Human rights and indian armed forces in low intensity

CHAPTER I

INTRODUCTION

“A bullet fired by the security forces becomes a massacre by the security forces & every act of a terrorist or insurgent is attributed as a colossal failure of security”

1. The quote above describes the situation under which thousands of armed forces personnel, deployed to fight the anti national and anti social elements in low intensity conflict operations in the North Eastern region for over five decades and for two decades in Jammu & Kashmir.
2. One of the greatest threats to the future of Indian democracy is terrorism which has almost become a way of life in the North Eastern states. Pakistan has been waging a proxy war in Jammu & Kashmir since 1989. She has been infiltrating armed militants and promoting insurgency on a very large scale. Failure of the civil administration to control the situation has led to the deployment of the armed forces in low intensity conflict operations. Though, the security forces have been able to bring the situation under control, at the same time has also brought up the issues of violation of human rights from time to time.
3. The situation at present is that, while there is an increasing and widespread demand for human rights observance of by the security forces operating in low intensity conflict operations environment under Armed Forces Special Powers Act, gross violations of the same by the insurgent, militant and separatist organisations continue unabated.
4. In the recent past the demand for repealing of The Armed Forces Special Powers Act has considerably increased. This act is blamed to be a draconian law which violates the basic rights of human beings guaranteed to them by the various provisions of the constitution and international laws and conventions. Armed Forces Special Powers Act was enacted by the Parliament for the first time in 1958, to deal with certain serious threats to the integrity of the nation from some separatist organisations in some of the North Eastern states.   Under similar conditions this act was promulgated in Punjab in 1980s and in the state of Jammu & Kashmir in 1990.
5. Some people and organisations believe that Armed Forces Special Powers Act is the single most factor for the human rights violations.  Certain international organisations have also voiced their opinion in favour of the repeal of this act.  However, it needs an in depth study to ascertain whether Armed Forces Special Powers Act is only causing human rights violations and it’s repeal will help in reducing the same.

METHODOLOGY

Statement of the Problem

6. Armed Forces Special Powers Act is perceived to be one of the major reasons for human rights violations in low intensity conflict environment. Repeal of Armed Forces Special Powers Act will help in reduction of human rights violations in these areas.

Justification for the Study

7. Internal security environment has been deteriorated in various parts of the country since long due to ongoing low intensity conflict operations in their various forms.  Insurgency, militancy and terrorism are the result of some of the peculiar socio political situations, some of which are also engineered and abetted by our adversaries.  These problems have led to increased involvement of the armed forces to assist the civil administration in maintaining the law and order situation in various parts of the country.  Emergence of media especially electronic media and some human rights organisations have resulted into increased awareness of the human rights in the societies.
8. Human rights reports from time to time have indicated that a number of human rights abuses have taken place despite extensive constitutional and statutory safeguards. Violation of human rights by security forces has also been reported by many organisations. Since a very large number of armed forces are deployed in low intensity conflict operations in various parts of the country, the study of the subject is of great relevance. In such a scenario, it is imperative that all members of the armed forces be aware of the various aspects of human rights so that they are respected at all times and also to avoid allegations of violation of human rights while operating in low intensity conflict operations.

Scope

9. The scope of this paper is to study the concept and provision of human rights in International Declarations and Indian Constitution, legal aspects of employment of armed forces in low intensity conflict operations, Armed Forces Special Powers Act, Armed Forces Special Powers Act and human rights violations, recommendations on repeal/review of Armed Forces Special Powers Act and recommended measures to prevent human rights violations in low intensity conflict operations environment.

Methods of Data Collection

10. The library of the Defence Services Staff College, precies and handouts issued by the Defence Services Staff College, interaction with some prominent personalities, conduct of opinion poll at Defence Services Staff College and articles from the Internet has been the source of information and data used in this paper.   A bibliography of sources has been appended at the end of the dissertation as Appendix A.

Preview

11. It is proposed to study the subject by analysing and evaluating the following

aspects:-

1. Origin and concept of human rights.
2. Universal Declaration on Human Rights and provision of human rights in Indian Constitution.
3. Legal aspects of low intensity conflict operations and Armed Forces Special Powers Act.
4. Armed Forces Special Powers Act and human rights violations.
5. Recommendations on repealing of Armed Forces Special Powers Act.
6. Remedial measures to prevent human rights violations.
7. Conclusion.

