When it appears to the government that a dangerous situation has developed in a certain area of the country and it requires the armed forces to take control of that area, such an area is declared as a disturbed area. The provisions of AFSPA apply in such disturbed areas.
To declare an area as a ‘disturbed area’ there must exist a grave situation of law and order on the basis of which the Governor/Administrator can form an opinion that the area is in such a disturbed or dangerous condition that the use of armed forces is necessary.
Such a declaration has to be for a limited duration and there should be a periodical review of the declaration before the expiry of six months.
The government has to do this declaration through a notification in the Official Gazette, which is a periodical publication which contains public or legal notices.
Example: The Government of India declared Jammu and Kashmir as a disturbed area in 1990. It was declared a disturbed area because of the rise in insurgency and militancy during that time.
An unlawful activity can be through actions, words (spoken or written), signs or visible representations, etc. An “unlawful activity” under this law can include:
- Anything done to bring about the surrender of Indian territory. For example, staging a coup to take over Delhi from the Government’s control.
- Any action that supports the withdrawal of a part of Indian territory from the larger Union of India. For example, conspiring to make an Indian state an independent territory which is no longer a part of India.
- Actions that question or disrupt the sovereignty and territorial integrity of our country. For example, working with foreign agents to overthrow the government.
- Any action which causes (or wants to cause) discontent against India. For example, publishing a book spreading misinformation and falsely discrediting the Government to incite rebellion.
Corruption is the abuse of power by people in power for their own gain in a dishonest or unethical way. In India, it is illegal for public servants to accept money/gifts over and above their salary, in return for doing their duty, favoring a person or for not doing their duty. Any person helping the public servant commit these crimes can also be punished.
Public servants in India are not allowed to:
- Accept money/gifts other than the salary provided as part of their job;
- Ask for or get money/gifts, in addition to their salary, in return for doing their official duty;
- Ask for or get money/gifts, in addition to their salary, in return for not doing their official duty;
- Be partial to someone who has paid them money or give them gifts;
- Do any special favours for someone who has offered them money or gifts;
- You can be sent to jail for a period of 3 to 7 years and be asked to pay a fine for doing any of the above.
A public servant breaks the law by accepting any gift or benefit, not just money. You are breaking the law if you, as a public servant, accept something of value from a person without paying for the gift/service and with whom you have a business or official relationship. You can be sent to jail for a period of 6 months to 5 years and may also have to pay a fine.
Example: You are a public servant working in the Public Works Department and are in-charge of approving tender for road construction. You accept a car from Ravi without paying him any money. You know that his company will apply to your department for approval of a contract to build a highway. If Ravi is given the approval, accepting the car would be considered as accepting a bribe.
An act is seditious if your act results in people feeling hatred or contempt towards the Government. A person commits sedition if they use either spoken or written words or gestures, aimed at encouraging people to:
- Disobey the authority of the Government, or
- Resist the authority of the Government.
These actions should lead people to resort to violence and create public disorder. An attempt to make people disobey or resist the Government through acts of public disorder or violence may also be an act of sedition.
The Armed Forces (Special Powers) Act, 1958 (AFSPA) grants certain ‘special powers’ to the members of the armed forces in disturbed areas. This law extends to the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Jammu and Kashmir. Jammu and Kashmir has a separate AFSPA enacted in 1990 which is similar to the AFSPA, 1958, except for a few provisions.
Under AFSPA the Military is considered to be “armed forces”. When the Air Forces operate on the ground, then they are also known as “armed forces” and have the special powers and duties under AFSPA. Other armed forces of the central government such as Border Security Force (BSF) are also included under AFSPA. However, the Navy is not included under “armed forces”.
There are certain officers of these armed forces who have been granted special powers i.e. power to shoot and use force, destroy shelters/storage, arrest without a warrant, enter and search. These band of officers include:
- Commissioned officers,
- Non-Commissioned Officers,
- Warrant Officers.
An unlawful association is a group which tries to commit or commits unlawful activities or any activity punishable under Sections 153A or 153B of the Indian Penal Code, 1860. Unlawful associations include:
- Groups which encourage or assist people to participate in such activities. For example, a group who conspires to plan a terrorist attack.
