Sunday, August 7, 2016

WHY SHALL THERE BE AFSPA IF A CIVIL MAGISTRATE CAN ORDER ARMY TO FIRE IN AID TO CIVIL AUTHORITY? IS IT SO? EVERY IAS MUST READ IT

Many Politicians, civil bureaucracy and people have the wrong impression that in Aid to Civil Power, a magistrate can order Army to open fire. In view of same an argument is being pushed that if a magistrate can order army to fire then why shall there be AFSPA?

The same argument is also given by many IAS to propound a theory of their supremacy over commissioned officers of army with the statement that in peace time only Army Brigadier can order fire where as in civil a Collector can do it? So a Army brigadier is equal to Collector. Based on this argument many states govt in clear violation of Order of Precedence set by Central Govt, have issued their own Order of Precedence equating Collector with an Army Brigadier.

The argument has also been used to tweak army pay structure to bring it down. One senior IAS officer used same argument before 7 pay commission recommendations were made to put down armed forces pay structures and also to deny OROP to them.

Ignorance may be bliss but it becomes a curse if the same is used to govern the country to promote ulterior motives of establishing unfounded and illegal authorities by arrogant and corrupt establishments. What is the right legal position then? As per constitution and law, Armed forces can be used by govt as under:

1. To wage war against enemies any where in the world and within country under Defense of India Act and Rules.

2.   Under emergency provisions of constitution where Govt can declare emergency in whole country or part on grounds of deteriorating security situations and use military force by decree.

3.  Under Armed Forces Special Powers Act when the area is declared disturbed by a state govt under an elected govt or under president rule.

4. Under provisions of Cr PC 130 wherein an Executive Magistrate of highest rank; in this case a collector, can order army to disperse an unlawful assembly.

5. Under provisions of Cr PC 131 wherein any commissioned officer or gazetted officer ( JCO; Subedar or Nb Subedar) can disperse such unlawful assembly using military force as he seems fit but shall communicate with  an Executive Magistrate; Collector, in shortest possible time.

6. Under indirect provisions of Martial Law under  article 34 of the constitution wherein an officer of the rank of Brigadier and above, in case civil govt collapsing due to any reason, can declare martial law in any part of the country or in whole country as applicable as per their jurisdiction to restore the authority of civil govt as envisaged in the constitution.

In above provisions as given in point 3 and 4, the immunity has been given to member of armed forces from arrest under sec 45 of the Cr PC unless sanctioned by the central govt. Under provisions of law as mentioned in point 1 above, the law gives tremendous powers to central govt and armed forces to the extend of applying military law to civilians.Under the law as mentioned in point 2 above central govt may provide immunity in existing sec 45 of Cr PC or make any other law under a decree. Under AFSPA act as mentioned above in point 3, it itself repeats the provision of section 45 of the Cr PC. Under Martial law armed forces itself can make laws to provide them immunity.

As per constitution, the law and order is a state subject and defense of India is the subject of central govt. Going by the spirit of the constitution, military force shall not be used against own citizens unless a law and order problem is throwing a serious security challenge to defense of India. Or in other words, if a law and order problem escalates into a scrutiny threat and state govt finds it difficult to control it within given legal authority and means using all other forces at its disposal, state govt or central govt may call upon army to assist state govt in restoring law and order by using military force. Accordingly above legal provisions have been made to deal with entire spectrum of  intensities of violence which may be used by unlawful assemblies threatening law and order.

With above provisions in mind, let us come back to the argument being propounded for scraping AFSPA on ground that if a Magistrate has powers to order army to fire to disperse an unlawful assembly then why shall there be AFSPA?    

Let us assume a situation when there is no AFSPA. What are the provisions then available to state govt to use military force? It is only under section 130 of Cr Pc, an executive magistrate of highest rank (Collector) exercising authority of state govt, can requisition army to disperses an unlawful assembly. Let us discuss this section in some more detail.

Sub section 130 (1) makes the provision for use of military force to disperse unlawful assembly by an executive magistrate of highest rank exercising the state authority.

Sub section 130 (2) further explains the manner in which an executive magistrate shall require army to disperse an unlawful assembly  and use the words 'with the help of the armed forces'. It means this section doesn't put armed forces under the command of the executive magistrate.

Sub section 130 (3) explains the manner in which armed forces shall respond to such requisitions made by an executive magistrate of highest rank (collector) exercising state authority.  It says:

"Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in doing so he shall use as little force, and as little injury to person and property, as may be consistent with dispersing and arresting and detaining such person".  

