AFSPA in Meghalaya
In a recent Order of the High Court of Meghalaya dated 2.11.2015 passed in Writ Petition (C) No. 127 of 2015, the High Court of Meghalaya has made a suo motu suggestion to the Central Government for the imposition of the Armed Forces (Special Powers) Act, 1958, in the Garo Hills area. It is shocking and deeply disturbing that a draconian law like the AFSPA is being sought to be imposed through a judicial order.
We are attaching a statement which carries objections to this order endorsed by more than 60 concerned citizens, from various parts of India – some of whom are well respected and accomplished individuals in their fields, like law, academia, journalism, films, bureaucracy and activism.
The judgement read more
24 November 2015
Public Statement on the Order of the High Court of Meghalaya on the AFSPA
In a recent order, the High Court of Meghalaya has found it fit “to direct the Central Government to consider the use of Armed Forces (Special Powers) Act, 1958, in the Garo Hills area”.We are deeply troubled by this order for several reasons.
Firstly, the said direction issued by the High Court of Meghalaya is in complete violation of the constitutional arrangement of separation of power. The power to notify an area as disturbed and extend application of the AFSPA lies exclusively with the executive, that is, the state or central government. Maintenance of law and order especially in a conflict-ridden area throws vexed questions of security policy and needs reasoned and reflective assessment of options. Court as a civilian institution neither has access to the required expertise nor is privy to necessary security inputs. In fact, the point of view of the Court that the prevailing circumstances in Garo Hills warrants imposition of AFSPA is merely based on the lay impressions of the bench – a view which is uninformed, extraneous and has no basis in law and betrays lack of application of mind. The methodology and logic employed by the court in arriving at these conclusions is alien to established contours of legal reasoning and judicial rigor.
Further, the instant order severely damages the credibility of the High Court of Meghalaya as an independent arbiter of citizen’s democratic rights. It is to be noted that the High Court of Meghalaya is the holder of all powerful writ jurisdiction. It is the constitutionally enshrined role of the High Court that it is able to effectively carry out judicial review of executive measures having a bearing on life and liberty of people. By inviting the imposition of the AFSPA, the High Court of Meghalaya has become an active participant in the security policy of the state and has therefore, compromised its ability to safeguard individual rights and fulfill its role of acting as a check on executive power. It is imperative that the High Court retains independence and maintains a healthy distance from local security deliberations such that it can independently scrutinize challenges mounted by the citizenry.
More specifically, in upholding the constitutionality of the AFSPA, the Supreme Court in the case of Naga People’s Movement of Human Rights laid down certain safeguards that need to be followed in the implementation of the Act. One of these safeguards is the requirement to review a notification declaring an area to be “disturbed” under section 3 of the Act. The Supreme Court said “we are unable to construe Section 3 as conferring a power to issue a declaration without any time limit” and said “we are of the view that a periodic review of the declaration made under Section 3 of the Central Act should be madebytheGovernment that has issued such declaration before the expiry of a period of six months”. In its order, the Meghalaya High Court has said that armed forces should be deployed in the Garo Hills until “life becomes normal and the incidents of rampant kidnapping and killing totally stop”. This is clearly contrary to the decision of the Supreme Court.
Further, in the case of Naga People’s Movement of Human Rights the Supreme Court acknowledged a limited power of judicial review over notifications declaring areas to be disturbed: courts could assess whether the executive had relied on relevant material in making a decision to declare an area as disturbed, but not if these materials were sufficient. In directing the executive to impose the AFSPA, the High Court has effectively nullified the possibility of such a review in the future.
In addition to misunderstanding its role in a democracy, we are also concerned that the High Court has chosen to advocate imposition of the AFSPA – a law whose democratic credentials are in serious doubt. The AFSPA is widely considered to be a legislative measure unique in its absolute disregard of the rights of the residents against unlawful exercise of coercive power. The law exposes people to wanton and reckless use of force by security forces as it grants them absolute power and authority to use force. Over the years, a consensus has emerged on the AFSPA being a security measure of colonial origin in that it is a distinctively regressive tool which sets up a military ecosystem where security forces act with impunity and whips up an environment of fear and terror in the hearts and minds of people living in these places. The use of the AFSPA as a substitute for routine policing and maintaining law and order is a dangerous development. It is one that a High Court should not condone, and certainly not perpetuate.