CHAPTER II

ORIGIN AND CONCEPT OF HUMAN RIGHTS

1. References of the concept of basic human rights can be found in recorded history and ancient scriptures. In India the concept of human rights can be traced down to the Vedic times. There are many references in Vedas which throw light on the existence of human rights . The Rig Veda refers to three civil rights, the liberty of body (Tana), dwelling house (Skridhi) and life (Jibhasi). The importance of the freedom of the individual in a state and rules of war, one form of human rights has been described in Mahabharata. Artha Shastra elaborates on civil and legal rights first formulated by Manu which also include economic rights. In India, the modern version of human rights jurisprudence has taken birth at the time of British rule. The origin of this ideal lies in the struggle for freedom against the British rulers.
2. Modern historians credit the origin of the concept to Magna Carta 1521 AD. On close examination it would be seen that Magna Carta was a petition urging the King to concede certain rights to particular section of the people. It’s contents had neither the universality nor  direct relevance to common man’s basic freedom.
3. The term “Human Rights” was introduced in the United States Declaration of Independence in 1776. The French Resolution in 1789 ushered in the Declaration of Rights of Man and Citizen.  Much later in 1929, the Institute of International Law, New York, USA, prepared a Declaration of Human Rights and Duties.  In 1945, the Inter American Conference passed a resolution seeking the establishment of an international forum for the furtherance of human rights of mankind.
4. The World War II drew the required attention towards human rights.  The atrocities committed on ethnic grounds by the Axis Powers shocked the conscience of the international community.  The United Nations finally proclaimed the Universal Declaration of Human Rights in 1948.
5. Modern human rights can be categorised into three generations of rights. The first generation rights are concerned with the civil and political rights of the individual or the liberty oriented rights. The second-generation rights are those which are security oriented and provide social, economic and cultural securities. Third generation of human rights include the environmental and developmental rights. They are relatively of recent origin. They have evolved in response to various new concerns over which international consensus has emerged in recent years.
6. The concept of human rights is based on equal and inalienable rights of all human beings’ freedom, justice and peace in the world.  These are sometimes also called fundamental or basic rights.  These are often set out in the constitution of the nation.  All member countries of the United Nations have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.
7. The concept of human rights would include the following:-
1. Equality and justice for all, elimination of various distinctions between one human being and another anywhere and on any ground whatsoever.
2. No one to be held without any charge or trial.
3. Right to be produced before a magistrate with 24 hours of arrest.
4. Rights to fair and prompt trial.
5. Freedom from torture or ill treatment by any agency
6. Protection from sexual violations.
7. Rights to life and to be treated humanely, no killings, particularly of innocent person and not even inhuman behaviour.
8. Freedom from arbitrary and unlawful coercion.
9. Rights against any or all other excesses.

CHAPTER III

UNIVERSAL  DECLARATION ON HUMAN RIGHTS AND PROVISION OF  HUMAN RIGHTS IN INDIAN CONSTITUTION

1. The United States defined human rights in a policy document in 1978, which says, “Freedom from arbitrary arrest and imprisonment, torture, unfair trial, cruel and unusual punishment and invasion of privacy, rights to food, shelter, health care, education, freedom of thought, speech, assembly, religion, press, movement and participation in Government”.
2. The United Nations Organisation in keeping with its charter to promote respect for fundamental freedom and human rights for all without any distinction, came out with an International Bill of Human Rights consisting of the following:-
   1. Universal Declaration of Human Rights, 1948.
   2. The International Covenant on Civil and Political Rights, 1966.
   3. The International Covenant of Economic Social and Cultural Rights, 1966.
   4. The Optional Protocol (1966) providing for the right of the individual to petition international agencies.
3. The principle on which the above are based are:-
1. All human beings, without distinction have been brought within the scope of human rights instruments.
2. Equality of application without distinction of race, sex, language or religion.
3. Emphasis on international cooperation for implementation.
4. Provision of Human Rights in Indian Constitution. India is a signatory to the various conventions proclaimed by the United Nations Organisation. The Constitution of India guarantees to every citizen the basic human rights and fundamental freedom and gives due prominence in the form of fundamental rights enumerated in part III of the constitution  and are also embodied as Directive Principles of State Policy  .  The important aspects are:-
1. Right to equality.
2. )Right to freedom.
3. Right against exploitation.
4. )Right to freedom of religion.
5. Cultural and educational rights.
6. Right to constitutional remedies.

CHAPTER IV

LEGAL ASPECTS OF LOW INTENSITY CONFLICT OPERATIONS AND  ARMED FORCES SPECIAL POWERS ACT

1. General.  The armed forces have been engaged in counter insurgency operations especially in North Eastern states of India since 1958 and in Jammu & Kashmir since early nineties.  It is the constitutional responsibility of the army to ensure the integrity of the country both from external aggression as well as internal disturbances when the internal situation becomes serious and gets beyond the capabilities of the civil administration.
2. Legal Provisions. Several legal provisions exist to provide legal powers and protection to the armed forces to execute internal security duties and aid to civil authorities[x]. These provisions are enumerated below:-
1. Armed Forces (Special Powers) Ordinance, 1947.
2. Armed Forces (Special Powers) Act, 1958.

Provisions of Criminal Procedure Code (CrPC), 1973, (Section 45)

3. Constitution of India, Article 246 vis – a – vis the Commission of Inquiry Act, 1952.
4. The Unlawful Activities (Prevention) Act 1967.
5. Indian Arms Act 1959.
6. Indian Penal Code (IPC).
7. The Nagaland Security Regulation, 1962.

