the state..This petition was based on a note prepared by the High Court’s Registrar General on the impact of bandhs on essential services. The High Court notes that the district court in West Jaintia Hills District was unable to function due to the absence of lawyers during a recent bandh called by the Hynniewtrep National Liberation Council (HNLC), a banned organisation..In the May 2015 order, the High Court passed a number of directions, including one to the print and electronic media prohibiting the publication of calls for bandhs. In fact, the Meghalaya Editors & Publishers Association even approached the Supreme Court against this, but their petition (SLP 27269) was dismissed on September 18 this year..And it possible that in one of these directions lay an indication of the use of AFSPA..“We also direct that the State Government shall authorize the local administration to take the assistance of Para-Military Forces which are positioned in Shillong in sufficient strength for holding Flag March to dispel the fear from the mind of common citizens, and also for use depending upon the law and order situation in the city of Shillong as well as across the State of Meghalaya.”.7. What do activists have to say on the Meghalaya HC’s decision?.In reaction to the High Court’s order, a group of 60 people, including Retd. Justice K Chandru, Activists Arun Ferreira and Teesta Setalvad, as well as Prashant Bhushan, has protested the potential implementation of AFSPA in the region. In a strongly-worded statement, the High Court’s order is condemned as “uninformed, extraneous and [having] no basis in law and betray[ing] lack of application of mind.”.The letter notes that the high court has no business in interfering with Executive power granted under the Act. Secondly, it is pointed out that the High Court wants the Act to be in place “till life becomes normal and the incidents of rampant kidnapping and killing totally stop.” This is contrary to the judgment in Naga People’s Movement where it was held that a time limit for implementing the Act should be specified..In the same case, the apex court allowed a limited power of judicial review over notifications declaring areas to be disturbed. The letter states that the high court has effectively done away with this power by urging the Centre themselves to declare the Garo Hills region as a disturbed area..8. What will the Supreme Court do?.The million dollar question..This is anyone’s guess, and of course depends on the relief that is sought. If the argument made is that the High Court has overstepped the limits of Article 226, then we may very well have a Constitutional Bench set up, perhaps even a review of the Supreme Court’s decision in Naga People’s Movement..What may influence the apex court is the current hearings relating to investigations in the extra-judicial killings in Manipur. If one goes by amicus Menaka Guruswamy’s submissions, there has been a gross violation of rule of law in the region..We even may see another classic battle between the Executive and the Judiciary. For now all eyes on the December 10 hearing before the Meghalaya High Court..Read the order dated November 2:
By Anuj A and Aditya AK.The first week of November saw the Meghalaya High Court pass a rather tersely written order, directing the Central government to “consider” the use of the Armed Forces (Special Powers) Act in the Garo Hills area of the state..It was an order that naturally garnered much media attention, in a region that is usually neglected in the media..In this edition of #LawyersLingo, we discuss eight aspects about the order..What are the powers under the Armed Forces (Special Powers) Act?.Close to sixty years ago, barely a decade after Independence, the Indian Parliament concluded that violence had become a “way of life” in the north-eastern region of the country. With the state machinery “incapable” of managing the internal disturbance, it was felt that the armed forces needed to be called in..Initially the Armed Forces (Assam and Manipur) Special Powers Ordinance promulgated in May, 1958, the ordinance became the Armed Forces (Special Powers) Act less than three months later. By 1986, the Act was extended to all the seven north-eastern states..Under AFSPA, the Governor (State) or administrator (Union Territory) can declare a region or the entire state to be “disturbed areas” requiring the intervention of the armed forces. Once the AFSPA comes into play, a commissioned officer (or equivalent rank) is granted special powers (Section 4) including:.Use of force for maintaining law and order (after due warning if necessary)Arrest without warrant.Enter and search premises without warrant.3. Why has the AFSPA come under so much criticism?.The most oft-repeated reason is that the legislation is open to, and has in fact, led to gross violation of human rights. The specific provision in question is Section 6 of the Act which says,.“No persecution, 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.”.By effectively granting immunity to members of the armed forces, critics say that the Act has only led to an increase of conflict and violence..In fact, the Constitutional vires of the Act was challenged before the Supreme Court in Naga People’s Movement of Human Rights v. Union of India. In November 1997, a Full Bench of the Supreme Court held, inter alia, that AFSPA was constitutionally sound. The Court also held that there was no Section 6 did not suffer from any legal infirmity, while also directing that allegations of misuse of the Act should be “thoroughly inquired into”..The Justice Verma Committee, formed in the backdrop of the Nirbhaya gang-rape, had in fact specifically looked into AFSPA and sexual assault, recommending that such cases be tried before criminal courts rather than military tribunals..In an interview with Bar & Bench, human rights activist Babloo Loitongbam had questioned the very logic of using armed forces to resolve internal conflict..“The whole issue of the Armed Forces Special Provisions Act (AFSPA) is this – because there is insurgency we have to use the Army and crush it. But what they have failed to see is that such small, ethnic groups are resisting the Indian state for 55 years.”