Finally,in a conflict ridden region, it takes many years of work to position the judiciary as an independent institution which is committed to enforcing constitutional discipline on the state and protects people’s right to redress. Through this order, the Chief Justice of High Court of Meghalaya along with two accompanying justices, have sought to unilaterally subject Garo Hills to a law thatwill have devastating consequences to the life and liberty of persons living there. This blatant and unilateral order does not serve the democratic fiber of the region, rather it appears to be bringing in questions regarding the court’s commitment to constitutional ethos of the Indian republic.
We feel it is the responsibility of the judiciary to take corrective measures and ensure that the Courts, do not, even inadvertently, overstep the boundaries so carefully laid down in the Indian Constitution.
1. Achin Vanaik, Former Professor, Delhi
2. Aflatoon, Samjwadi Jan Parishad, Varanasi
3. Angela Rangad, TUR, Shillong
4. Ania Loomba, Academic, Delhi
5. Prof. Apoorvanand, Academic, Delhi
6. Aruna Roy, MKSS
7. Arun Ferreira, Advocate & writer, Mumbai
8. Asad Zaidi, publisher and poet, Gurgaon
9. Prof. Ayesha Kidwai, academic, Delhi
10. D. Gabriele, NAPM
11. Dilip Simeon, writer and historian, Delhi
12. Ezra Rynjah, Environmentalist, TUR, Shillong
13. Dunu Roy, Hazards Centre, Delhi
14. Fabian Lyngdoh, columnist & ex-Chairman KHADC
15. Gertrude Lamare, Academic, TUR, Delhi
16. Githa Hariharan, writer, Delhi
17. Prof. Harbans Mukhia, Historian, Delhi
18. Harsh Mander, Aman Biradari, IAS (Retd.)
19. Indranil Bhattacherjee, Secretary, Bandi Mukti Committee, Darjeeling District, West Bengal
20. Jagdeep Chhokar, Senior Activist
21. Jairus Banaji, Historian
22. Justice K Chandru, Retd. Judge, Madras High Court
23. Kamini Jaiswal, Lawyer
24. Kiran Bhatty, academic, Delhi
25. K.S Subramanian, IPS (Retd.)
26. Rev. Kyrsoibor Pyrtuh, Shillong
27. Madhuresh, NAPM
28. Mahesh Bhatt, Filmmaker
29. Manisha Sethi, Academic, Delhi
30. Meena Kandasamy, writer
31. Meenal Tatpati, Environmentalist, Pune
32. Mukul Kesavan, academic and writer, Delhi
33. N. Jayaram, Journalist
34. Nalini Taneja, Academic, Gurgaon
35. Nikhil Dey, MKSS
36. Nivedita Menon, Academic, Delhi
37. Prabhat Patnaik, Academic, Delhi
38. Pamela Philipose, Senior Journalist
39. Phrangsngi Pyrtuh, Academic, Shillong
40. Prashant Bhushan, Lawyer
41. Roney Lyndem, TUR, Shillong
42. Radha Khan, Delhi
43. Rakhi Sehgal, Trade Union Activist, Hero Honda Theka Mazdoor Sangathan
44. Sanjay Kak, Filmmaker, New Delhi
45. Shabnam Hashmi, Sahmat
46. Shailesh Gandhi, RTI Activist and former Central Information Commissioner, Delhi
47. Prof. Shohini Ghosh, Academic and Filmmaker, Delhi
48. Shruti Ajit, Environmentalist, Pune
49. Sourav Banerjee, Journalist, Free Press Journal
50. Suchi Pande, Academic
51. Sukumar Muralidharan, journalist and writer, Shimla
52. Tarun Bhartiya, Filmmaker, TUR, Shillong
53. Teesta Setalvad, Citizens for Justice and Peace
54. Uma Chakravarti, feminist historian and academic, Delhi
55. Utsa Patnaik, Academic, Delhi
56. Vasanth Kannabiran, Activist
57. Wajahat Habibullah, Former Chief Information Commissioner, IAS (Retd.),
58. Waliullah Ahmed Laskar, Barak Human Rights Protection Committee (BHRPC), Rongpur, Silchar, Assam
59. Zoya Hasan, Academic
60. Ali Ahmed
61. Hargopal Singh
62. P K Vijayan
63. Maya Valecha
64. Mary E John
65. G. Sankaran
Order of the High Court of Meghalaya dated 2.11.2015 passed in Writ Petition (C) No. 127 of 2015.