Armed Forces Special Powers Act

3. Background. To meet the situation arising in certain parts of India on account of the partition of the country in 1947, the Government of India issued four ordinances viz., Bengal Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 11 of 1947), Assam Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 14 of 1947), East Punjab and Delhi Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 17 of 1947) and United Provinces Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (Act 22 of 1947). These ordinances were replaced by the Armed Forces (Special Powers) Act, 1948 being Act 3 of 1948. It was repealed by Act 36 of 1957.
4.   The present act was enacted by the Parliament in 1958 and it was known initially as Armed Forces (Assam and Manipur) Special Powers Act, 1958. The act was preceded by an ordinance called Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958 promulgated by the President of India on 22 May 1958. The act applied to the entire state of Assam and the union territory of Manipur. After the new states of Arunachal Pradesh, Meghalaya, Mizoram, and Nagaland came into being, the act was appropriately adapted to apply to these states in 1972. As originally enacted, the power to declare an area to be a disturbed area was conferred only upon the state governments. By Act 7 of 1972, however, such a power was conferred concurrently upon the Central Government. This act was enacted in the state of Punjab in 1980s and in Jammu & Kashmir in 1990.
5.   The Preamble to the act, as amended, reads as “Act to enable special powers to be conferred upon members of the armed forces in disturbed areas in the states of xxxxx (as applicable)”.
6. The Act and its Provisions.   The provisions of the act are similar to those of the first passed in 1958.  The basic features of the act are as follows:-

1. Section 1. This section states the name of the act and the areas to which it extends.
2. Section 2. This section sets out the definition of the act.

1. Sub section (a).  the armed forces were defined as “Military forces and air forces operating as land forces, and includes any other armed forces of the union so operating”. 
2. Sub section (b).  It defines a disturbed area as “An area which is for the time being declared by notification under section 3 to be a disturbed area”.
3. Sub section (c). It states that all other words and expressions used but not defined in the act will have the meanings assigned to them in the Army Act of 1950 or Air Force Act 1950.

1. Section 3. It grants the power to declare an area disturbed to the Central Government and the governors of the state.   Governor of that state or the administrator of that union territory or the Central Government, as the case may be, may, by notification in the official gazette, declare the whole or such part of such state or union territory to be a disturbed area.
2. Section 4.  It enumerates the special powers of the armed forces, which are deployed in a state or a part of the state to act in aid of civil power. The section reads that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,

1. Sub section (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.
2. Sub section (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.
3. Sub section (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.
4. Sub section (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.

1.   Section 5.   This section states that that any person arrested and taken into custody under this act shall be handed over to the officer-in-charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.
2. Section 6.  This section confers a protection upon the persons acting under the act. No suit, prosecution or other legal proceeding can be instituted against such person in respect of anything done or purported to be done in exercise of the powers conferred by this act, except with the previous sanction of the Central Government.

g.Section 7.Repeal and saving.

7.Do’s and Don’ts for Armed Forces Special Power Act.   Army Headquarters has issued certain Do’s and Don’ts to be followed by the members of the armed forces while operating under Armed Forces Special Powers Act. As per direction of the Supreme Court,  the forces operating under this act shall observe

and abide by the following directives in the course of operations under the act:-

Do’s

8.Actions before Operations.

1.      Act only in areas declared “Disturbed area” under section 3 of the act.
2.      Power to open to fire using force or arrest is to be exercised under this act only by an officer /junior commissioned officer/ and non commissioned officer
   Before lunching any raid/search, definite information about the activist to be obtained from the local civil authorities.
3.      As far as possible co-opt representative of local civil administration during the raid.

9.Actions during Operations.

1.     In case of necessity of opening fire and using any force against the suspect or any person acting in contravention to law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.
2.    Arrest only those who have committed cognisable offence or who are about to commit cognisable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognisable offence.

Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities.

3. Ensure that women are not searched/arrested without the presence of female police.  Women should be search by female police only.

10.Actions after Operations.

1. After arrest prepare a list of the persons so arrested.
2. Handover the arrested persons to the nearest police station with least possible delay.
   While handing over to the police a report should accompany with detailed circumstances occasioning the arrest.
3. Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case.
4. After raid/search operations make out a list of all arms, ammunition or other incriminating material/ documents taken into possession.
5. All such arms, ammunition, store etc should be handed over to the police station along with the seizure memorandum.
6. Obtain receipt of persons and arms/ ammunition, stores etc so handed over to the police.
7. Make record of the area where operation is launched, having the date, time and the persons participating in such raids.
8. Make a record of the commander and other officer/ junior commissioned officer/ and non commissioned officer forming part of such force.
9. Ensure medical relief to any person injured during the encounter. If any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death.

11.       Dealing with Civil Court.

1.     Direction of the high court/Supreme Court to be promptly attended to.
2.    Whenever summoned by the court, decorum of the court must be maintained and proper respect paid.

Answer questions of the court politely and with dignity.

3. Maintain detailed record of the entire operation correctly and explicitly.

Don’ts

12. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station.
13. Do not use any force after having arrested a person except when he is trying to escape.
14.   Do not use third degree method to extract information or to extract confession or other involvement in unlawful activities.
15. After arrest of a person by the member of the armed forces, the member of the armed forces shall not interrogate him.
16. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.
17.   Do not tamper with official records.
18. The armed forces shall not take back a person after he is handed over to the civil police.

