The Cases that India Forgot: Procedural skirmishes that took place while the challenge to the AFSPA remained pending

After the Armed Forces Special Powers Act (AFSPA) was enacted, large parts of Assam and Manipur were designated as ‘disturbed areas’. This was eventually extended to the whole of Assam and Manipur, as well as parts of Nagaland, Mizoram, Tripura, Arunachal Pradesh and Meghalaya.

The AFSPA acquired notoriety early into its operation. Rather than aiding the civil administration in disturbed areas, the army effectively operated a parallel administration in those areas.

Counter-insurgency methods against the Nagas and Mizos included ‘village regrouping’, or the ‘forced relocation of civilians in camps under close surveillance’.

For instance, in the late 1960s, over 1,30,000 Mizos were regrouped into just over a hundred regrouping centres guarded by the army. Torture, rape, arbitrary detention, and killing inflicted by those in uniform became increasingly common occurrences.

By the early 1980s, petitions began to be filed in the Supreme Court and the Gauhati High Court (which at the time was the only high court for the seven states in the Northeast). Some of these petitions challenged the decisions of the government to notify areas as ‘disturbed’, while others challenged the constitutional validity of the AFSPA itself. Among the petitioners in the high court was Indrajit Barua, a civil engineer and alumnus of the Indian Institute of Technology Kharagpur.

When Barua’s petition arose for hearing at the Gauhati High Court in 1980, Justice BL Hansaria made the courageous decision of ordering a stay on the enforcement of Section 4(a) of the AFSPA, the ‘licence to kill’ section. This set the cat among the pigeons.

The Congress government at the Centre, together with the Assam state government, approached the Supreme Court asking that Barua’s petition (together with a group of similar petitions) be transferred out of Gauhati. They argued that agitations and protests were taking place across the state, that the Assam Judicial Officers’ Association had resolved to support the agitations, and therefore the atmosphere in the state was not conducive to a fair trial.

Tactically, the central and state governments would have conceived of their prospects of success as far more favourable in the distant Delhi High Court than in a court that was nearer to the epicentre of the insurgency.

The petition filed by the central and state governments was first heard out of term, that is, when the Supreme Court was in recess. Justice PS Kailasam, the ‘vacation judge’, stayed proceedings in the Gauhati High Court until the Supreme Court could decide the case during term time.

Upon hearing the case during term time, the Supreme Court agreed to transfer the petitions from the Gauhati High Court to the Delhi High Court. The Supreme Court arrived at this decision despite the arguments of leading Senior Advocate Dr YS Chitale that a tense atmosphere may have an impact on the investigation – but not the adjudication–of a case.

The Court also emphasized the administrative convenience for the government of the petitions being heard in Delhi as opposed to Gauhati. This logic was criticized by scholars as it implied that every case involving the Central government should be heard in Delhi rather than at the relevant state high court.

The central government’s strategy of seeking a transfer of the petitions to the Delhi High Court yielded dividends. On 3 June 1983, a bench of two judges of the Delhi High Court rejected the challenges to the constitutional validity of the AFSPA. The court accepted that collective security would trump individual rights and liberties.

"Social imperatives for the greater good must take precedence", the Court said.

The Court was also convinced by the argument that the AFSPA was in operation in a sensitive geographic region, with "China and Nepal in the North and North West, Burma in the East and Bangladesh (formerly East Pakistan) in the South".

While this strategic game of petitions and transfers was playing out in the high courts, separate petitions challenging the constitutional validity of the AFSPA were being filed in the Supreme Court. These petitions began piling up, with petitioners which included prominent human rights organizations such as the People’s Union for Democratic Rights, the Naga People’s Movement for Human Rights and the Human Rights Forum.

The petitions gathered dust for over one and a half decades, with no hearings taking place and the constitutional challenge remaining undecided. In that time, India had witnessed seven new prime ministers – from Rajiv Gandhi to IK Gujral – being sworn into office. No less than eleven chief justices of the Supreme Court (from Justice YV Chandrachud to Justice AM Ahmadi) had retired from office during that period. Laws almost identical to the AFSPA were enacted and applied first to Punjab (in 1983) and later to Jammu & Kashmir (in 1990).

As the petitions remained pending, the human cost of the AFSPA was incalculable. Over a dozen women were gang-raped by paramilitary forces in a period of three days in 1988 in the village of Ujanmaidan in Tripura. In 1995, soldiers began shooting indiscriminately in Kohima after mistaking the sound of a tyre bursting for a bomb blast. Seven people (including two children) were killed, and twenty-two were injured as a result.

In a separate incident the same year, a man was arrested on suspicion of being an insurgent in Purana Bazar, Nagaland. Two days after his arrest, he died in the custody of paramilitary forces under suspicious circumstances.

Eventually, it was the twelfth Chief Justice since the petitions were filed – Justice JS Verma – who constituted a five-judge bench of the Supreme Court to hear these petitions in a consolidated proceeding in 1997. (It bears repetition that these petitions had been in the judicial queue since the early 1980s!)

Apart from Justice Verma himself, the Bench consisted of Justice SC Agrawal and three other judges who would themselves become Chief Justices – Justices MM Punchhi, AS Anand and SP Bharucha.

Several prominent advocates appeared on all sides. Attorney General Ashok Desai represented the Central government. The NHRC was permitted to intervene, with Rajeev Dhavan appearing on its behalf. Those that appeared on behalf of the petitioners included Shanti Bhushan, Indira Jaising and Kapil Sibal.

This is an extract from “The Cases that India Forgot” by Chintan Chandrachud, which releases on February 1, 2020. The extract has been published with the permission of the author.