Several Indian bodies have recommended the repeal or amendment of the AFSPA. See Justice Jeevan Reddy Commission Report, the Fifth Report of the Second Administrative Reforms Commission and the Santosh Hegde Commission and the report of the Justice Verma Commission. In 2015, the High Level Committee on the Status of Women also advocated its repeal. Multiple international authorities have also recommended that the government of India repeal or at least amend the AFSPA so it is in compliance with international human rights law. These include the Committee on the Elimination of Discrimination against Women, the Special Rapporteur on violence against women, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the situation of human rights defenders, the Committee on the Elimination of Racial Discrimination, and the UN Human Rights Committee. India also received recommendations to review or repeal the AFSPA from other countries during its Universal Periodic Review at the UN Human Rights Council.
ARTICLE in SCROLL.IN
There are many ironies in the High Court order to enforce AFSPA in Meghalaya
An institution that should be defending human rights is recommending the imposition of a law that enables human rights violations.
Sanhita Ambast · Nov 15, 2015 · 07:30 pm
In an astonishing and a deeply problematic order on November 2, the Meghalaya High Court directed the central government to consider enforcing the Armed Forces (Special Powers) Act in Garo Hills till such time as “life becomes normal and the incidents of rampant kidnapping and killing totally stop”.
The three-judge bench of the court noted that Garo Hills in Meghalaya had a serious security problem, that the state police were not capable of addressing it, and used its powers under writ jurisdiction to say that imposition of AFSPA was necessary.
Though excessive, the direction of the Meghalaya High Court is not without legal effect. It has consequently led to a rather incongruous situation where the central government, which is responsible for deploying armed forces, is reportedly considering challenging the order in the Supreme Court.
The resistance is visible in Meghalaya too, with local groups taking to the streets to protest against the court decision and arguing against the idea that enforcement of AFSPA could ensure their security. The groups are acutely aware that in most regions living under AFSPA, the law has been a guise for state conduct amounting to human rights violations and an excuse for impunity.
Even if the law does not get enforced in Meghalaya, the High Court’s decision has still raises important questions about the role of the judiciary in such situations. It is concerning that an institution which should check executive powers, limit the application of exceptional laws like AFSPA and provide accountability for AFSPA-related violations, is entrenching its operation.
Under ASFPA, the power to extend the law to a “disturbed area” clearly falls outside the provenance of the judiciary – it is an assessment that can only be made by the state or central governments. This is one of the very few safeguards built into the operation of an otherwise repressive and brutal law. And it was emphasised by the Supreme Court in 1997.
While adjudicating on the constitutionality of AFSPA in the case of Naga People’s Movement of Human Rights, the Supreme Court had acknowledged that courts have limited power of judicial review over notifications declaring areas to be “disturbed” under AFSPA.
By recommending AFSPA’s extension to Garo Hills, the Meghalaya High Court has effectively compromised possible judicial review on this question in the future.
Incompatible with international law
It is also ironic that the High Court justified its order by relying on its powers to “protect the civil liberties and fundamental rights of the common citizens”. Extension of AFSPA has historically done the opposite.
Multiple United Nations authorities and Indian commissions have spoken about the adverse human rights consequences of AFSPA and the need to repeal it or at least radically amend it. A number of its provisions are incompatible with international human rights law and India’s international legal obligations. In practice, it has enabled human rights violations, including rape, torture and enforced disappearances. Indeed, the power to use lethal force under broad terms allowed by the AFSPA disregards the right to life, and falls short of international law on the use of force by law enforcement. Other provisions of the law deny victims of serious rights violations access to an effective remedy, facilitating impunity for those responsible for the violations.
There is no doubt that there are serious challenges in protecting the security of people in Garo Hills, as there are in other parts of the country. However, effective security measures must respect the rule of law and reinforce, not undermine, human rights protections.
True to type, the government is extending the reach of AFSPA, most recently in Arunachal Pradesh and Assam. Instead of challenging the continued use of this law and reinforcing safeguards, it is regrettable that the Meghalaya High Court sought to further entrench it.
The writer is an International Legal Advisor (South Asia) for the International Commission of Jurists.
We welcome your comments at firstname.lastname@example.org