CHAPTER V

ARMED FORCES SPECIAL POWERS ACT AND HUMAN RIGHTS VIOLATION

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Argument Against  Legality of Armed Forces Special Powers Act

2. Various human rights organisations have pointed out many shortcomings of the Armed Forces Special Powers Act and blame it to be illegal. Some of the important aspects are enumerated in succeeding paragraphs. Indian Laws. Several cases challenging the constitutionality of Armed Forces Special Powers Act are pending before the Supreme Court. The following provisions of the Indian laws are alleged to be contravened by this act:- Violation of Right to Life.   Article 21 of the Indian Constitution guarantees the right to life to all citizens of the country. This right is violated by section 4 of this act.
   1. Violation of Right of Equality.Article 14 of the Indian Constitution guarantees equality before law. People residing in disturbed areas are denied this right due to provision of section 6 of the act which prevents citizen from filing a suit against the member of armed forces without the sanction of the Central Government.

      Violation of Protection Against Arrest and Detention. Under section 22 of the Constitution, any person arrested should be informed of the causes for the arrest and also he/she should be produced before a magistrate within 24 hours of arrest. This act violates both these provisions as the armed forces detain people for days and months at times.

   2. Preventive Detention Law. If the detention of arrested persons beyond 24 hours is defended on grounds of Preventive Detention Law, it still violates the provision of the law. As per provision of this law any person arrested without a warrant cannot be held for more than three months. Any detention longer than three months has to be reviewed by an advisory board. No such provision has been incorporated in Armed Forces Special Powers Act.
   3. The Indian Criminal Procedure Code (CrPC).
   1. The Criminal Procedure Code describes the procedures that the police is to follow for arrests, searches and seizures. Armed forces are not trained on these procedures and hence do not follow them. Criminal Procedure Code also advocates use of minimum force to disperse any assembly. No such provisions exist in Armed Forces Special Powers Act.
   2. An executive magistrate or a police officer not below the rank of a sub inspector is is authorised to disperse any unlawful assembly. In Armed Forces Special Powers Act every member of the armed forces less a sepoy has been authorised to do the same job.
   3. Criminal Procedure Code does not state use of force to disperse an assembly to the extent of causing death unless they are accused of an offence punishable by death. The same provision does not apply to Armed Forces Special Powers Act.
3. Lack of Remedy to the Victim. Section 6 of Armed Forces Special Powers Act violates the provision of section 32(1) of the constitution that state the right to move to the Supreme Court in case any violation of his basic rights guaranteed by the constitution.
1. State of Emergency. Armed Forces Special Powers Act grants the state of emergency powers to the armed forces without declaring a state of emergency as prescribed in the constitution.
2. International Laws. Human rights organisations like United Nations Human Rights Commission claim that Armed Forces Special Powers Act violates the various provisions of United Nations Universal Declaration on Human Rights and many other International Laws. They include violation of the rights of free and equal dignity, non discrimination, life, security, no torture, equality before law, no arbitrary arrests etc. Some of the important aspects of International Laws are given in the succeeding paragraphs:-
4. International Covenant on Civil and Political Rights (ICCPR). As per provisions of International Covenant on Civil and Political Rights some of the rights of the citizens e.g. right to life, prohibition of torture etc remain non derogable  even in case of emergencies. Armed Forces Special Powers Act violates both derogable and non derogable rights. International Covenant on Civil and Political Rights also guarantees that any person who is arrested has the right to know the reason for his arrest. This provision is also violated by the Armed Forces Special Powers Act as no armed forces authorities are obliged to inform the person the reasons for his/her arrest. International Customary Law. The Armed Forces Special Powers Act violates the United Nations Code of Conduct for Law Enforcing Officials in terms of use of force including use of fire arms in addition to the various other provisions which are repetitive of similar provisions in other international laws.