Let us see what are the implications of this subsection. The use word 'obey' means that armed forces have no authority to refuse such requisition made by an executive magistrate but the same sentence also puts a condition 'in such manner as he thinks fit'. That means an officer of armed forces retains the authority to make his decision and use his military power as vested in him by law to select how much force and in what manner shall be used to disperse and arrest and detain.  Executive magistrate has no authority over armed forces and can not order how much force to use, when to fire, where to fire, how to fire and what to fire?  

The section 130 of Cr PC doesn't specify at what moment the authority of state to maintain law and order is transferred  or passed to officer of the armed forces by an executive magistrate acting under the provisions of law and for how much period? The issues has been debated in length by the various HC and SC and based on their observations and also in few cases executive magistrates blaming army of using military force on their own, a procedure has been adopted wherein army only accepts written requisition mentioning date and time from an executive magistrate. Accordingly every officer including a NCO of the armed forces deployed in such duties carry a form of requisition and it is signed jointly with executive magistrate before officer of armed forces orders troops under his command to use military force to disperse and arrest and detain unlawful assembly.

The section 130 is silent on the aspect that when will the officer of armed forces, who has taken over control of situation  from an executive magistrate under a written requisition signed jointly will hand over the control back to executive magistrate. However if this aspect is seen under the provisions of section 131 of IPC then it become clear that an executive magistrate can ask officer of the armed forces the control of situation back. Accordingly every officer of the armed forces including a NCO deployed on such duties carry a printed form which is signed jointly by officer of the armed forces and executive magistrate to hand over control of situation back to executive magistrate. 

A very interesting legal aspect of authority shall be noted here.  The legal provision uses the word executive magistrate of the highest rank but it may not be possible for a collector to be present on all disturbed spots therefore such authority in such situation is delegated to authorized magistrates who are civil gazetted officers. Similarly in case of armed force as per their operating procedures, the word 'officer' also includes NCO. So how does armed forces operate complying with provisions of civil and military laws both?  So for meeting the requirement of law, the requisition form can only be signed by a commissioned officer or a JCO from armed forces. However such commissioned officer or a JCO under military law and operating procedure can order a NCO to exercise power to disperse and arrest and detain. That mean in case of armed forces the state powers of the magistrate are exercised by NCO too. The AFSPA act actually makes it more clear when in the definition of officer of armed forces, NCO has been included. 

Now let us come back to the main question as raised under the subject heading; "Why shall AFSPA be there if a civil magistrate can order army to fire in aid to civil authority'? Following facts and issues which emerge from explanations as given above are given below.

1. A Civil Magistrate has no authority over armed forces to order fire.

2. Armed forces are used in aid to civil authority only for short duration and are related to disturbed situation at a spot and not an area or region.

3. In areas which are infested with insurgency where state of armed rebellion exists or area is disturbed due to  high intensity of violence existing or likely to erupt, what if a magistrate doesn't requisition armed forces under threat of insurgents or terrorists allowing state administration to collapse?  

There have been various instances where magistrates have denied requisitioning army even in riots infested areas forcing army to only accept written requisitions.  If such things can happen in normal peace times where riots have erupted it is most likely that in a insurgency infested area, a magistrate under threat may not even requisition armed forces.

Shall in such situation central govt or state govt allow civil administration to collapse and force either army to impose martial law or central govt  to impose emergency? Keeping in line with right spirit of the constitution, democracy and freedom it is imperative upon central govt to avoid declaration of emergency or armed forces imposing martial law.

To manage disturbed situation of insurgency or threats from armed criminals and terrorists and also maintain right spirit of democracy under an elected state govt, Central Govt had no choice except to bring special laws in form of disturbed area act and AFSPA or suitably amend sections 130 and 131 of Cr PC to give armed forces special powers to deal with the situation with out reference to requisitioning procedure by the magistrate.

Under Disturbed Area Act the state govt has been actually empowered to requisition armed forces for maintenance of law and order for up to 6 months instead of magistrate under section 130 of Cr PC for shorter duration. AFSPA act actually gives no extra authority to armed forces but only reiterates provisions of Cr PC in more forceful manner  Actually Distruebd Area Act and AFSPA act can be scrapped if section 130 and 131 of IPC are suitably amended. But will it make difference? No. The operating procedure of armed forces will still remain same however it will extend the application of such laws to whole country instead of special laws having been made applicable to few disturbed states only.

Now question is, shall state govt keep extending Disturbed Area Act by renewing its notification every 6 months? So issue is not the law itself but its application? Citizens are fundamentally right and take to street when they find themselves subjected to military force for a longer period. It breeds more discontentment and forces more youths to pick up arms in rebellion.

