Nagaland Killings: How a 1951 Amendment for ‘Public Order’ Enabled AFSPA

The Centre introduced the ‘public order’ limit in 1951, which eventually allowed the use of many draconian laws.

Placards and black flags at the venue of the Hornbill festival in solidarity with the civilians killed in an anti-insurgency operation, in Kisama, Nagaland. 

Photo: PTI

Do we have the right to life? The text of Article 21 of our Constitution says, “No person can be deprived of life or personal liberty except according to procedure established by law.” The expression ‘established procedure’ has practically become ‘prescribed’ procedure to take away the lives of innocent people.

Great ‘procedure’ is prescribed in the Armed Forces (Special Powers) Act 1958. No warrant is required to arrest or search, a reasonable suspicion of the officer is enough [Section 4(c)]. If he opines it is necessary to do so for the maintenance of public order, he can give a due warning (in the way he considers necessary) and use force, even to the extent of causing death. The area where force is permitted to be used should have been declared as a ‘disturbed area’ by the Central government or their representatives. Lastly, any officer who is commissioned or not commissioned, a warrant officer, or any other person equivalent in rank to the armed forces may use this power. If these conditions are fulfilled, any officer can kill a person in a ‘disturbed area’. More on this later.

It is legal to kill a person as per the procedure prescribed in AFSPA. But the question is, is it constitutional? Is this procedure established by law? The Constitution of India emphatically states in Article 21 that the procedure prescribed should be an established procedure in a rule of law-governed, democratic society. The word ‘established’ here means due process.

Who Decides That an Area Is 'Disturbed'?

The state government has no role in determining whether the area in their state is a disturbed area or not. Section 3 says the Governor or an Administrator of a Union Territory, or the Central Government, should be of the opinion that a particular state or an area in it is disturbed or in a dangerous condition. That is enough for declaring the area or an entire state as ‘disturbed’. No guidelines are fixed. No report is needed.

The state police have no role. The state need not submit any request or representation. Law does not prescribe any collection of data to consider a particular area is disturbed.

The All-Powerful 'Public Order' Modification

‘Public order’ is the key expression from which this law flows and allows absolute power to use deadly force. This expression gained constitutional validity by the first amendment to the Constitution, which was introduced by interim Prime Minister Jawaharlal Nehru in the Constituent Assembly, which was acting as interim Parliament, within months of adopting the Constitution of India on 26 January 1950. One of the major modifications was increased restrictions on the freedom of speech and expression in the name of ‘public order’, the ‘interests of the security of the state’ and ‘relations with foreign states’.

Among these three new grounds of limitations, ‘the public order’ limitation is all-powerful. It has almost taken away the freedom of speech and has legitimised the abuse of ‘sedition’ to curb critical voices, as has been witnessed in the last one-and-a-half decade.

Through draconian laws like sedition or the Unlawful Activities (Prevention) Act, a Superintendent of Police or an inspector, with support from political bosses, could say that a journalist, ‘andolanjeevi’, or even a student leader, has caused disturbance to ‘public order’.

How the Constitution Was 'Gutted' in 1951

The paradox is that the champions of freedom during the Independence movement, who drafted the fundamental rights in our Constitution and who were very much present in Constituent Assembly-turned-Parliament, have not hesitated to axe free speech with this all-inclusive ‘public order’ limit. Within months of Republic Day, they drafted the first amendment, and before the first general election in 1952, the freedom was diluted to the extent that it could become extinct. This was in retaliation to Supreme Court's judgments striking down press censorship laws in Brij Bhushan v State of Delhi and Romesh Thappar v The State of Madras in 1950 as violative of Article 19(1)(a).

Professor Upendra Bakshi called the sweeping changes brought in the first amendment the ‘Second Constitution’. Journalist Karan Thapar prominently mentioned how Nehru “had gutted the Constitution in 1951”. Cambridge scholar Tripurdaman Singh, in his recent book Sixteen Stormy Days, which is about the first amendment, wrote that the ‘public order’ ground validates sedition, while the ‘interests of security’ phrase gives enormous powers to the state to stifle voices.

How Govt Bypassed the Requirement for 'Both Houses'

The Constitution provides for making amendments to itself, but it requires a two-thirds vote in both Houses of Parliament. But back then, there was just a provisional Parliament with just one House, as the Rajya Sabha did not exist from 1950 to 1952. To bypass this serious impediment, the Nehru Government promulgated the Constitution (Removal of Difficulties) Order. Article 392 dealt with the power of the President to remove difficulties. But this power is related to the transition from the provisions of the Government of India Act, 1935, to the provisions of the Constitution of India.