Legal Analysis of Armed Forces Special Power Act 

5. In depth analysis of Armed Forces Special Powers Act brings out that the arguments of various human rights organisations on the act being illegal are biased and are misinterpreted. Analysis of the act brings out the following facts:- 
1. Legality of the Act.     Armed Forces Special Powers Act was enacted by the Parliament in 1958 as per the procedures and powers invested on it by the Indian Constitution. Hence this act is absolutely legal. The legality of this act has also been upheld by the Supreme Court in it’s verdict in the case of Naga Peoples Movement of Human Rights versus Union of India, challenging the legality of the act on 27 November 1997.
2. Misunderstanding of Armed Forces Special Powers Act. A large portion of population does not have a clear understanding of the act. All actions of human rights violation including those by police organisations, assam rifles and other paramilitary forces are also thought to have occurred due to this act.
   Interpretation of Special Power.The term “Special Power” in the name of this act is often misunderstood and misinterpreted. There is no special power vested to the armed forces through this act. All provisions of section 4 of this act are vested to the police authorities even in peace time. Police can also arrest a person without a warrant when the person is accused of committing a cognisable offence. History has numerous accounts of killing of public by use of force including fire arms by the police in order to maintain law and order in the areas not even declared as disturbed areas. If these actions of police are not violation of human rights, how can armed forces be blamed to have violated the human rights while acting for the same reasons that too in a much more difficult situation.
3. Applicability of Civil Power. Even when an area is declared as disturbed area, the civil power continues to function. This act does not displace civil power of the state by the armed forces. There is no mention of any of the rights of the citizens being abrogated or suspended in the disturbed areas. The public continue to enjoy all rights and privileges guaranteed to them by the constitution without any hindrance. Hence, allegations against such rights do not stand to any logic.
4. Violations of the Constitutional Rights. “The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the act, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the constitution”  as per opinion of the Supreme Court of India. It must be understood that armed forces are only called to deal with the internal security or the law and order situation when all other instruments of the civil power fail to execute their tasks. Armed Forces Special Powers Act does not empower armed forces to shoot anywhere anytime. Firing is resorted to only as a last resort to ensure safety of the citizens or for the self defence. There are clear orders on “No first use of firearms” to the armed forces.  
5. Minimum Use of Force. Armed forces always use minimum possible force required for effective action against the person/persons acting in contravention of the prohibitive laws. This aspect is also reflected in the directions of the Supreme Court on the subject.
   1. Arrest. Any person arrested by the armed forces are handed over to the nearest police station as soon as possible, so that they can be produced before a magistrate within 24 hours of his arrest, less the time required for journey from the place of arrest to the court of magistrate. The armed forces also hand over a note to the police describing the circumstances under which the person was arrested. A medical certificate on the health of the arrested person from an authorised government medical authority also accompanies the arrested person.  This procedure negates any misuse or discrepancy in the procedure laid down by the law on the subject including use of force during the period of detention under military authorities.
   2. Search and Seizures. All actions of search and seizure are carried out after due deliberation. There are strict orders on involving the representatives of the police and villagers while conducting any cordon and search operations. This ensures transparency in the conduct of operations. A “No claim” and “No damage” certificate is also obtained by the armed forces after conduct of such operations from the village head or the representative of the civil administration. If there is any damage, suitable compensation is provided by the government. In case of any violation of any procedure or the human rights by any members of the armed forces they are investigated and suitable disciplinary actions are taken against the culprits.
   3. Do’s and Don’ts. An exhaustive list of Do’s and Don’ts has been issued by the Army Headquarters which are followed in letter and spirit while operating in low intensity conflict operations environment. These guidelines have statutory status and any violation of these rules is liable to be tried by the law.
   4. Constitutional Remedy. It is alleged that the citizens residing in the disturbed area have no constitutional remedy as guaranteed by section 32 of the constitution. This is untrue. The only safeguard provided to the armed forces in Armed Forces Special Powers Act is that the sanction of the Central Government is required to file a suit against a person who has committed a crime including violation of human rights.  If the crime has actually been committed, the Central Government cannot deny sanction as it has to give reasons for its decisions. It must not be forgotten that wherever Armed Forces Special Powers Act has been enacted, the area has been affected by the separatist forces. The safeguard to the armed forces as provided in the section 6 of Armed Forces Special Powers Act is necessary to prevent vindictive approach towards the security forces by the separatist forces.
   5. Immunity to Armed Forces. It is misunderstood or misinterpreted that the members of the armed forces acting under Armed Forces Special Powers Act are provided absolute immunity for all their actions. This is not true. They are provided immunity only for the actions which have been carried out in good faith while performing their duties. No crime can be committed in good faith hence, this act does not provide any protection against any crime or to the criminal. Any actions outside the law are crimes and are dealt with as per provisions of the laws.
6. The analysis of the facts suggests that there is not much of truth in the facts as are tried to be brought out by various human rights organisations. This act as a legal provision is in no way responsible for human rights violations. It is the misinterpretation and non understanding of the act which make some people and organisation to believe that this act is illegal and is responsible for all human rights violations in low intensity conflict environment. In actuality much more human rights are violated by the police forces in terms of torture, unlawful detention, custodial deaths etc.  The demands to repeal the Armed Forces Special Powers Act on the grounds of the act being illegal do not stand to any logic. However, there are certain lacunae in the Armed Forces Special Powers Act which needs to be addressed.

CHAPTER VI

RECOMMENDATIONS ON REPEAL OF ARMED FORCES SPECIAL POWERS ACT

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1. There is a huge demand by various human rights organisations to repeal Armed Forces Special Powers Act as brought out in the previous chapters of this paper. Though, their contention of this act being a draconian or illegal is not true, there are some shortcomings in the act which needs to be considered.

Shortcomings of Armed Forces Special Powers Act

2. Name of the Act.
3. The preamble of the law, which reads “An act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the state of xxxx” itself is wrong. The words “Special powers” in the name of the act raise eyebrows of people. In actuality there are no special powers vested in this act. All powers provided in the act are normal peace time powers vested to the police forces. Police authorities can also arrest a person without a warrant and carry out all actions as enumerated in the act, when a person is accused of committing a cognisable offence.
4. Another shortcoming in the name of the act is the specification of the area where it is applicable. These names at times give a feeling of alienation to the public of that area. This aspect also needs to be looked into.
5. The power granted in Section 4 of the act can be executed even by a non commissioned officer which includes even a lance naik. In effect any member of the armed forces other than a sepoy becomes very powerful. This provision of the act is very vehemently opposed. It is considered that the definition of “Disturbed area” given in the act is vague.
6. As per provisions of this act either state or the Central Government is empowered to declare an area as disturbed area. The Central Government may overrule the state government in case of any dispute between the two. This provision at times creates problems. As per direction of the Supreme Court, the provision of Criminal Procedure Code, governing search and seizure have to be followed during the course of search and seizure i.e. operations directly affecting the public. The same has not been specified in the act.
7. As per provision of this act a person arrested and taken into custody by the armed forces should be handed over to the officer in charge of the nearest police station “With least possible delay”. This provision can be misinterpreted and may result into acting outside the law.