- Members who themselves participate in such activities. For example, if a person engages in distribution of explosives for a terrorist activity.
You are breaking the law if you as a public servant help someone commit the crime of influencing public servants. It does not matter that the public servant did not actually act on the influence exerted on him/her. The mere fact of the influence is a crime. You can be sent to jail for a period of 3 years to 7 years along with a fine.
Example: If I, as a District Magistrate, influence the Chief Engineer to favour a friend in a road construction tender, whether my friend gets the tender doesn’t matter, the magistrate can still be punished for just the influencing part.
The following acts do not amount to sedition as they are protected by your right to freedom of speech and expression under the Constitution of India:
- Any criticism of government policies and their actions.
- Any criticism done in good faith against the Government.
- Any criticism done to improve the functioning of the Government.
In other words, commenting in strong terms upon the measures or acts of Government or its agencies is not the same as disloyalty towards the Government. As long as the words used by a person do not lead to people feeling enmity and disloyalty towards the Government and public disorder or use of violence, it is not an act of sedition.
Example I:
- If Amit draws a cartoon for a newspaper highlighting and ridiculing the corruption in the Government, it would not amount to sedition.
- If a filmmaker makes a documentary on the violence of Jammu and Kashmir and critiques the Government actions in it, they would not be liable for sedition.
Example II:
- If Bobby sticks posters in the public library to boycott the general elections to the Legislative assembly and writes “No vote for the masters who are exploiting people”, this does not amount to sedition.
- If Rahul criticizes the government on his Facebook wall for not maintaining the roads in his area, and says bad things about the government, it would not amount to sedition.
- If Tanya expresses her anger against any administrative or other action of the Government without exciting or attempting to excite any hatred or violence, then it would not amount to sedition.
Example III:
- If Raj gives a fiery speech at a stage rally about the ongoing injustice to a certain community, then his speeches won’t amount to sedition if they do not incite any violence or cause public disorder.
- If Ramu holds a slogan saying “I hate the Government, the Government is corrupt”, it is not an act of sedition. If the slogan had resulted in people hating the Government along with violence, then it would be an act of sedition.
The power of the armed forces to shoot and use force can be used against:
- any person who is violating any law, or
- any person forming an assembly of five or more people, or
- any person carrying weapons or things capable of being used as weapons or firearms, ammunition or explosive substances, while these are prohibited in the disturbed area. For example, if carrying lighters is prohibited and you carry one, the army can use force against you.
An officer can use these powers if they think that it is necessary to do so to maintain public order. The officer has to give due warning to the person they are shooting at.
Example: In disturbed areas various activities are not allowed. If a group of armed people create a law and order problem and try to enter a certain area where they attack an army convoy or violate the law in any other way, the armed forces officer can respond to them by shooting them.
Declaring an association as unlawful
If the Central Government believes that any association is, or has become, an unlawful association, it can declare the association as unlawful by publishing an official Gazette notification, usually with reasons for declaring the association as unlawful. The Government will also send the notification to the concerned association and publish it in at least one daily newspaper in the State where the association has its head office.
| After putting out the notification:Step 1: Sending the notification to the Tribunal
The Government should send the notification to the Unlawful Activities (Prevention) Tribunal within thirty days of its publication, to decide whether there is enough reason for declaring the association unlawful.
Step 2: Sending a notice to the association
The Tribunal will then send a written notice to the association, asking it to justify within thirty days why it should not be declared unlawful.
Step 3: Inquiry by Tribunal and Final Order
The Tribunal will inquire and decide whether there is enough reason for declaring the association unlawful. Within six months of the Gazette notification, the Tribunal will pass an order either confirming the Government’s declaration or cancelling it. The order will be published in the official Gazette, and will be valid for five years unless the Government cancels it. |
When a public servant steals or gets someone to steal or sell any property given to them as part of their official work, they can be punished for “criminal misconduct.” The punishment for this offence is imprisonment between 4 and 10 years along with a fine.