But as sheer misuse, it was used to limit the fundamental right – as if the judgments of the Supreme Court upholding the freedom of speech were impediments that could be removed like this.

BR Ambedkar, the chief architect of our Constitution and who was in the Nehru Cabinet, in his long memorandum for the Cabinet Committee opposed the deletion of existing limitations and their replacement with others. He did so in order to prevent the Supreme Court from reinterpreting them into Article 19 through the concept of ‘due process of law’. In his opinion, rather than adding to restrictions or replacing them, they should just be amended to the extent of allowing laws placing such restrictions to be exempted from judicial intrusion, (as stated in the book by Tripurdaman Singh). This was a dangerous proposition not expected from Ambedkar.

Indira Gandhi Allows Another Modification

Then, within seven years, in 1958, the second Parliament – again under the leadership of Prime Minister Nehru – passed another draconian law called the Armed Forces (Special Powers) Act, which says that it is if an officer sees it necessary for the maintenance of public order, he can use force, even to the extent of killing any person. With the support they got from the first amendment to the Constitution, the government was perhaps emboldened to curb the right to life, as it did with the right to free speech, with the excuse of ‘public order’.

During the Emergency, the Indira Gandhi government brought in the infamous 42nd Amendment, which changed the shape of our Constitution. Though most of the deviations were corrected by Morarji Desai’s Janata Party Government, one provision remained ‘dangerous’, ie, the introduction of Entry 2-A in Union List of Seventh Schedule of the Constitution.

Under this entry, the Union got the power to make laws and exercise executive power on the subject of “deployment of any armed force of the Union … in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment”. The Union can thus deploy its forces and decide the powers and liabilities of those forces.

This entry forms the basis of the constitutional foundation of AFSPA, conferring special powers to armed forces in disturbed areas in Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The use of deadly force by an officer under this draconian law is based on his perception about threat to ‘public order’. In the latest killings in Nagaland, first, to prevent the perceived threat to ‘public order’, seven innocent persons were killed, and then in the exercise of the right to private defence, another seven persons were killed when mobs assaulted armed forces. And that has to believed to be the ‘established’ procedure under Article 21. What a fall.

How Section 4 of AFSPA Is a Lethal Weapon

As stated above, according to Section 3 of AFSPA, it is in the exclusive domain and power of the Central Government or its representatives to decide that the whole or any part of a state or UT is in a disturbed or dangerous condition and that the use of armed forces is necessary. The opinion about necessity and a gazette notification declaring the area as ‘disturbed’ are two preconditions.

Empowering armed officers, Section 4 of AFSPA says any commissioned officer, warrant officer, non-commissioned officer or any other person of same rank in disturbed area can use the ‘special’ powers to maintain public order, after giving such due warning as he may consider necessary. The latter part of the Section shows the enormity of the special power.

It says the officer can fire upon, otherwise use force, even to the extent of causing of death, against any person who is 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 carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition of explosive substances.

It also says that the officers can destroy any arms dump, prepared or fortified positions, shelters or any structures used as a training camp or a hide-out, etc.

Clauses (c) and (d) of the Section say that the officer can arrest without warrant any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest. Reasonable suspicion is enough to arrest without warrant.

Similarly, they can enter and search without warrant any premises to arrest or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept, by using necessary force. For any search, arrest and recovery without a warrant, a reasonable suspicion about disturbance to public order is enough.

Thus, Section 4 is a deadly force in the hands of those holding lethal weapons.

Absolute Power Meets Absolute Immunity

But Section 6 is the most dangerous. It provides absolute protection to persons acting or purporting to be acting under this Act. It says: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.

But who has to ask the Centre for sanction? This question is left unanswered. Are the local police given any authority in this Act to register a case of killing under suspicious circumstances? No. The police can use their general power to register cases against such incidents. And the Nagaland police did that. But will the Centre give its sanction?

It is not guns and rifles that kill people – the unchecked power given to officers under law is the real ‘bullet’.

When an officer is armed and absolute power is coupled with absolute immunity, can we really say that people in a ‘disturbed’ area have a right to live?

(Dr M Sridhar Acharyulu is Dean & Professor, School of Law, Mahindra University, Hyderabad and former Central Information Commissioner. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)