Review of Armed Forces Special Powers Act

8. Demand for repeal or review of Armed Forces Special Powers Act has been made since long. Various political leaders also have made promises from time to time to review the act. However, no concrete steps were taken in this direction till visit of the Prime Minister to Manipur in November 2004. During this visit the Prime Minister promised to consider the demand of various organisations on the subject. Accordingly a commission was set up by the Central Government on 19 November 2004 to recommend necessary changes in the existing act or to replace the act with a more humane act. The commission was headed by Mr BP Jeevan Reddy, former judge of the Supreme Court with four other members. The commission submitted its report to the Central Government in August 2005.  The government is yet to take any decisions on the recommendations made by the commission. Some of the important aspects of the recommendations of the commission are as follows:-
1. Armed Forces Special Powers Act should be repealed. However army should remain functional as at present.
2. Unlawful Activities (Prevention) Act, 1967 as amended in 2004 should be made the only law to deal with all types of internal security problems including insurgency and terrorism.

A chapter should be added to facilitate the employment of armed forces in the existing Unlawful Activities (Prevention) Act, 1967 as amended in 2004. The draft chapter was included in report of the commission.

Recommendation on Repeal / Review of Armed Forces Special Powers Act

9. The committee set up by the Central Government to review the Armed Forces Special Powers Act as discussed at paragraph 8 above visited various places across the country and sought opinion of various sections of people and organisations. All law enforcement agencies including army, assam rifles, central police organisations and most of the governments of the North Eastern states expressed their view in support of the retention of this act. It was considered an essential tool to deal with the deteriorated security situation of the region. These organisations were in favour of retaining the act in its present form or be replaced with some similar act granting similar powers to the security forces. However, all representatives of the human rights organizations were in favour of the total repeal of this act due to various reasons discussed earlier in this paper.
10. An opinion poll was also conducted at Defence Services Staff College to seek the opinion of army officers. 83.75 percent of officers were of the opinion that this act should not be repealed. Alternatively, it may be replaced with any other act that gives adequate power to deal with the impending situations and also provide legal protection to the members of the armed forces while executing their duties. Only 16.25 percent of officers felt that this act should be repealed as there are other sufficient legal provisions to deal with the situation. In a poll conducted in Sivasagar district of Assam and Zunheboto district of Nagaland, majority of the people favoured repealing of this act.
11. Mr Soli Sorabji, eminent personality in the field of law and former Solicitor General of India, during an interaction brought out that there were certain loopholes in this act, however after implementation of Supreme Court directions these problems have been addressed.
12. Based on the various factors as discussed above in this paper, the following recommendations are made to facilitate employment of armed forces for internal security duties to deal with insurgency, terrorism and proxy war in various parts of the nation to ensure that the territorial integrity of the nation remain intact, law and order is maintained and armed forces also function within well defined legal parameters so as to ensure that human rights are always respected and there are minimum inconvenience caused to the public:- 
1. The Armed Forces Special Powers Act in its present form should be repealed.
2. A new act should be enacted to facilitate employment of armed forces in low intensity conflict operations environment. The new act is recommended to be formulated due to the following reasons:-
1. The primary role of the armed forces is to prepare and deal with external threats to the territorial integrity of the country and not to deal with internal security problems.
2. Armed forces do not have any authority/powers to deal with internal security problems.
3. All laws which have provisions of dealing with low intensity conflict operations environment are formulated as per the requirements of the police forces and are not suitable for employment of armed forces keeping in mind the role, organisation, training and public image of armed forces and the reasons of very existence of the guardians of the boarders.
4. There is a strong opinion of the separatist forces, the population and media exploited by the same forces against the employment of armed forces in low intensity conflict operations in various parts of the country. The reasons for the same are obvious that the armed forces have always ensured that their mal-intentions did not succeed. Therefore, there is always an attempt by these anti national elements to put the armed forces in bad light. Hence, armed forces when employed in low intensity conflict operations must be provided with certain degree of protection against false allegations. The recent case of two ladies killed in Shopian[xxii] in Jammu & Kashmir is the live example as to how various sections of the society including doctors and lawyers try to fabricate the stories against the security forces. This fact is also suggestive of the requirement of a separate act.
5. The recommendations of the committee headed by Mr BP Jeevan Reddy to review the armed forces special power act has been criticised by Amnesty International and other human rights organisations and have been labelled as “One step forward and two backwards”.

