| #964 |  | 1411 |  |
January 31, 2013 |  | By Sameer Chauhan | ||
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The Armed Forces (Special Powers) Act (AFSPA) came under public gaze yet again when the Justice JS Verma Committee, set up to suggest amendments to criminal laws relating to crimes against women, submitted its 644 page report to Union Home Ministry on 23 Jan 13. The committee was mandated to submit its report within 30 days since it was convened under very challenging circumstances. This schedule was in keeping with the requirement to debate its recommendations along with the debate on amendments in criminal laws during the ensuing session of Parliament. The Committee commendably accomplished what it set out for within the given time. However, it is surprising and strange that the Committee chose to comment on the legitimacy of AFSPA. While it has recommended criminal liability on commanders for breach of command responsibility, the Committee did not think it prudent to interact with any of the serving / retired Armed Forces personnel or with anyone from the Ministry of Defence or the Army Headquarters or the Judges and Advocate General Department of the Army, who could have submitted their views on this sensitive subject. On the other hand, before formulating its recommendations, the Committee interacted with various serving and retired individuals from police, bureaucracy and judiciary as well as groups from length and breadth of country, of which 100 such individuals and nine government institution find mention at Appendix 2 of the report. The Armed Forces and the AFSPA have thus been condemned without being heard, a procedure definitely violative of the principles of natural justice. Coming to the specific issues which find mention in the report and which need special scrutiny by the Armed forces keeping in view the peculiar circumstances and situations of their deployment in conflict / border areas, the Committee has claimed to have noticed in Chapter Five, under the sub section ‘Offences against Women in Border Areas / Conflict Zones’, that “impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimised by the Armed Forces Special Powers Act, which is in force in large parts of our country”. The Committee has recommended:
Impunity for Allegedly Legitimising Sexual Violence by the AFSPA To say that “impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimised by the AFSPA” is a strange interpretation of this statute, which has been in vogue for last so many years. No statute of Parliament, on the face of it, can be said to be legitimising any sort of violence per se, least of all sexual violence against women. If at all any question is to be raised, it should be focused on to the manner in which the Statute is being operationalised by the respective arms of the State. To that extent, it can be said with conviction and certainty that it has been the solemn endeavor of the Armed Forces that any confirmed act of sexual violence committed by any member of Armed Forces which has come to the notice in the disturbed areas, has not gone unpunished. Where culpability was established, 104 soldiers, including 40 officers, have been punished in 35 cases so far. To that extent, AFSPA has not been an impediment in upkeep of judicial principles in these areas and thus, its repealing on this ground is self-defeating. Following the logic of the Committee, even the IPC and the Cr PC have been found wanting in upholding the rule of law in the country. Yet rightly there is no clamour for their repeal because the need is to strengthen their application. Similarly, in the case of AFSPA, the need is to strengthen the mechanism of application of AFSPA and not its repeal. It would be well-nigh impossible for the Armed Forces to operate in “disturbed areas” without enabling safeguards. Bringing Offences of Sexual Violence against Women under the Purview of Ordinary Criminal Law & Appointment of Special Commissioners The Committee has recommended that the Sec 6 of AFSPA, which actually provides immunity to members of Armed Forces operating in areas declared disturbed (under Section 3 of AFSPA), should be amended so as to read :- Sec 6. Protection to persons acting under 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. *[Provided that, no sanction shall be required if the person has been accused of committing an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 376(1), Section 376(2), Section 376(3), Section 376A, Section 376B, Section 376C, Section 376D, Section 376D or Section 376E of the Indian Penal Code, 1860.] * recommended addition by the Committee The Proviso which is now recommended to be inserted after Sec 6 of AFSPA by the Committee was, in fact, always inherent in the statute, albeit, it was to be given its purposive interpretation. Even to say that, the erstwhile language of Sec 6 “anything done or purported to be done" could have meant conferring sweeping powers to Armed Forces personnel to do “anything” with impunity or that they were free to do anything without being subject to criminal liability, would be preposterous, to say the least. And that could never have been the intent of the legislature. The legislature would always have meant that the Armed Forces were always to be bound to perform their functions within the cornerstones of Constitution and the primary statutes (IPC and Cr PC). If the proposed inclusion is to be allowed, then is it to be interpreted that, except for the offences provided for in the proposed Provision, the members of the Armed Forces while operating in areas where AFSPA is in vogue, will be free to commit any or all other offences listed in the IPC, without accruing any ordinary criminal liability? Will that not lead to anarchy? Going further on the other hand, if all the offences are said to be listed in the said proviso, will that not render the AFSPA itself redundant? But it is always the stated position of the Supreme Court that while interpreting any Statutes, redundancy of any existing statute is never the intention of the legislature. This proposed amendment (to insert Provision in Sec 6) in the existing statute (AFSPA) will hence create a peculiar problem for its judicial interpretation and thus will be judicially unsustainable in isolation. It needs to be well understood that the AFSPA has been enacted only as an enabling Act, which enables Armed Forces to operate in the areas which have been declared disturbed by the Executive (ie the Governor). And the area can be declared so only through the aid and advice of the Council of Ministers (Article 163 of the Constitution) and same is subjected to legislative scrutiny. Thus, rather than repealing the AFSPA, the legislature is always at liberty to withdraw application of Disturbed Area Act in a particular area, and thus lift the application of AFSPA from that particular area. But, where special conditions arise and the situation is beyond the control of local law and order enforcing machinery, then such special situations need special actions for which special provisions have to be enabled for the army called in to operate. Thus, AFSPA is to Armed Forces (deployed for operations in Disturbed Areas), what Cr PC is to Police in rest of the country. Armed Forces can never be said to have been enabled to act beyond the ‘basic laws of land’. There are adequate in built mechanisms in AFSPA (sec 5 and 6) which cater for the control of actions of the Armed Forces. Proposed Sec 376F into IPC: Offence of Breach of Command Responsibility This proposal is very vague in its interpretation which can hold a CO or any commander in the chain vicariously liable for the misdeeds of his junior and thus could lead the former ending up in jail for up to 10 years for the misdeeds of a subordinate who decides on his own to go morally astray. Further, it can only be said that the application of proposed section 376F in isolation or in combination with proposed provision in Sec 6 of AFSPA will only embolden those with vested interests and shall create a very congenial and fertile ground for purporting of false cases by local, self-proclaimed rights groups who may actually be a front for terrorist or extremist groups, without leaving any relief or immunity for the forces operating in such disturbed areas. The suggestion, if accepted, will only give such activists a legal handle to falsely implicate not only the troops on ground but their commanders as well, thus rendering the entire machinery useless. A BSF officer from the Eastern frontier, as reported in the Times of India, said that "This is akin to jailing the mother for the crime of the son. We already have a mechanism where commanding officer is reprimanded for transgressions of a junior officer; administrative actions are taken. But punishing him for individual aberration is just not on. Unless there is an organised criminal behaviour in a unit, commanding officer cannot be held responsible." Thus the introduction of a criminal liability for a CO for actions of a junior would add a completely new and extremely challenging burden to being a CO itself. Recommendation It is strongly proposed that the government must consult appropriate authorities from the armed forces as well as the think tank and the retired veterans from the armed forces so as to get a balanced view on the subjects, before considering for acceptance any of the proposals mentioned aforesaid. The author is a Senior Fellow at CLAWS.
Views expressed are personal.
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Sameer Chauhan |
