The Armed Forces (Special Powers) Act 1958: “Procedure established by law”?

Khangembam Chonjohn, Former Member, Manipur Human Rights Commission & Former General Secretary, Civil Liberties & Human Rights Organization, Manipur, India

Amid the clash of arms, laws are not silent. They may be changed, but they speak the same language in war and peace. Would law speak in a different language in internal disturbances? Law addresses all with one mouth or voice. Whenever, there is a doubt between liberty and bondage, the decision must be in favor of liberty. So says the digest.
–Supreme Court of India in State of Punjab v. Sukhpal Singh

Law in derogation of fundamental rights is void under the Constitution of India. Article 13(2) of the constitution states that, ¡§The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.¡¨

Section 4 of the Armed Forces (Special Powers) Act 1958 (AFSPA) authorises armed forces officers to form an ¡§opinion¡¨ about when to ¡§to fire upon or otherwise use force, even to the extent of causing death, against any person¡¨. Can this provision be in compliance with the constitution? Or is it a violation of article 13(2)? Article 21 of the constitution requires that, ¡§No person shall be deprived of his life or personal liberty except according to procedure established by law.¡¨ Can this be understood as ¡§procedure established by law¡¨ as required by article 21?

The Supreme Court of India has held that, ¡§Procedure established by law means procedure established by lex, i.e. State made law and not just naturale.¡¨ (Gopalal v. State of Madras, AIR 1950 SC 27). But the contrary view of Justice Fazal Ali, which appears saner than the majority in that judgment, was that ¡§procedure established by law¡¨ suggests ¡§certain principles of justice which inhere in every civilized system of law¡¨. The absence of the words ¡§due process¡¨ in article 21 cannot in itself lead to barbaric and arbitrary use of procedure. Procedure established by law within the meaning of article 21 must be ¡§right and just and fair¡¨ and ¡§not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied¡¨. It has now become a settled principle of law that the expression ¡§procedure established by law¡¨ in article 21 must comply with the requirements synonymous with those of the American ¡§due process of law¡¨. Procedural ¡§due process¡¨ has been construed out of the silent zone of article 21 (Meneka Gandhi v. Union of India, AIR 1978 SC 597).

Article 14 of the constitution is a guarantee of not only the general right of equality before law but also fairness, justness and reasonableness in every state action. Any state action–including legislation–held as violative of article 14 must be unconstitutional and void (Union of India v. Tulsiram Patel, AIR, 1985 SC 1416; Satyavir Singh v. Union of India, AIR 1986 SC 555). Again, in its modern expanded meaning article 14 embodies elements analogous to those of ¡§due process¡¨ (E P Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Meneka Gandhi case; and, Ajay Hasina v. Khalid Mujib, AIR 1981 SC 487).

A five-judge Constitution Bench of the Supreme Court has reiterated and reaffirmed the interpretative principle in respect of article 21 made in Bachan Singh case that, ¡§Every facet of the law which deprives a personal of his life or personal liberty would therefore, have to stand the test of reasonableness, fairness and justness in order to be outside the inhibition of Article 21 of the Constitution¡¨ (Bachan Singh v. State of Punjab, AIR 1982 SC 1325). The bench unanimously invalidated section 303 of the Indian Penal Code 1860 (compulsory death penalty for murder committed by a life convict) as violating articles 14 and 21 of the constitution. The Court held that, ¡§These decisions have expanded the scope of Article 21 in a significant way that it is now too late in the day to content that it is for the legislature to prescribe the procedure and for the courts to follow it, that it is for the legislature to provide the punishment and for the Courts to impose it¡¨ (Mithu v. State of Punjab, AIR 1983 SC 473).

The Code of Criminal Procedure 1973 is the established procedural law extended through out India except the State of Jammu and Kashmir. The code has no provisions that allow for punishment by death. Offences under the code made punishable by law are either cognizable or non-cognizable. A person who has committed a cognizable offence may be arrested by the police, but for commission of a non-cognizable offence, no arrest can be made without a warrant from a competent court. No doubt, the act of disobeying a prohibitory order lawfully promulgated by a competent officer at any place within his territorial jurisdiction, whether declared disturbed or not, is a cognizable offence, which is bailable and triable by any magistrate. But the maximum punishment that can be imposed on the arrestee is simple imprisonment for one month, or fine of 200 rupees or both if the disobedience causes obstruction, annoyance or injury to persons lawfully employed; or imprisonment for six months, or a fine of a thousand rupees or both if the disobedience causes danger to human life, health or safety.

Under the established criminal procedural law, award of a death sentence to a convict by the Court of Sessions or the Special Court under the Narcotic Drugs and Psychotropic Substances Act 1985 is exceptional. As a safeguard, the sentence of death shall not be executed unless it is confirmed by the High Court subject to a further remedy of appeal against the sentence of death and stay of execution of the death sentence until the disposal of the appeal. As a further safeguard of the citizen¡¦s right to life, the court is also duty-bound to hear the convict on the question of the sentence; failure to comply would make the death sentence unsustainable. The appropriate government may also suspend, remit or commute the sentence of death, except in the case of a person sentenced to death under the provisions of section 31 A of the Narcotic Drugs and Psychotropic Substance Act 1985.

Capital punishment can be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, and the same may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts. The person sentenced to death shall also have the right to apply to the president of India or the governor of the state to pardon, suspend, remit or commute the sentence of death.

Notwithstanding, the armed forces while acting or purporting to act under section 4(a) of the AFSPA have been ¡¥licensed¡¦ to fire upon or otherwise use force upon persons, even cause death if in the opinion of the officer it is justified to do so after having given a due warning as he may consider necessary. The AFSPA, however, is not a complete code containing any established procedure of law–even of a summary nature–for depriving citizens of the right to life. To the extent that it contains a procedure, this is limited to the opinion of the officer in charge at a given time. Essentially the act holds that the mere suspicion of a military officer may be immediately converted to a conviction for a penal offence punishable with immediate death.

So does the AFSPA, or at least its section 4(a), stand in contravention of article 13(2) read with articles 14, 20 and 21 of the constitution? In asking this question, it is not necessary to be concerned with the upholding of the constitutional validity of the act by the Supreme Court in its 27 November 1997 judgment in Naga People¡¦s Movement for Human Rights v. Union of India (AIR 1998 SC 431:  [1998] 2 SCC 109). Rather, what we as citizens of this country are strictly concerned with is the consequences of the act: fake encounter killings; extralegal, arbitrary and summary executions, and enforced disappearances. None of these need any further test of law: on these alone it can be said that the act must be repealed as in contravention of the Constitution of India and international human rights norms and standards.

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