Formal Emergency had been promulgated thrice under the Indian Constitution. The first two were due to external threats, during the Sino-India war (1962) and the Indo-Pak war (1971). The third (1975-77) was on the plea of 'threat by internal disturbances'. It was marked by considerable erosion of public faith in India's democratic institutions, including the judiciary. In its aftermath, for the first time, a non-Congress government was brought to power in New Delhi which promptly signed and ratified the International Covenant on Civil and Political Rights (ICCPR) in 1979. Thereafter, no formal Emergency has been promulgated so far in India.

In the post-Emergency era, the Indian judiciary struggled hard for a face-lift with judicial activism. The mission was to impress the masses, in the words of Justice Krishna Iyer, 'with not just its majesty, but also its justice'. The concept of Right to Life (Art. 21) in the Indian Constitution was expanded. The 'procedure established by law' in the Article was interpreted to be on the lines of 'due process of law' in the American Constitution. A combined reading of Right to Equality (Article 14), Right to Fundamental Freedoms (Article 19) and Right to Life added a whole new 'human rights' dimension to constitutional jurisprudence. International human rights standards were repeatedly read into the fundamental rights of the Constitution. Novel procedures like the Public Interest Litigation (PIL) and the Lok Adalat (People's Court) revolutionised the Indian judiciary.

But it was a completely different story on the North East front. The whole region was already pockmarked with 'disturbed areas'. By September 1980, the whole State of Manipur was declared 'disturbed' under the Armed Forces (Special Powers) Act, 1958 (AFSPA). A large number of Army troops and paramilitary forces of the Central government moved in. Then began the recurrent acts of ruthless atrocity: midnight knocks, enforced disappearances, arbitrary executions, torture, rapes, house breaking, and what not.

A few Manipuri students studying in Delhi got together and formed the Human Rights Forum, Manipur. It moved a PIL in the Supreme Court, challenging the constitutional validity of AFSPA. The petition was admitted as Writ Petition No. (C)5328 of 1980. Two years later, the Naga People's Movement for Human Rights (NPMHR) and the People's Union for Democratic Rights (PUDR) also moved separate writ petitions on the same issue. Subsequently, more writ petitions and Appeals from the High Courts followed. However, the Supreme Court, in its most active phase otherwise, simply slept over the matter for about two decades as the people in the North East bore the brunt of a de facto permanent emergency under the Armed Forces (Special Powers) Act.

It was in the beginning of the 1990s that the international community became aware of the AFSPA as its tentacles spread to Kashmir, the hotbed of South Asian politics, and as it consequently found a mention in the UN Human Rights Commission debates and in reports of the Thematic Special Rapporteur.

In 1991, the UN Human Rights Committee considered the Government of India's Second Periodic Report under ICCPR. A few months earlier, Amnesty International came out with the first reports on Manipur entitled Operation Bluebird : A Case Study of Torture and Extrajudicial Executions in Manipur (AI INDEX: ASA 20/17/90). Human rights activists from Manipur briefed the Committee members on the AFSPA. The Human Rights Committee came down hard on the representatives of the Indian Government on the AFSPA and the Terrorist And Disruptive Activities (Prevention) Act (TADA).

( See Relevant Excerpts from Concluding Observations of the Human Rights Committee on India's Second Periodic Report in Document 3)

It was after such critical observations of the UN Human Rights Committee and of international human rights bodies that the Protection of Human Rights Act, 1993 was enacted by the Indian Parliament. A National Human Rights Commission and a State Human Rights Commission for each State can be established under the Act.

TADA allowed detention of suspects for long periods and the trials were to be conducted in the designated courts only. On the other hand, under the AFSPA, a suspect would count himself lucky if he is only detained and not killed!

However, the imposition of TADA which affected the whole country was discontinued, following a nationwide campaign. But the AFSPA, which is applicable only among the national minorities in the North East, continues to remain in force.

It was from this perspective that the UN Committee on the Elimination of all forms of Racial Discrimination brought up the issue of AFSPA while discussing India in 1996. The Concluding Observation contained in UN document CERD/C/304/Add.13 of 17 September 1996 reads as follows:

15. The Committee is seriously concerned that the Kashmiris, as well as other groups (Read, the Manipuris), are frequently treated, on account of their ethnic or national origin, in ways contrary to the basic provisions of the Convention.

