Theme: Government

Power of the Army to Arrest Without a Warrant

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.

What are the punishments for unlawful associations and activities?

Crime Punishment
Committing, aiding, or instigating unlawful activities Jail time up to seven years and a fine(( Section 13, Unlawful Activities (Prevention) Act, 1967.)).
Being a member of an unlawful association, participating in its meetings, contributing to it or assisting it Jail time up to two years and a fine((  Section 10, Unlawful Activities (Prevention) Act, 1967.)).
Assisting any unlawful activity of an unlawful association Jail time up to five years and/or a fine(( Section 13, Unlawful Activities (Prevention) Act, 1967.)).
Continuing to be a member of an unlawful association or voluntarily supporting it while having any unlicensed firearms, ammunition, explosive or substance capable of mass destruction, and doing an action that causes loss of human life or serious injury to any person or property If the act leads to a person’s death –  Punishable with death or life imprisonment, and a fine.In any other case – Punishable with jail time between five years and life imprisonment, along with a fine((  Section 10, Unlawful Activities (Prevention) Act, 1967.)).
Dealing with the funds of an unlawful association after the Government has prohibited it Jail time up to three years and/or a fine((  Section 11, Unlawful Activities (Prevention) Act, 1967.)).
Violating Government orders and:

  • Using an object meant for unlawful associations; or
  • Knowingly and intentionally entering a place used for unlawful associations

 

 Jail time up to one year and a fine(( Section 12, Unlawful Activities (Prevention) Act, 1967.)).

Power of the Army to Enter and Search by the Army

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.

What are terrorist acts?

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:
    1. death or injuries to people
    2. property damage or destruction
    3. disruption of essential supplies or services
    4. damage to India’s monetary stability through high quality counterfeit Indian paper currency or coin
    5. 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((  Section 15, Unlawful Activities (Prevention) Act, 1967.)).

Confiscation of Seditious Material

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.(( Section 95, Code of Criminal Procedure, 1973.))

How does the Government regulate terrorist activities?

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 Case Against the Armed Forces

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.

What are the punishments for terrorist activities?

Crime Punishment
Terrorist Activities If it results in death – Punishable with life imprisonment or death, along with a fineIn any other case – Punishable with jail time between five years and life imprisonment, along with a fine(( Section 16, Unlawful Activities (Prevention) Act, 1967.))
Raising funds for terrorist acts Jail time between five years and life imprisonment, along with a fine(( Section 17, Unlawful Activities (Prevention) Act, 1967.))
Organising Terrorist Camps Jail time between five years and life imprisonment, along with a fine(( Section 18A Unlawful Activities (Prevention) Act, 1967.))
Conspiracy Jail time between five years and life imprisonment, along with a fine(( Section 18, Unlawful Activities (Prevention) Act, 1967.))
Recruiting any Person(s) for Terrorist Activities Jail time between five years and life imprisonment, along with a fine(( Section 18B, Unlawful Activities (Prevention) Act, 1967.))
Harbouring a Terrorist Jail time between three years and life imprisonment, along with a fine(( Section 19, Unlawful Activities (Prevention) Act, 1967.))
Associating with or Supporting a Terrorist Organization  Jail time up to ten years and/or a fine(( Sections 38 and 39, Unlawful Activities (Prevention) Act, 1967.))
Raising funds for a Terrorist Organization Jail time up to fourteen years and/or a fine(( Section 40, Unlawful Activities (Prevention) Act, 1967.))
Being a Member of a Terrorist Gang or Organization Jail time up to life imprisonment and a fine(( Section 20, Unlawful Activities (Prevention) Act, 1967.))
Holding Proceeds of Terrorism Jail time up to life imprisonment and a fine(( Section 21, Unlawful Activities (Prevention) Act, 1967.))
Threatening Witnesses  Jail time between three years and life imprisonment, along with a fine(( Section 22, Unlawful Activities (Prevention) Act, 1967.))

Do’s and Dont’s of the Army

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.