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(Eeshan Krishnatria is a second year student of National Law University, Jodhpur) In the current paradigm, it has become incrementally necessary for the courts to establish a firm stance in order to stabilize its position. It is relatively recent when the Supreme Court circumscribed its jurisdiction in the Rafael case, wherein the review power possessed by the apex court seemed to be reduced and limited, particularly pertaining to matters of ‘national security’. This article will extrapolate this very issue, but in the cynosure of internal security legislations, specifically the Armed Forces (Special Powers) Act, 1958 [hereinafter AFSPA]. The AFSPA derives its legal prowess from a pre-independence statute, namely, Armed Forces Special Powers Ordinance, 1942. The chief purpose behind this was to suppress the incremental gains of the ‘Quit India’ movement. The Act, as we know it now, was passed with the purpose of containing the lasting insurgency movements which were widespread in Assam and Manipur. It was only after a subsequent executive action that the scope of the said Act was expanded to subsume Punjab and Chandigarh and later Jammu and Kashmir. Analysing the Touchstone to Determine the Role of Armed Forces in Civil Aid The Constitution of India places the proclamation of Martial law in Part III of the document, under Article 34. The provision under this Article provides for reimbursement of the servicemen for ‘any act done in connection with the maintenance or restoration of order in any area’ which has been under the effect of proclamation of Martial law. There is a probable caveat here, as the Constitution itself does not mention specifically the term, ‘Martial Law’ in Part VIII of the Constitution, which houses the emergency provisions. However, there is an intimation regarding the same under Article 355, where it states that “to protect the states from external aggression or internal disturbances.” The Union also enjoys the power to deploy Armed Forces under Item 2 of List I, wherein it can do so ‘in any territory of India, in aid of civil power.’ Due to this, there engenders a pertinent question – Is AFSPA a proclamation of Martial law or deployment of Armed Forces in aid of civil power, as prescribed under Item 2 of List I? Ergo, it presents a constitutional conundrum. A precursor to the proclamation of Martial law is the lack of function, inoperability and inability of the established civil authorities and courts to maintain a standard of law and order. In this respect, the proclamation of Martial law necessarily results in replacing the current civilian law, which might subsequently result in a schism in the ability of the courts to uphold rights. AFSPA seems to be a ‘hard case’ in the Dworkinian sense, primarily because it is not dictated by any precedent.Section 3 of the Act defines the manner in which power is to be balanced between civilian authorities and the military forces in a disturbed area, requiring the latter to ‘act in aid’ of the former. The Supreme Court upheld the constitutional validity of AFSPA, which can be inferred by the following observation of the court : “In our opinion, what is contemplated by Entry 2-A of the Union List and Entry 1 of the State List is that in the event of deployment of the Armed Forces of the Union in aid of the civil power in a State, the said forces shall operate in the State concerned in cooperation with the civil administration so that the situation which has necessitated the deployment of the Armed Forces is effectively dealt with and normalcy is restored.” There is a major hiatus to be filled regarding the constitutional validity and there exists a need to provide a sound and cogent rationale for the Act as most legal scholars are of the opinion that AFSPA is a de facto proclamation of Martial law. It has been said that “When the Supreme Court upheld the constitutionality of the AFSPA, it failed to realize the disturbed area notification for what it truly was–a de facto proclamation of Martial Law”. Since the wordings and the character of the Act are highly ambiguous, it leaves complete freedom in the hands of the Armed Forces owing to its current conduct being superfluous and inordinate at best. Jurisdiction of the Courts to Review Military Actions A grey-area has been gradually engendering which is with respect to the plausibility for the courts to exercise jurisdiction over the actions of Armed Forces in ‘disturbed areas’. The question to be answered here is whether the courts are institutionally competent to review such actions and whether there is a constitutional justification for exercising their jurisdiction over military actions. The Institutional Competency Conundrum : “The exercise of jurisdiction is meaningful only if the court has the institutional competence to delve into the merits of what informs the opinion of the members of the Armed Force under Section 4 of AFSPA.” There is a general skepticism within the courts to adjudicate with regards to matters of national security since there is a lack of institutional competence. An attempt by the court to alter or reduce the powers of the executive is a conundrum in itself as it is in dissonance with the doctrine of separation of powers. In A.K Gopalan v. State of Madras, the court formally acknowledged the powers of the executive and placed its trust in it, while upholding the validity of preventive detention laws, held that it was incapable of entering into the question of what constituted the discretion of the detention authority. However, this was subsequently overruled by R.C. Cooper v. Union of India and later followed up by Maneka Gandhi v. Union of India. In the latter, it was held that a violation of the right to life under Article 21 ought to be informed by a procedure established by law, which necessarily follows the credo of due process. However, such checks and balances are not readily available as they do not find adequate space to operate in matters of ‘national security’ and ‘internal peace’. The Supreme Court has reflected on this judicial gap and has come to the conclusion that there is a need for a review mechanism which shall serve to analyse and review decisions made by the Armed Forces. The Supreme Court has also stated that “Judicial approach by people well-versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. The unjust decision would be subversive of discipline. There must be a judicious admixture of both.” Courts in India must subsume the modus operandi adopted by Courts in other jurisdictions to bring into its reach these areas which have been previously untouched. There are issues pertaining to human rights, which the courts must make an attempt to tackle, regardless of the fact that it is under the veil of national security. However, till date, no such measures have been taken by the