16. Clause 19 of the Protection of Human Rights Act prevents the National Commission on Human Rights from directly investigating allegations of abuse involving the armed forces. This is a too broad restriction on its powers and contributes to a climate of impunity for members of the armed forces.

Till date, the most detailed discussion on AFSPA within the UN human rights treaty bodies was in July 1997 at Geneva, when the UN Human Rights Committee considered the Third Periodic Report of India. Human rights defenders from Manipur and Assam were able to apprise the members of the Committee with detailed reports, with supporting documents, of human rights abuses under AFSPA.

The Committee questioned the Government of India representatives on the wide ranging powers given to the armed forces and the de facto state of emergency in Manipur which, in fact, dominated the deliberations of the Committee. Finally, the UN Human Rights Committee, in its Concluding Observations said :

18. The Committee remains concerned at the continuing reliance on special powers under legislation such as the Armed Forces Special Powers Act, the Public Safety Act and the National Security Act in areas declared to be disturbed and at serious human rights violations, in particular with respect to Article 6,7,9 and 14 of the Covenant, committed by security and armed forces acting under these laws as well as by paramilitary and insurgent groups. The Committee, noting that the examination of the constitutionality of the Armed Forces (Special Powers) Act, long pending before the Supreme Court is due to be heard in August 1997, hopes that its provisions will also be examined for their compatibility with the Covenant.

In this respect, bearing in mind the provisions of Article 1, 19 and 25 of the Covenant, the Committee endorses the views of the National Human Rights Commission to the effect that the problems in areas affected by terrorism and armed insurgency are essentially political in character and that the approach to resolving such problems must also, essentially, be political, and emphasizes that terrorism should be fought with means that are compatible with he Covenant.

19. The Committee regrets that some parts of India remains subject to declaration as disturbed areas over many years Ð for example, the Armed Forces (Special Powers) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer Ð, and that in these areas, the State party is in effect using emergency powers without resorting to Article 4, paragraph 3, of the Covenant.

The Committee recommends that the application of these emergency powers be closed monitored so as to ensure its strict compliance with the provisions of the Covenant.

(See Relevant Excerpts from Concluding Observations of the Human Rights Committee on India's Third Periodic Report in Document 4)

The UN Human Rights Commission was kept in the dark on the actual situation in the North East by the Government of India, despite repeated official requests from Mr. Leandro Despouy, the UN Special Rapporteur on States of Emergencies, who was conducting a study for the Commission. The Government of India refused to admit that an undeclared state of emergency existed in the North East under AFSPA.

However, NGOs have filled in the information gap to some extent. Other Thematic Special Rapporteurs and the Working Groups of the Commission have, of late, started commenting on the issue. Mr. Bacre Waly Ndiaye, the then Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, [UN document E/CN.4/1998/68/Add.1 of 19 December 1997 (para. 203)] reported as follows:

...the Special Rapporteur's attention was particularly drawn to reports indicating the existence of a pattern of killings in the State of Manipur. Civilians, including2 women and children, as well as suspected members of armed opposition groups are reportedly killed b2ªy members of the armed forces, many of them allegedly deliberately and arbitrarily. The Armed Forces (Special Powers) Act of 1958 reportedly gives them widespread powers to shoot to kill and protect them from prosecution for any acts carried out under its provisions. The situation is further aggravated by the restrictions placed on access to the region by the Government. The result of this policy is a climate in which security forces are able to use excessive force with impunity.

The Court Stirs

As assured by India's representative to the UN Human Rights Committee in August 1997, a five-member Constitution Bench of the Supreme Court headed by the Chief Justice J.S. Verma, finally heard the petitions challenging the AFSPA. The National Human Rights Commission too reportedly played a role.

Many legal luminaries argued on behalf of the petitioners. The Attorney General of India Mr. Ashok Desai, who also headed the Indian delegation to the UN Human Rights Committee on the Third Periodic Report, appeared on behalf of the Indian Government.

The Act was challenged on various grounds: the Parliament was not competent to enact the legislation; it was a colourable legislation; it subjugated and displaced the civil authority; the arbitrary and unreasonable power granted to the armed forces violated the fundamental rights of a citizen, etc.

It was all in vain. On 27 November 1997, the Supreme Court of India upheld in toto the constitutionality of the Armed Forces (Special Powers) Act, 1958. (See Operative Part of the Judgement in Document 5)

The Judgement did make some cosmetic recommendations to check the flagrant abuse of the Act. But, for the people living under the shadow of the Armed Forces (Special Powers) Act, 1958, it was practically useless.