.Just last week, Menaka Guruswamy (amicus in the Manipur encounter killings) informed the Supreme Court about the “over militarisation” of Manipur and the consequences of AFSPA in aggravating internal conflict..3. So has the High Court ordered the imposition of AFSPA?.Well, “ordered” would be incorrect. What the High Court has actually said is that the Central Government will “consider” the use of AFSPA in the Garo Hills until “life becomes normal”..The court has also directed the Principal Secretary in the Prime Minister’s Office to “place the order” before him for “perusal and consideration”..In the normal course of things, one would think that this is a mere recommendation, a completely non-binding one. However, given the wide ranging powers of a High Court under Article 226, it could be possible that the next hearing will be more explicit in nature..5. On what factual basis has the High Court passed these directions?.In essence, the court has relied on the “fast deteriorating law and order situation” in the Garo Hills in particular and Meghalaya in general. The court has minced no words when it says if AFSPA is implemented, the military and para military forces should “certainly not” come under the “command of the civil and police authorities”. In other words, the court’s faith in the State machinery appears to be quite shaky..The November order gives a number of statistics to back this claim – 87 kidnappings in the first ten months of 2015, villagers who live “totally exposed to the mercy of insurgents”, and a civil administration (including the police) that “stealthily fulfil the illegal demands of the insurgents”. There are two specific incidents that the order mentions. One is the kidnapping of a Block Development Officer who happens to the brother-in-law of the Superintendent of Police, Incharge of High Court Security..The other reference made is to “veiled threats” received by the judges on their safety once they retire. Remember, two of the three judges retire by February next year, with Justice Sudip Ranjan Sen retiring in March 2019..5. What steps have been taken by the Central Government to improve law and order?.This is perhaps the most interesting aspect of the order, quoting extensively from affidavits filed by the government. The affidavits reveal a number of facts, including:.Under the Modernisation of Police Force Scheme, INR 32.18 crore was allocated for 2010-2015; INR 3.48 crore this year.Security Related Expenditure (SRE) – INR 72.82 crore was allotted for 2010-2015Crime and Criminal Tracking Network and System (CCTNS) – 5.62 crore released till 30 September with INR 8.89 crore in total approved.Central Armed Police Forces grown from 22 companies in 2012 to 28 Companies in 2015.But clearly, all this has not been enough with the High Court holding that the “law and order situation in the Garo Hills has deteriorated beyond redemption”. According to the High Court, the only viable option is the AFSPA..6. So is this matter going to reach the Supreme Court?.Almost certainly, with our sources indicating that the apex court will be approached soon..In fact, this is the second time in recent times that the apex court may be be called into play. In May this year, the High Court had heard a suo motu petition (Writ Petition 127 of 2015) relating to bandhs in the state..This petition was based on a note prepared by the High Court’s Registrar General on the impact of bandhs on essential services. The High Court notes that the district court in West Jaintia Hills District was unable to function due to the absence of lawyers during a recent bandh called by the Hynniewtrep National Liberation Council (HNLC), a banned organisation..In the May 2015 order, the High Court passed a number of directions, including one to the print and electronic media prohibiting the publication of calls for bandhs. In fact, the Meghalaya Editors & Publishers Association even approached the Supreme Court against this, but their petition (SLP 27269) was dismissed on September 18 this year..And it possible that in one of these directions lay an indication of the use of AFSPA..“We also direct that the State Government shall authorize the local administration to take the assistance of Para-Military Forces which are positioned in Shillong in sufficient strength for holding Flag March to dispel the fear from the mind of common citizens, and also for use depending upon the law and order situation in the city of Shillong as well as across the State of Meghalaya.”.7. What do activists have to say on the Meghalaya HC’s decision?.In reaction to the High Court’s order, a group of 60 people, including Retd. Justice K Chandru, Activists Arun Ferreira and Teesta Setalvad, as well as Prashant Bhushan, has protested the potential implementation of AFSPA in the region. In a strongly-worded statement, the High Court’s order is condemned as “uninformed, extraneous and [having] no basis in law and betray[ing] lack of application of mind.”.The letter notes that the high court has no business in interfering with Executive power granted under the Act. Secondly, it is pointed out that the High Court wants the Act to be in place “till life becomes normal and the incidents of rampant kidnapping and killing totally stop.” This is contrary to the judgment in Naga People’s Movement where it was held that a time limit for implementing the Act should be specified..In the same case, the apex court allowed a limited power of judicial review over notifications declaring areas to be disturbed. The letter states that the high court has effectively done away with this power by urging the Centre themselves to declare the Garo Hills region as a disturbed area..8. What will the Supreme Court do?.The million dollar question..This is anyone’s guess, and of course depends on the relief that is sought. If the argument made is that the High Court has overstepped the limits of Article 226, then we may very well have a Constitutional Bench set up, perhaps even a review of the Supreme Court’s decision in Naga People’s Movement..What may influence the apex court is the current hearings relating to investigations in the extra-judicial killings in Manipur. If one goes by amicus Menaka Guruswamy’s submissions, there has been a gross violation of rule of law in the region..We even may see another classic battle between the Executive and the Judiciary. For now all eyes on the December 10 hearing before the Meghalaya High Court..Read the order dated November 2:
