IV. REVIEW OF LAWS, IMPLEMENTATION OF TREATIES AND OTHER
INTERNATIONAL INSTRUMENTS OF HUMAN RIGHTS

NATIONAL HUMAN RIGHTS COMMISSION, ANNUAL REPORT 1997-98

(A) ARMED FORCES (SPECIAL POWERS) ACT, 1958

4.1 In its preceding report, the Commission outlined the nature of the representations that it had received from a number of civil liberties groups in respect of the Armed Forces (Special Powers) Act, 1958 and, in particular, the concerns that they had expressed in respect of Sections 3, 4 and 5 of that Act. It was argued in these representations that the powers conferred by the Act were too vast and sweeping and that they posed a threat to the fundamental rights and liberties of the citizenry of the areas covered by the Act.

4.2 In the light of these representations, the Commission took a decision to seek to be impleaded in the proceedings pending before the Supreme Court in respect of the Act and to assist the Court by placing the Commission's views before it on the issues that had arisen in that connection. Prior to doing so, the Commission considered that it would be useful to arrange a free and frank discussion, with those principally concerned, on the constitutional and legal issues involved and also on the practical problems faced both by the armed forces and by the citizenry in the areas where the Act was being applied. Accordingly, such a discussion was held on 13 May 1997, at which were present the senior-most officers of the Armed Forces, the Secretaries of the Defence and Home Ministries, eminent jurists and others who could throw light on the subject, including leading academics and representatives of non-governmental organizations.

4.3 The views of the Commission were, thereafter, placed before the Supreme Court with the permission of the latter, and the position was taken, inter alia, that the Act lacked temporal and spatial limitations and that it bestowed draconian powers that could be exercised by non-commissioned officers on the basis of their subjective satisfaction.

4.4 By its order of 27 November 1997, the Supreme Court held that a declaration under Section 3 of the Act designating any area as disturbed (thereby giving special powers to non-commissioned officers and other officers above this rank) has to be for a limited duration and that there should be a periodic review of the declaration before the expiry of six moths. The Court further ordered that:

• While exercising powers under Section 4(a) of the Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.
• A person arrested and taken into custody should be handed over to the officer-in-charge of the nearest police station, with least possible delay, so that he can be produced before the nearest Magistrate within 24 hours of such arrest excluding the time taken for the journey from the place of arrest to the court of the Magistrate.
• The provisions of the Criminal Procedure Code governing search and seizure have to be followed during the course of such operations conducted in exercise of the powers conferred under the Act.
• While exercising the powers conferred under clauses (a) to (d) of Section 4, the officers of the armed forces should strictly follow the instructions contained in the list of 'Do's and Don'ts' issued by the army authorities which are binding and any disregard of these instructions would entail suitable action under the Army Act.

4.5 The Commission recommends that the concerned Ministries issue carefully formulated guidelines to all concerned personnel of the Armed Forces and Para-military Forces, based on the order of the Supreme Court.