Supreme Court and in the current paradigm, it has become exigent for the Apex Court to look beyond the doctrine of ‘separation of powers’ and restore order and equilibrium in the ‘disturbed areas’. Constitutional Justification for Exercising Jurisdiction Over Military Actions : It is axiomatic that the reach and powers of the executive are not absolute. Generally, judicial mechanisms and safeguards are present to check and balance the abuse of the powers of the executive and prevent it from being used unconstitutionally. The organs are not independent of each other in an absolute sense but are intertwined with each other for functional efficiency. Administrative discretion constitutes two elements namely, objective, and subjective. The Courts generally avoid the subjective form of discretion. The power of administrative discretion lies in the hands of the courts. Both the High Court and the Supreme Court exercise the power to review the legality of any administrative action. In contrast, Section 6 of AFSPA states that ‘no prosecution, suit or other legal proceeding shall be instituted’ against any member of the Armed Forces without prior permission of the Central Government. The question now arises whether this provision bars the right of individuals to seek judicial review against the actions of Armed Forces to secure their fundamental rights. Article 226 of the Constitution lends sweeping powers to all the High Courts to review the legality of administrative actions. Under Article 227, the High Court reigns supreme and has an overreach over all the tribunals in India, except those set up by the Armed Forces. However, no such bar exists in the language of Article 226 itself. The ability of the legislature to limit the scope of review jurisdiction of the High Court under Article 226 was discussed in L. Chandra Kumar v. Union of India. The seven-judge bench of the Supreme Court unanimously held that the right to judicial review forms part of the basic structure of the Constitution and that such powers cannotbe removed from the repertoire of the High Court. The Supreme Court, under Article 32 of the Constitution, enjoys similar powers. Now, Article 33(b) stands to limit the scope of review under Article 32 in its “application to members of the armed forces charged with the maintenance of public order, etc.” However, as stated earlier, the court has construed this bar strictly in order to balance the rights of armed personnel with the need for discipline in the army. It has been held that there should be an overt provision by the Parliament preventing such an exercise of the rights which might render Article 32, inoperative. Ergo, one can construe that the sphere or the scope of reviewable content has been gradually expanding. This sphere can certainly not be obstructed by a mere statutory impediment such as Section 6 of the AFSPA, which is only applicable in case of implicating members of the Armed Forces by way of civil or criminal charges. It serves as a check on the undue discretion, in an official capacity, without holding the members of the Armed Forces personally liable. Therefore, it can be inferred that there exists no bar on the Court’s constitutionally stipulated power of review. Recognizing the Touchstone of Review While it is true that each of the fundamental organs must exercise their respective discretion in a circumscribed manner, within their limits. This is true for the executive as well. Keeping this under consideration, it has been observed that ‘there are no unreviewable discretionsunder the constitutional dispensation’. It is the duty of the court to check and ensure the reasonableness while examining the validity of the discretion so exercised. The primary question facing the court is in respect of the standard of review, which is to be exercised to check the legality of an administrative order. Applying the Test of Proportionality : The proportionality test requires the Courts to perform a three-fold function in order to determine the validity and legality of the said administrative order –
These three requirements operate symbiotically and constitute the ‘strict scrutiny’ test, which the court may employ while sitting in a primary review. The court has employed the proportionality test to check reasonability of actions undertaken in the name of public order and even security. The Gauhati High Court has promulgated the perspective that the proportionality test is amenable to review military actions and decisions under AFSPA. This Court reviewed the validity of the Disturbed Area Proclamation in the region and held that there existed no material to justify the application of AFSPA in the concerned states. Ergo, the test of proportionality fits best for reviewing the discretion of the Armed Forces while they act in aid of the civil powers. When the aggravated powers granted by the AFSPA, such as the rights to arrest and detain without a warrant, shoot to kill and other powers of such nature are used as shortcuts or a leeway to justify a larger security interest, there occur gross violations of human rights. Therefore, there has for a long time emerged an exigent need for the extension of the review power of the court over Armed Forces is necessary to check any abuse of power. Conclusion and the Way Forward There are imposing reasons as discussed above, for the courts to adopt an active role to bring the military actions and decisions under judicial review. The primary challenge that is faced by the courts is that these military actions have gone unnoticed and unchecked, for the sole reason that these actions are to promote national security. However, the Courts must not deny the truth behind the veil of ignorance. As a result of these draconian laws being shut off from scrutiny, various violations have taken place, most of which fall into categories such as human rights violations and violation of Constitutional and/or Fundamental rights. This article recognizes the existence of two duties, which are essentially the opposites of each other. The duty is ensuring the security of the State as well as recognizing fundamental rights of its citizens. The approach was undertaken by the government to indicate its commitment towards both is to create laws which bind the Armed Forces by a strict code of conduct. In doing so, it vindicates itself from accountability and it takes refuge behind the garb of national security. The High Courts and the Supreme Court do possess the authority to review these laws and actions undertaken under such laws. The standard of review must be kept optimally high as there is a high probability of gross violation of human rights while operating under Acts such as the AFSPA. The Courts must ensure Constitutional morality, by bringing the ‘disturbed areas’ within its reach and upholding the rule of law.
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