A TERM PAPER ON

ARMED FORCES SPECIAL POWERS ACT

REVIEW OF ARTICLE 21 AND 22 AND HUMAN
RIGHT ABUSE IN NORTH EASTERN INDIA
SOCIOLOGY-I

Submitted ByYash Maheshwari

214045, 1st Year
WBNUJS

INTRODUCTION

It takes us a long time to raise our children. Then, when they grow up, they are shot. This
cannot go on. We no longer want to look for our children in the morgue.
Yumlembam Mema, womens rights activist in Manipur.1
The Armed Forces (Special Powers) Act of 1958 (AFSPA)2 is one of the tyrannical
legislations which exists in India. AFSPA is outlined on a 1942 British colonial ordinance that
was intended to contain the Indian independence movement.3 Under this Act, all security
forces are given unrestricted and unlimited power to carry out their operations, once
insurgency is declared. Even a non-commissioned officer is granted the right to shoot to kill
based on mere suspicion that it is necessary to do so in order to maintain the public order.4
The AFSPA5 gives the armed forces wide powers to shoot, arrest and search, all in the name
of "aiding civil power." It was originally applicable only to the North Eastern states of Assam
and Manipur6 but was amended in 1972 to extend to all the seven states of Assam, Manipur,
Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland.7 The enforcement of the
AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting
in North eastern India by security personnel. This enactment is looked to be defended by the
Government of India, on the supplication that it is obliged to stop the North East states from
seceding from the Indian Union. There is a solid development for determination toward
oneself which goes before the creation of the Indian Union.
1 "The Killing of Thangjam Manorama Devi". Human Rights Watch. Aug 2009.
http://www.hrw.org/reports/2008/india0908/3.htm
2 The Armed Forces Special Powers Act, 1958.
3 The Armed Forces (Special Powers) Act- Repressive Law, Combat Law: The
Human Rights Magazine, vol. 2(1), April/May, 2003. Also Amnesty International,
Document - India: Briefing on The Armed Forces (Special Powers) Act, 1958,
ASA20/025/2005, May 9, 2005,
http://www.amnesty.org/en/library/info/ASA20/025/2005
4 4, The Armed Force (Special Power) Act, 1958
5 Supra footnote 2
6 Ibid.
7 The Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972

REVIEW OF AFSPA AND HUMAN RIGHTS

There are several cases pending which challenge the constitutionality of AFSPA before The
Supreme court of India. The Delhi High Court found the AFSPA to be constitutional in
Indrajit Barua vs The State of Assam And Anr.8 It is extremely surprising that the Delhi High
Court found the AFSPA constitutional it clearly repeals some of the most important
constitutional provisions. This paper presents the review of the two most important article of
the Constitution of India which guarantees that basic human rights are properly followed.

Review of Article 21
Article 21 guarantees the right to life to all people. It reads, "No person shall be deprived
of his life or personal liberty except according to procedure established by law."9 It was
clearly held in Maneka Gandhi vs Union Of India10 that "procedure established by law
means a "fair, just and reasonable law".
The 4(a)11 accord armed forces personnel with the power to shoot to kill arbitrarily which
clearly violates the right to life.12 This law is not fair and reasonable as it confers armed
forces with a right to use an excessive amount of force. The offenses under 4(a) are:
"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 fire-arms, ammunition or explosive
substances".13 None of the offences stated above necessarily involve the use of force which
8 Indrajit Barua V. The State of Assam And Anr, AIR 1983 Delhi 513
9 Article 21, The constitution of India
10 Maneka Gandhi v. Union Of India ,1978 AIR 597, 1978 SCR (2) 621
11 The Armed Force (Special Power) Act, 1958
12 Article 21, The Constitution of India
13 4(a) , The Armed Force (Special power) Act, 1958
3

clearly states that the armed forces are thus allowed to retaliate with powers which are
grossly out of proportion with the kind of offence.

