Armed Forces Special Powers Act, 1958 : A critique

N Brajakanta Singh
Contd from previous issue
of the executive power of the State and that Parliament can only provide that whenever the executive authorities of a State desire, the use of Armed Forces in aid of the civil power would be permissible but the supervision and control over the use of the Armed Forces has to be with the civil authorities.
 It was also argued that the military cannot act independent of the control and supervision of the civilian authority. It was also argued that the State in whose aid the Armed Forces are so deployed shall have the exclusive power to determine that purpose, the time period and the areas in which the Armed Forces should be requested to act in aid of civil power and that the State remains a final directional control to ensure that the Armed Forces act in aid of civil power and do not supplant or act in substitution of the civil power.
The Supreme Court of India rejected the arguments of the petitioners by observing that the hon’ble Judges were, however, unable to agree with the submission of the learned counsel for the petitioners.
The Apex Court, in another paragraph, also observed that the expression ‘in aid to civil power’ in Entry 1 of the State List and in Entry 2A of the Union List implies that deployment of the Armed Forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which necessitated the deployment of the Armed Forces in the State.
The hon’ble Court unanimously upheld the Constitutional validity of the law on the ground of Parliament’s power to enact such legislation. The Court noted that the AFSPA concerned ‘the use of Armed Forces in aid of the civil power,’ which was within the domain of Parliament and not ‘public order’, which was within the authority of the State legislatures.
The Court also relied on Article 355 of the Constitution, which imposes a duty on the Union of India to protect every State from internal disturbance. A learned author observed that the Court should have examined the law on the touchstone of right to life under Article 21 of the Constitution of India.
It may be concluded that view of the Supreme Court is that the military is not subject to the control and direction of the civil authorities in a State where defacto Martial Law is promulgated. Any concerned citizen would agree that military can be used in internal disturbances as well as in containing armed opposition forces. When the military is deployed in an area under the AFSPA, it is anticipated that they should cooperate with the civilian authorities. They should not act unbridle, but police representatives must be associated with every operation conducted by Armed Forces of the Union. They must not carry out blind operations against innocent civilians in locating militants without specific intelligence report. They must avoid indiscriminate arrests and harassment of people out of frustration for not being able to detect and locate the real assailants. Any personnel involved in violation of law should not be protected. A democratic country is governed by Rule of Law not by rulers.
The writer is a Guest Faculty, Department of Law, MU.