Colonial Legacy

On August 15 1942, the then British India government introduced the Armed Forces (Special Power) Ordinance, 1942, which was signed by Linlithgow, Viceroy and Governor General, and GH Spencer, Secretary to the Government of India. The Ordinance gave special powers upon officers above the rank of the captain in the British army and the application of the Ordinance extended to British India. The Ordinance was passed by the Legislative Department of the Government of India primarily in reaction to the Quit India movement in 1942.

In 1958, the Parliament of Independent India enacted the Armed Forces Special Powers Bill, 1958. The rationale in justification of the Bill is reflected in the opening remarks of the parliamentary debate on the Bill by the then Minister of Home Affairs, GB Pant when he said: ‘They (the Naga hostiles) are indulging in arson, murder, loot, dacoity, etc. So, it has become necessary to adopt effective measures for the protection of the people in those areas. In order to enable the armed forces to handle the situation effectively, wherever such problems arise hereafter, it has been considered necessary to introduce this Bill.’ It was enacted in response to the Naga movement for sovereignty. 

When enacting extra-ordinary powers, policy makers have time and again resorted to article 352(1) of the constitution which confers upon the President of India the power to declare emergency in a situation of “external aggression or internal threats.” This argument has been successfully used in equating the enactment of special powers to addressing issues of national security concerns. While the rationale which suggests that enactment of special powers secures national security is faulty and contradicting by nature, it has become the punch line. 

This perhaps is best demonstrated by the 1997 Supreme Court judgment, which while expressing concerns over violations of human rights committed under the Armed Forces Special Powers Bill, still passed a judgment declaring it constitutional, largely because of its perceived relation to issues of national security. The concerning aspect about this judgment was the composition of the five-member bench consisting of all senior Justices, including the Chief Justice of India; who later went on to head the National Human Rights Commission. 

The British enacted Armed Forces Special Powers Ordinance, 1942 and the Armed Forces Special Powers Bill, 1958 is similar in scope and intent, including providing legal immunity to soldiers acting under these special powers. The one visible difference around accountability between the two was; the 1942 Ordinance empowered an officer not below the rank of a captain the power to shoot to kill, while the 1958 Bill empowered any non-commissioned officer the power to shoot to kill. In this sense the 1958 Bill poses a greater threat to democratic rights and specifically, the right to life.

The proposition by the Army Chief General JJ Singh that the power to shoot should vest in a junior-commissioned officer, rather than a non-commissioned officer only suggests reverting to the Armed Forces Special Powers Ordinance, 1942, introduced to repress the Quit India Movement. In effect, this does not diminish the extra-ordinary scope of the powers; it only deals with accountability within the ranks and hence the protection of civil and democratic rights remains unresolved.  

To strengthen India’s democratic framework, the Armed Forces Special Powers Bill, 1958 should be repealed and political processes must be initiated to address conflicting issues that necessitated the enactment of such extra-ordinary powers in the first place.