There are many incidents which pictures how the Border Security Force (BSF) and army
personnel abuses the powers vested in them in the North East which clearly results in human
right violations. In one incident in April 1995, a villager in West Tripura was asked to stop by
a soldier when he was reading near a border outpost. The villager did not stop and the soldier
shot him dead .Considerably more grotesque were the killings on 5th March 1995 in Kohima
when The Rastriya Rifles mistook the sound of a blast from tire as a bomb explosion and
started shooting randomly in the town. The atrocities went on for more than one hour,
bringing about the demise of seven blameless innocent people, 22 were likewise genuinely
harmed. Those slaughtered included two young ladies and 7 minors. This barbarity exhibits
the level of strain pervasive in the North Eastern India.

Review Of Article 22
Article 22 of the Indian Constitution states that "(1) No person who is arrested shall be
detained in custody without being informed, as soon as maybe, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice. (2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
magistrate."14 The remaining sections deal with limits on these first two sections in the case
of preventive detention laws. On its face, the AFSPA is not a preventive detention law
therefore the safeguards of (1) and (2) must be guaranteed to people arrested under the
AFSPA.
(2) was the subject of much debate during the framing of the Indian Constitution. There
was argument over whether the time limit should be specified or whether the words "with the
least possible delay" should be used. Dr Ambedkar, argued that "with the least possible delay"
would actually result in the person being held for a shorter period of time, whereas "24
14 Article 22, The constitution of India
4

hours" would result in the person being held for the maximum time of 24 hours.15 It was
observed that a specified time period constitutes a greater safeguard against exploitation.
Under the AFSPA, the use of "least possible delay"16 language has allowed the security forces
to hold people for days and months at a time. In Nungshitombi Devi v. Rishang Keishang17,
the petitioner's husband was arrested by CRPF on 10th January 1981, and was missing till 22nd
February 1981. He was arrested under 4(c).18 The court found this delay, even under 519 to
have been illegal and too long. In the case of Civil Liberties Organisation (CLAHRO) v. PL
Kukrety, 20, people arrested in Oinam, a village in Manipur were held in custody for 5 days
before being presented before magistrate which clearly violates the provision of Article 22.
Under AFSPA, arbitrary and unconstitutional detention of people is clearly practiced by army.
Even if the provisions of AFSPA are defended on the grounds that it is a preventive detention
law, it would still result in violation Article 22.21 Under preventive detention laws ca person
can be arrested for up to three months.22 For any detention longer than three months, review
by an Advisory Board is necessary.23 Also, as stated in Article 22(5), When any person is
detained under any law providing for preventive detention, the authority making the order
shall communicate to such person the grounds on which the order has been made as soon as
possible and shall afford him the earliest opportunity of making a representation against the
order.24 But AFSPA provides that a person can be arrested by the armed forces without a
15 Vol IX, Constituent Assembly Debates (Proceedings) ,
http://164.100.47.132/LssNew/constituent/vol9p8.html
16 5, The Armed Force (Special Power) Act, 1958
17 Nungshitombi Devi v. Rishang Keishang (19S8) 2 Gauhati LR 137
18 The Armed Force (Special Power) Act, 1958
19 Ibid.
20 Civil Liberties Organisation (CLAHRO) v. PL Kukrety (1988) 2 GLR 137
21 The Constitution of India
22 Article 22 (4), The Constitution of India
23 Article 22 (4) (a), The Constitution of India
24 Article 22(5), The Constitution of India
5

warrant and on the mere suspicion that they are going to commit an offence.25 The armed
forces are not even obliged under AFSPA to communicate the grounds for the arrest and there
is no provision of advisory board. These arbitrary and unwarranted arrests clearly violate
fundamental rights.26
The armed forces in the North East have systematically tortured the people they arrested
under the AFSPA27. The International Covenant on Civil and Political Rights (ICCPR) clearly
prohibits torture and terms it as a non- derogable right.28 During Operation Bluebird, gross
abuses of this right and tyrannical atrocities were committed by the Assam Rifles in Oinam
village in Manipur. Within a few days of operation, there were reports of villagers being
subjected to all kinds of cruel, inhuman and degrading treatment by the Assam Rifles.29The
armed forces retaliated by perpetuating atrocities on the village people of Oinam.30 The
Amnesty International report found that more than 300 villagers claimed that they were
beaten and tortured.31
The following extracts are taken from "OPERATION BLUEBIRD" AND THE STRUGGLE
FOR LEGAL JUSTICE.32