As a citizen, you have a right to write (newspaper, periodicals etc.) whatever you like about the Government, or its measures, by way of criticism or comment, so long as you do not incite people to violence against the Government or don’t do with an intent of creating public disorder. Authorship, distribution and circulation are parts of an act of sedition. However, just doing one of these acts may not amount to sedition. It is decided by the Court on a case-by-case basis. If these actions result in public disorder or violence among the people, then those responsible for it would be held liable.
Example: If Mr X, was found in possession of or distributing pamphlets, booklets and letters which discussed a Naxalite organization using violence and guerilla force to fight with the Government, then he is guilty of an act of sedition. These documents themselves show that they are the documents prepared to excite disaffection towards the Government.
The type of places that the army has the power to destroy:
- Places where armed attacks are made usually or are likely to be made or are attempted to be made by suspected persons, or
- Any structure used as a training camp for armed volunteers, or
- Any place utilised as a hide-out by armed gangs or people who are wanted for an offence by the police.
Example: If certain armed people are hiding at a position on a hill or in a house, or anywhere and the army suspects that they may make an attack, the army can seal that area and use arms and ammunition to destroy the hideout.
Prohibiting funds:
If a person has any funds (cash or other resources) which are used for an unlawful association, the Government can pass a written order prohibiting the person from paying, delivering, transferring or dealing with them in any way. However, the Government allows such monetary dealings if they are done according to the conditions given in the written order.
Notifying places used for unlawful associations:
The Central Government can notify any place (house, building, boat etc.) that it thinks is used for an unlawful association, in the official Gazette. The District Magistrate can then:
- Order that non-residents of the place cannot enter or be in it without the Magistrate’s permission. If any person violates this, the Government can remove them from that place.
- Make a list of moveable objects found in the place (not including trivial things like beds, vessels, etc.) in the presence of two respectable witnesses. If the Magistrate thinks that such objects are for an unlawful association (such as account books of an unlawful association), they can prohibit any person from using the objects. The person can then use them only according to the Magistrate’s written orders.
You are breaking the law if you help, suggest or encourage a public servant to commit the crimes of accepting money or gifts in addition to their salary or property from business associates, even if the crime was not successfully committed. You can be sent to jail for a period of 3 to 7 years and will also have to pay a fine.
Example: Rajesh, Ravi’s cousin offers Mukesh (a public servant) a new house in return for appointing Ravi to the post of junior Railway officer. Even if Ravi does not get the post, Rajesh has “abetted” or helped Mukesh break the law.
The punishment for sedition can be:
- jail time up to 3 years and/or a fine, or
- jail time for life and/or a fine, or
- a fine.
Sedition is a non-bailable offence. This does not mean you will not get bail. It just means that bail will depend upon the discretion of the judge.
An armed forces officer can arrest any person in a disturbed area without a warrant for:
- Committing a cognizable offence; or
- If there is a suspicion that a cognizable offence will be committed.
The officer can use force as required to effect the arrest.
When an army personnel arrests a civilian under this law, the law requires the army to hand over the person to the nearest police station immediately.
The law usually requires that a search warrant is obtained by an authority in order to search a place. But under AFSPA, the armed forces have special powers to search a place without a warrant.
The officer can enter and search any premises without a warrant for any of the following acts:
- To arrest someone;
- To recover any person believed to be wrongfully restrained or confined;
- To search any property reasonably suspected to be stolen property;
- To search for any arms, ammunition or explosive substances believed to be unlawfully kept in the premises.
A terrorist act is any act done with the intention to threaten India’s unity, integrity, security, economic security, or sovereignty, or to terrorise people in India or any foreign country, by:
- Using bombs, dynamite, explosive substances, lethal weapons, poisonous gases, other hazardous nuclear substances, etc. likely to cause:
-
- death or injuries to people
- property damage or destruction
- disruption of essential supplies or services
- damage to India’s monetary stability through high quality counterfeit Indian paper currency or coin
- damage or destruction of any property used for India’s defence or for Government purposes
- Forcefully intimidating a public authority or causing their death
- Detaining, kidnapping or abducting any person, and threatening to kill or injure them to force the Government or an international organisation or anyone else to act in a certain manner.