The following aspects are recommended to be kept in mind while formulating the new act:-

1. The name of the act should be on the lines of “Armed Forces Internal Security Powers Act” or “Grant of Internal Security Powers to the Armed Forces”.
2. The act should be applicable to all parts of the country declared as disturbed area.
3. It should have provisions to include army, navy and air force in the name “Armed forces” and flexibility of either all acting as land forces or acting in their respective roles.
4. There should be provision of using the air and naval power to deal with certain specific situations after specific sanction of the Central Government on case to case basis.
5. The authority to declare an area as disturbed area should only lie with the Central Government. The affected state government should only make the recommendations to the Central Government. In case of difference in opinion, decision of the Central Government should be final.
6. The term “Disturbed Area” should very clearly and concretely defined.
7. When necessary the act should be enacted for a period of six months. A review of the situation should be carried out jointly by the state and the Central Government before expiry of six months. If required it should be extended for another period of six months. At any time, if it is felt that, the situation does not warrant employment of armed forces, this act should be withdrawn by an order of the Central Government.
8. The provisions contained in section 4 of the existing act should be retained. However, only officers, junior commissioned officers and the non commissioned officers not below the rank of “Havildar” or equivalent should be authorised to execute those powers.
9. There should be a provision of a person arrested and taken into custody by the armed forces to be handed over to the officer in charge of the nearest police station as soon as possible so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.
10. The safeguard as provided in section 6 of the existing act should be retained. However, it should be mentioned that any act outside the law such as molestation, rape, torture and theft shall not be covered under this provision.
11. If any destruction of property is required to be carried out to deal with certain inescapable situations, then only a commissioned officer should be authorised to do so. The victim should suitably be compensated after the completion of the operations.
12. The Do’s and Don’ts issued by the Army Headquarters should suitably amended and form part of the act.
13. Involvement of minimum one representative of the civil administration should be made mandatory in any planned operation involving civil population.
14. The provision of Criminal Procedure Code governing search and seizure should be applicable in all operations involving civil population or property.
15. There should be a provision wherein if a complaint containing an allegation about misuse or abuse of the powers conferred under the act or violation of human rights is received, the same should be thoroughly inquired into. If on enquiry, it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding against the accused should be granted.

CHAPTER VII

RECOMMENDATIONS FOR PREVENTION OF HUMAN RIGHTS VIOLATIONS BY ARMED FORCES IN LOW INTENSITY CONFLICT ENVIRONMENT

General

1. The armed forces when called upon to maintain law and order in disturbed areas come in contact with the public and sometimes unavoidably, they have to use some force.  During performance of such duties sometimes human rights violation may take place and sometimes false accusations of human rights violation are also made by various sections of the societies. The reasons for these could be numerous. The security forces are thus required to handle internal security duties with firmness and courtesy so that its reputation for being just, impartial, friendly and professionally competent is maintained at all times and basic rights of the public also not violated.  Some of the recommended guidelines for prevention of human rights violations are given in succeeding paragraphs.

Actions by the Government

2. Political Process to Combat Insurgency.      Security forces are no answer to insurgency, though they are capable of bringing the security situation under control. Political processes have to be initiated to eradicate the problem from the root. This process has to be taken at the state/regional, national and international levels by the governments at various levels.
3. Restrictive Use of Army in Aid to Civil Authorities.      The law and order problem of a state is the responsibility of the state government and the civil administration. Seeking the assistance of the armed forces should be avoided as far as possible.  This besides being detrimental to the operational preparedness and efficiency of the armed forces in their primary role also sets in complacency on the part of the civil administration. The para military forces, being more suitable to deal with civil affairs, should be modernized in terms of training and equipment to be able to deal with all internal security problems.
4. Strengthening of Civil Administration and Police.   Civil administration and police should not be allowed to be non functional in the disturbed areas. They need to be strengthened so that they can form part and assist the armed forces in conduct of various operations as they are better informed with the pulse of the people and the situation. They can very effectively supplement the efforts of armed forces in controlling the situation. This will also increase the accountability of all functionaries in the areas and bring transparency in the actions carried out by the armed forces. 
5. Integration of Intelligence Agencies.  To ensure success in counter insurgency operations, integration of all intelligence agencies is a must. This will facilitate conduct of timely and surgical operations thereby reducing the risk of collateral damages including human rights violations.
6. Legal Provision of Interrogation by Armed Forces.   There should be a legal provision of carrying out interrogation of suspects by the armed forces authorities whenever required to gather intelligence as well as prevention of possible damages/loss in future due to terrorist/insurgent activities. While making such provisions it should be ensured that other provisions of the law of the land are not violated. Interrogation in presence of representatives of civil administration and police will ensure the accountability and transparency of such action.
7. Media Management. It is imperative for the government to make media responsible and accountable for its actions. Any wrong/biased/unauthentic reporting against the government/security forces should be immediately investigated and necessary action as required should be initiated.