Why shall central govt and state govt insist on use of armed forces for law and order problem and expect use of lathis and other soft forces by armed forces? Better is not to use armed forces if situation has improved. It will be highly dangerous to use army for milder force as it will blunt the sharp edge of their power which they use against enemies and also make soldiers softer. Provisions of section 131 are already there for armed forces to use military force on their own in case of they being attacked? Same can be suitably amended to satisfy concerns of the armed forces of security of their men, material and movements.

On contrary armed forces are not happy with existing legal provisions to fight proxy wars fueled by neighbors like in Kahmir and find provisions of AFSPA highly inadequate due to following reasons

1. Armed forces have no powers to investigate which makes their intelligence network totally ineffective thereby making their operations blunt and directionless. Intelligence provided by other agencies proves to be highly unreliable and many times have led soldiers to be ambushed.

2. In such proxy war subjected areas like Kashmir, state criminal justice system  comes under threat of armed rebellions and foreign agents and fails to convict such arrested enemies fighting proxy wars with state. It results in a situation where in though armed forces have convicted almost 2000 plus soldiers on charges of human right violations but state criminal justice system has not punished even a single enemy. It results in soldiers asking a very natural question. State is with whom? Enemies or soldiers? It affects their moral dangerously.

Keeping in mind the frustration of harassed people, problems of soldiers, spirit of law, freedom and democracy and requirements of military operations there is surely a need to review the situation and come up with better legal arrangements. The following strategy shall be adopted:

1. Distinguish between proxy wars and internal armed rebellions. Like in Kashmir it is proxy war and in Assam it is a armed rebellion by criminals.

2. Use armed forces only in case of proxy wars and high intensity armed rebellion but not more than 3 - 5 years.  In rest of situation use either PMF like RR or use CAPF like BSF or CRPF.

3. For using armed forces in situations of proxy wars and high intensity armed rebellion empower armed forces with powers of investigations and  constitute military courts to punish arrested enemies in shortest possible time. It will make operations of armed forces sharp and will help in controlling situation in 3-5 years time rather than keep fighting for decades. The fear of armed forces coming back with military courts will keep subvertive  emotions and thoughts of people under check. In such situation the state shall be brought under president rule. Make special new laws accordingly.

4. In other situation of armed rebellion, only PMF like RR or CAPF like CRPF shall be used. Amend Cr PC sections 130 and 131 accordingly for:

a. Armed forces to come for assistance to civil authority for not more than 3 months or shall conduct special joint surgical operations against identified potential targets.

b.  Allow armed forces to keep collecting intelligence and  joint investigations in key incidents so that when they are called upon troops are equipped with specific intelligence for conducting effective operations. Troops then can go back to barracks after fishing their task within 3 months.

c. Empower armed forces  to act in self defense by further strengthening section 131 of CrPC as attacks on armed forces by terrorists can happen anywhere in the country.

5. After making above provisions, scrap AFSPA.

Let us understand, to avoid imposition of martial law and state of emergency which are not good for the health of democracy, it is obligatory on part of central and state govt  to make special legal provisions to back criminal justice system to deal with the situation of armed rebellion and proxy wars. Only thinking of armed forces or PMF or CAPF fighting armed enemies or insurgents or terrorist with out making criminal justice system effective and responsive will land  us in a messy situation where we have reached now.

Subjecting citizens under military force for longer duration countermands the spirit of democracy, respect and freedom as assured under our constitution.  We must adopt a system where common citizen is subject to such hardship of disturbed situation due to armed rebellion for shortest possible time. Disturbed Area Act and AFSPA are inadequate to deal with the situation and surely we need to scrap it by making suitable changes or replacing it with some special laws to deal with situations like proxy wars, high intensity armed rebellion and armed rebellions.

For doing above, we need to first educate law makers, IAS officers, judiciary, CAPF, armed forces officers and people, about the gravity of situation and inadequate response which such disturbed situation is getting allowing it to simmer for longer periods thus making citizens to suffer hardship for longer periods and turning youths into enemies. Very responsible people asking such question as given in subject tagline surely indicated a very high levels of ignorance prevailing in many minds.

Surely enough our NCO and JCO deserve better respect and pay as they exercise the powers of civil magistrates. It is not a Brigadier of Army who is equivalent to an collectors as have been decided by few states violating warrant of precedence of central govt but JCO who as a gazetted officer can sign requisition with him and his status as given by law shall be respected. By law commissioned officers are vested with executive powers of the state like civil political authority and comparing them with administrative gazetted officers who support such executive political authority is highly unconstitutional.































        












  







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