In a scenario where you are being charged for an act of sedition, every copy that exists of the newspaper, book or document which contains the seditious text or material can be taken away by the Government. Particularly, any material which is with you can also be taken away by a police officer who has the power to search your premises and other areas where he suspects that seditious material exists.
If the Central Government believes that an organisation or person is involved in terrorism, it can notify them in the official Gazette as a terrorist or terrorist organization respectively.
The concerned person or organization can apply to the Government to denotify them. If the Government refuses, they can apply for a review to the concerned Review Committee within one month. The Review Committee can order the Government to denotify them.
No one can file any case against any armed personnel, except when there is special permission from the Central Government. Under this law, if a case has to be registered in court against an army personnel or anyone from the armed forces for a crime they have committed, then the court proceedings can only take place when there is permission from the Central Government.
Only a handful of cases have been instituted against army personnel under AFSPA.
Example: Chitrakshi’s husband Sumeysh has been killed by an officer of the armed forces and she wants to file a case against this in a police station. The police station will register her FIR, but to fight her case in the court, she has to seek permission from the Central Government. Only when permission is granted by the Central Government, i.e the Home Ministry, a trial against the officer of the armed forces can be started.
As per the Supreme Court guidelines, there are certain acts which the army should do, and acts which are prohibited. These Supreme Court guidelines are as under:
What should the army do?
Before the Operation
- The army should be carrying out the operations only in areas which are declared as ‘Disturbed Areas’.
- Only an officer who is a JCO (Junior Commissioned Officer), WO (Warrant Officer) and NCO (Non-Commissioned Officer) can open fire or arrest.
- The army has to get information from local civil authorities, before conducting any raids or searches.
- The army should try to keep a representative from the civil administration during such raids.
During the Operation
- Open firing can be done only after due warning to the suspect.
- The army has to make sure that the person(s) is acting in contravention of law and order. Only then can they open fire.
- The army should arrest those who:
- Have committed cognizable offences, or
- Who are about to commit cognizable offences, or
- Person(s) against which reasonable grounds exist to prove that they have committed or are about to commit cognizable offences.
- The army should keep in mind the following directions:
- The army should not harass innocent people.
- The army should not destroy property of the public.
- The army should not unnecessarily enter into houses of people who are not connected to any unlawful activities.
- Women should not be arrested without the presence of female police. Women should only be searched by female police.
After the Operation
- The army should make a list of persons arrested.
- The persons arrested should be handed over to the nearest police station with least possible delay and a detailed police report should also be forwarded with the arrested to the police station.
- If there any delays in handing over suspects to the police, then it must be justified by the army. The least possible delay must be 2-3 hours and it may be extended to 24 hours depending on the situation.
- After a raid is done, a list of arms, ammunitions and other materials should be made and this should be handed over to the police station with the seizure memo.
- The army has to make a record of the following:
- Area where the operation is launched.
- Date and time of the operation.
- Persons participating in such raid.
- Record of the commander and other officers/JCOs/NCOs forming part of the force.
- Medical relief should be given to any person injured during an encounter and if the person dies, the body should be immediately handed over to the police.
While dealing with the Civil Court
- All the directions given by the Supreme Court or the High Court should be followed.
- If any army personnel is summoned by the Court:
- The decorum must be maintained and proper respect must be paid to the Court.
- Questions should be answered politely and with dignity.
- Detailed record of the entire operation should be maintained. The information must be correct and clear.
What should the army not do?
- A person should not be kept in custody for any period longer than required and should be handed over to the nearest police station.
- No force should be used on a person arrested, except if they are trying to escape.
- Third-degree methods, which are methods which cause pain and suffering, should not be used against those arrested or under suspicion to extract information or confessions out of them.
- The armed forces should only arrest a person. They should not do any form of interrogation.
- If any person has to be released, then it must be done through the civil authorities.
- Official records should not be tampered with.
- The armed forces cannot take back a person after they have been handed over to the civil police.
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