ACTIONS BY ARMED FORCES

8. Do’s and Don’ts.  While operating in low intensity conflict operations environment Do’s And Don’ts issued by Army Headquarters must be adhered to very strictly as per directions given by the Supreme Court.
9. Training.    Units must be thoroughly trained before their induction into low intensity conflict operations environment.  The training syllabus in addition to tactical aspects must emphasise on respect for human rights/humanitarian laws and how to deal with the public. It should also cover the aspects of Armed Forces Special Power Act thoroughly so that all ranks of the armed forces are aware of the provisions and limitations of the law ensuring that the law is not misused and also the rights of the public are respected.  Some of the aspects relating to human rights which need to be included in training are:-
1. Concept of Human Rights, International Declarations on Human Rights and Provision of Human Rights in Indian Constitution.  Most of the cases of human rights violation take place due to inadequate knowledge of armed forces personnel specially of lower ranks on the subject. This subject must form part of all possible courses/cadres/training activities at all levels upto category A establishments to ensure that all ranks understand the provisions of human rights and consequences of violations of the same.
2. Armed Forces Special Powers Act.  All ranks must be made to understand all provisions of this act or any other similar act if enacted in future, thoroughly by imparting instructions on the subject and briefings from time to time. It should also be ensured that all ranks are aware of Do’s and Don’ts on the subject.
   Psychological Conditioning of Troops.  All ranks must be trained to understand the nature of operations in low intensity conflict environment and conditioned to operate and undertake difficult task in such environment.  They should be mentally prepared to not to get provoked by the militants and retaliate thereby causing collateral damages.
3. Interrogation Techniques.  Technique of interrogation and screening of local population should be imparted to selected persons and they should only be tasked to carry out these tasks. Most of human rights violations occur when inappropriate and unauthorised methods of interrogation are applied to extract information.
4.   Training on Handling of Media.   A selected group of persons should be trained in handling of media to ensure that the media is used in appropriate manner to highlight own achievements and also prevention of wrong reporting/interpretation by the media.
10. Surgical Operations.  Carrying out of surgical operations should be encouraged to eliminate the miscreants with minimum loss of life and property.  It must be understood by all ranks that fire for effect is to incapacitate and not to kill as far as possible while dealing with civil population. The tendency to over react can be checked to a large extent by psychological conditioning of troops and training.
11. Intelligence Net Work. A sound intelligence network must be established in the area of responsibility.  Various intelligence agencies operating in the area must be integrated at all possible levels.  Units must cultivate reliable informers for intelligence gathering.
12. Investigation of Allegations. Any case of allegation of violation of human rights by the members of the armed forces must be investigated promptly and fairly.  Tendency to save the guilty (if found guilty) must be avoided at all costs. Discipline must not be diluted under any circumstances. The guilty should be awarded exemplary punishment which should also act as deterrence to others.
13. Change in Mind Set.    Some changes are required in the mind set of armed forces, specially the senior officers in the field of conduct of operations in low intensity conflict operations environment. The following changes are recommended to promote respect for human rights:-
    1. Number Game.  Sometimes competence of units is judged based on the number of personnel killed/captured and number/quantity of captured weapons/ammunition.  This must stop immediately to help prevention of human rights violation.
    2. Compulsion to Show Quick Results.  Due to compulsion to show quick results, units sometimes start operating outside the law.  Units must be given adequate time to settle down and area familiarisation. 

       Minimum Pressure for Execution of Tasks.  The members of armed forces undergo tremendous stress while operating in low intensity conflict operations environment due to various professional and social causes. In addition, units are sometimes given orders to do a particular job at any cost.  Such orders ultimately end up with some human rights violation.  Therefore, there should be minimum pressure on the units to carry out their tasks.

    3. Transparency of Operations.  The transparency of operations must be ensured by involving the civil administration and media to the sensitive operations.
14. Conduct of Operations.    Surgical operations based on hard intelligence should be the norm in low intensity conflict operations environment. Skill of sharp shooting must be developed to avoid collateral damages. Local police must form part of all operations.  Elements of local administration and media should also be involved as far as possible to ensure transparency of the operations. In addition to the Do’s and Don’ts on the subject, the following aspects need to be kept in mind when conducting operations:-
    1. Village elders should be incorporated as eye witnesses during conduct of search operations.
    2. In chance encounters, response from troops should be guarded and only directed at identified hostile or miscreants.

       When detentions are made screening must be done at the earliest and innocent civilians allowed to go away.

    3. Even in the event of casualties to own troops retaliation or repression must be avoided at all costs.
    4. Do not indulge in indiscriminate firing and do not use excessive force under any circumstances.
    5. Do not ill treat anybody, women and children in particular.
15. Safeguard Against Fabricated Allegations.  Following actions could be

taken to safeguard against fabricated allegations:-

1. Ensure that police representatives are present during operations involving civil population.
2. Incorporate women police personnel while searching villages/houses.

   Ensure the presence of villages elders during search operations.

3. Ensure that a ‘No claim’ certificate is obtained at the end of search operations from the personnel concerned, duly countersigned by the village authorities.
4. Hand over arrested personnel to civil police only after medical     check-up.  Also obtain a handing over certificate from the police and a copy of the first information report lodged.
5. All arrests/releases must only be made through the civil police.
16. Improvement of Media Handling.  The following measures are suggested:-
1. Specialised training for officers in media handling.
2. Press briefings must be held regularly.  The reasons for army actions must be explained to the press.  There is also a need for regular press releases.

   Institute measures to remove fear of the militants from the press, the vernacular press in particular.

3. Involve the press in operations as far as possible.
4. Disseminate information truthfully.

CHAPTER VIII

CONCLUSION

1. Employment of armed forces in low intensity conflict operations is not likely to end soon in the foreseeable future. Instead, there is a possibility of increasing the same due to the spread of Left Wing Extremism in the country. In such a situation both the armed forces and civil agencies should be geared up to continue to function under the most complex situation of low intensity conflict operations environment.
2. There is no denial that some human rights violations have taken place in the areas where armed forces are deployed. However, the reasons for the same are neither the presence of armed forces nor the Armed Forces Special Powers Act. The armed forces are proud of their rich traditions of professionalism and maintenance of a very high degree of discipline. Various concrete actions are also being taken to ensure that the organisation conti