25 4(c), The Armed Force (Special Power) Act, 1958

26 Article 22(5), The Constituion of India.
27 Supra footnote 2
28 7 , International Covenant on Civil and Political Rights (ICCPR) , 999 UNTS
171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967)
29 DOCUMENT - INDIA: TORTURE, RAPE AND DEATHS IN CUSTODIAL INDEX: ASA
20/06/92
30 John Parrat, Wounded Land: Politics and Identity in Modern Manipur, Mittal
Publications
31 Supra footnote 29
32 Naga Peoples Movement for Human Rights (NPMHR), Based on the 2nd & 3rd
reports of The Co-ordinating Committee on Oinam Issue (COCOI).
http://www.npmhr.org/index.php?
option=com_content&view=article&id=84:qoperation-bluebirdq-and-thestruggle-for-legal-justice-qcrying-for-justiceq&catid=18:npmhr
6

From August 22, 1988 the Sessions Judge at Imphal, Shri C. Upendra Singh, began
recording evidence of the NPMHR witnesses. Here are extracts of what they told the court:
I was taken to Oinam Post and beaten severely during interrogation I was beaten with
sticks and iron rods all over my body and given electric shocks in my private parts

Ng. Khailang ,Ngamju Sha Village I was arrested by the Assam Rifles on 30th August 1987 and taken to their camp till 3rd
September 1987. On 4th September I was taken to a Magistrate at Imphal and forced to put
my signature on a false affidavit prepared by Assam Rifles.

L. Jonathan, Phuba Thapham Village

I was beaten very badly outside the Church, I got a severe injury in my pelvic bone and
legs. I can no longer walk or sit.

Thaiso, Sorbung Village

Ten houses were forcibly dismantled by the Assam Rifles in my village the Commanding
Officer C. P. Singh was himself in the village when they dismantled houses I saw one
villager, Sosang, being badly tortured. Later he was found dead.. 33
The above mentioned witness statements are clear example of how gruesome crimes and
tortures are committed by armed forces in areas of insurgency.
In one more operation named "Operation Rhino", Rajputana Rifles surrounded the village of
Bodhakors, in Assam on October 4, 1991 under similar circumstances.34 During Operation
Rhino, eyewitness accounts that an extensive house to house searched was conducted during
which women were sexually harassed, raped and men were taken to interrogation camps.35
33 Ibid.
34 No End in Sight: Human Rights Violations in Assam, Vol. 5 Issue 7, Human
Rights Watch
35 Khatoli Khala,

The Armed Forces Special Powers Act (AFSPA) and Its Impact on Violence

Against Women in Nagaland

They were beaten up and kept without food or water contradicted official reports on the
events leading to the death of people in army custody.36
The aforesaid operations and arrests by army under AFSPA clearly picture the violation of
human rights and Article 21 and 22 of constitution of India in areas of insurgencies.
Thus, an immediate review of AFSPA is required.

