LEADER ARTICLE<BR>Licensed to Kill: Armed Forces Act is Mother of Black Laws-Editorial-OPINION-The Times of India

The brutal killing of Thangjam Manorama is illustrative of the brazen manner in which the army functions under the Armed Forces Special Powers Act (AFSPA). The army reaction, that it sees a pattern to the protests which intensify when the AFSPA comes up for renewal, merely reflects its mindset: It labels all democratic protests, more so in the north-east, as anti-national.

Even draconian laws like TADA, POTA or the Defence of India Act come nowhere near AFSPA, a one-page legislation with barely five sections. The only analogous law is the Armed Forces (Special Powers) Ordinance, 1942, issued by the colonial government to suppress the Quit India movement. POTA, for example, has about 64 sections and sets up a parallel structure to deal with 'terrorist activities'. It has a definition of 'terrorist activities' and the legislation swings into action only if the acts committed fall within it. AFSPA has no definitions of offences and the absolute powers it confers are exercisable in an area declared as 'disturbed'. The legislation tautologically defines 'disturbed' as an area which requires the aid of the armed forces, without spelling out criteria. This has led to states being declared 'distur-bed' for years — Nagaland for 46 years and Manipur for 24.

Adverse presumptions, vague definitions, admissibility of confessions to police and virtual denial of bail are among the objectionable features of POTA. However, it has provisions laying down the procedure for forfeiture of the proceeds of terrorism and the powers of investigating officers. Provisions for appeal against decisions taken under the legislation also find a place. Except for modifications on period of custody and bail, the other circumscriptions of the Criminal Procedure Code (CrPC) also apply to cases under POTA.

In sharp contrast, AFSPA gives the power to a commissioned, non-commissioned or warrant officer to fire upon, or use force, to the extent of causing death 'if he is of the opinion that it is necessary to do so for the maintenance of public order'. The power to shoot-to-kill can be exercised for contravention of an order prohibiting the assembly of more than five persons. Under ordinary law, contravention of an order under Section 144 CrPC is a minor offence punishable with a month's imprisonment. The power can also be exercised if a person is carrying objects which could be construed as weapons.

AFSPA does not require a report on the circumstances under which the army officer formed his opinion to 'shoot-to-kill'. There is no independent application of mind on whether there was justification for the killing. Neither is there any provision for an inquest into the death of the person. A magisterial inquiry under CrPC is mandatory for deaths in police custody, including those arrested under POTA or TADA.

The power under AFSPA to shoot-to-kill goes far beyond the right to self-defence permissible under Section 100 CrPC or the power to cause the death of a person resisting arrest under Section 46 CrPC. The specific situations under which the police has powers to enter, search and arrest without warrant are delineated in the CrPC. The AFSPA confers powers to enter, search, arrest and destroy without warrant and on mere suspicion.

The army detains people for weeks, interrogating them by using questionable means, as is detailed in official interrogation reports. The last provision of the controversial law grants impunity to the armed forces as no prosecution can be instituted without the prior sanction of the Union government. The Centre does not grant sanction even in clear cases of rape and murder.

The chain-of-command psychology, integral to the functioning of the army, renders it incapable of taking orders from 'mere civilians'. Niceties such as warning, using as little force as necessary, first firing in the air, then shooting below the waist, which are to be observed by the police in dealing with citizens, have no place when nations wage wars. The ability to use maximum force to cause the utmost damage and destroy the enemy on first strike is the sine qua non of a battle-ready army.

The recent outrage against the AFSPA is not new. The army's total disregard for civil authority is corroborated by various reports of commissions of inquiry. The inquiry into the firing and mortar shelling of Kohima by 16 Rashtriya Rifles on March 5, 1995, which killed seven civilians and injured several, found that the RR personnel thereafter resorted to "indiscriminate, unnecessary and uncontrolled firing and mortar shelling under the imaginary apprehension that insurgents had opened fire at them; that they had killed innocent civilians in a most cold-blooded manner".

Similarly, the commission of inquiry into the Mokhukchung, Nagaland, arson and firing on December 27, 1994, substantiated the complaints of rape of women by the 16 Maratha Light Infantry as well as the deliberate act of setting fire to the houses and shops by jawans of the unit. The memorandum submitted by the council of ministers of Manipur after the Oinam incident in 1987 to the home minister details the excesses committed by Assam Rifles, including the illegal confinement and humiliation of the deputy commissioner and SP.

In sum, AFSPA supplants rather than supplements civil authority. It is un- constitutional and impermissible in a democratic polity.

(The author is a Supreme Court advocate.)