CONCLUSION
The State has real and legitimate reasons and is justified in taking all due measures to combat
terrorism to protect their civilians, maintain rule of law and to bring the perpetrators of such
acts to justice. But justice should always be served in reasonable and humane manner. Society
should always be looked upon at the first place while serving justice.
Act like AFSPA needs a more thorough review as it has failed to serve its basic purpose and
is rather being misused by law enforcing agencies.
Manipur is an appropriate example as it was declared an area of insurgency in 1980 and as
per the Manipur CM Ibobi Singh, over 8,000 innocent civilians and over 12,000 members of
armed opposition groups and security forces have lost their lives.37 The of Armed groups of 4
from 1980 has grown to 20 in 2014.
Aforesaid facts clearly indicate that AFSPA has failed and gross human right violations have
been practised under its hood. If still the Indian Government contends that North- East India
can only be governed through continuation of AFSPA, then it should ensure that all personnel
acting in a law enforcement capacity should be trained according to the UN Code of Conduct
36 A Report on Human Rights Violations and State Terrorism in Assam During
Operation Rhino, September 1991, Manav Adhikar Sangram Samiti (MASS), pp.
9,12-13.
37 Ibobi unhappy over mushrooming growth of ultras' outfits, The Sangai
Express, Imphal,16 June 2003
8

for law enforcement personnel.38 Law enforcement officials shall respect and protect human
dignity and maintain and uphold the human rights of all persons.39 The instructions and
training given to the armed forces should be available to the public at large so that complete
transparency can be established rendering public accountability and enforcement of human
rights possible.
This could surely help protect the residents of the North East who are currently trapped in a
vicious web between insurgents and the military.

BIBLIOGRAPHY
Books Used
1. John Parrat, Wounded Land: Politics and Identity in Modern Manipur, Mittal
Publications
2. Low Intensity Conflicts in India: An Analysis, Vivek Chaddha, SAGE
Publications India, 2005
3. Harsh Dobhal, Manipur in the Shadow of AFSPA: Independent People's Tribunal
Report on Human Right Violation in Manipur, Socio Legal Information Cent,
2009
4. Khatoli Khala, The Armed Forces Special Powers Act (AFSPA) and Its Impact on
Violence Against Women in Nagaland
5. Basu, Durga Das, Introduction to the constitution of India, Agra : Wadhwa and
Company, 2001
38 As per Code of Conduct for Law Enforcement Officials Adopted by
General Assembly resolution 34/169 of 17 December 1979,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/LawEnforcementO
fficials.aspx
39 Article 2, Code of Conduct for Law Enforcement Officials
9

 Cases Cited

1. Indrajit Barua V. The State of Assam And Anr, AIR 1983 Delhi 513
2. Maneka Gandhi vs Union Of India ,1978 AIR 597, 1978 SCR (2) 621
3. Nungshitombi Devi v. Rishang Keishang (19S8) 2 Gauhati LR 137
4. Civil Liberties Organisation (CLAHRO) v. PL Kukrety (1988) 2 GLR 137

Statues Used
1.
2.
3.
4.
5.

Article 21, The Constitution of India

Article 22, The Constitution of India
The Armed Force (Special Power) Act, 1958
Code of Conduct for Law Enforcement Officials, 1979
7 , International Covenant on Civil and Political Rights (ICCPR) , 1966

Reports Used
1. No End in Sight: Human Rights Violations in Assam, Vol. 5 Issue 7, Human
Rights Watch
2. A Report on Human Rights Violations and State Terrorism in Assam During
Operation Rhino, September 1991, Manav Adhikar Sangram Samiti (MASS)
3. DOCUMENT - INDIA: TORTURE, RAPE AND DEATHS IN CUSTODY
4. Naga Peoples Movement for Human Rights (NPMHR), Based on the 2nd & 3rd
reports of The Co-ordinating Committee on Oinam Issue (COCOI).
5. The Killing of Thangjam Manorama Devi". Human Rights Watch. Aug 2009.
6. The Armed Forces (Special Powers) Act- Repressive Law, Combat Law: The
Human Rights Magazine, vol. 2(1), April/May, 2003.
10

7. Amnesty International, Document - India: Briefing on The Armed Forces

(Special Powers) Act, 1958

Other Readings
1. Constituent Assembly Debates, 1949
2. The Sangai Express, Imphal

11