A CRITICAL ANALYSIS ON ARMED FORCE SPECIAL POWER ACT

SCHOOL OF LAW

MANIPAL UNIVERSITY JAIPUR

UNDER SUPERVISION OF- SUBMITTED BY-

Mrs.Shilpa Rao Rastogi Mamta (V Semester)

Associate Professor 151301047
B.A. LL.B (Hons)
 CERTIFICATE

This is to certify that Ms. Mamta student of B.A. LL.B (Hons.) second semester school of Law
Manipal University Jaipur has completed the project work entitled A critical analysis on armed
force special power act under my supervision and guidance.
It is further certifying that the candidate has made sincere efforts for the completion of the
project work.

Supervisor Name
Mrs. Shilpa Rao Rastogi
Associate Professor
 ACKNOWLEDGEMENT

I express deep sense of gratitude and ineptness to our teacher Mrs.Shilpa Rao Rastogi under
whose guidance valuable suggestions, constant encouragement and kind supervision the present
project was carried out. I am also grateful to college faculty of law for their feedback and for
keeping us on schedule.
I also wish to express my sincere thanks to my friends who held directly or indirectly by giving
their valuable suggestions.

Mamta
 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................ 5
LEGAL ANALYSIS OF ARMED FORCE SPECIAL POWER ACT ......... Error! Bookmark not defined.
INDIAN LAW PERSPECTIVE .................................................................... Error! Bookmark not defined.
MILITARYS IMMUNITY /LACK OF REMEDIES ................................... Error! Bookmark not defined.
CONCLUSION .............................................................................................. Error! Bookmark not defined.
RECOMMENDATIONS ............................................................................... Error! Bookmark not defined.
WEBLIOGRAPHY..................................................................................................................................... 14
 INTRODUCTION

Jeremy Bentham (1748 - 1832)

"English utilitarian philosopher and social reformer. He first attained attention as a critic of the
leading legal theorist in eighteenth century England, Sir William Blackstone. Bentham's
campaign for social and political reforms in all areas, most notably the criminal law, had its
theoretical basis in his utilitarianism, expounded in his Introduction to the Principles of Morals
and Legislation, a work written in 1780 but not published until 1789. In it he formulated the
principle of utility, which approves of an action in so far as an action has an overall tendency to
promote the greatest amount of happiness. Happiness is identified with pleasure and the absence
of pain. To work out the overall tendency of an action, Bentham sketched a felicific ("happiness-
making") calculus, which takes into account the intensity, duration, likelihood, extent, etc of
pleasures and pains.

In Bentham's theory, an action conforming to the principle of utility is right or at least not wrong;
it ought to be done, or at least it is not the case that it ought not be done. But Bentham does not
use the word 'duty' here. For Bentham, rights and duties are legal notions, linked with the notions
of command and sanction. What we call moral duties and rights would require a moral legislator
(a divine being presumably) but theological notions are outside the scope of his theory. To talk
of natural rights and duties suggests, as it were, a law without a legislator, and is nonsensical in
the same way as talk of a son without a parent. Apart from theoretical considerations, Bentham
also condemned the belief in natural rights on the grounds that it inspired violence and
bloodshed, as seen in the excesses of the French Revolution.

Bentham at first believed that enlightened and public-spirited statesmen would overcome
conservative stupidity and institute progressive reforms to promote public happiness. When
disillusionment set in, he developed greater sympathy for democratic reform and an extension of
the franchise. He believed that with the gradual improvement in the level of education in society,
people would be more likely to decide and vote on the basis of rational calculation of what
would be for their own long-term benefit, and individual rational decision-making would
therefore, in aggregate, increasingly tend to promote the greater general happiness.

Bentham had first-hand knowledge of the legal profession and criticised it vehemently. He also
wrote a highly entertaining Handbook of Political Fallacies 1824, which deals with the logic and
rhetoric of political debate.

Bentham figured prominently among the small number of men who became known
as phlosophical radicals, but his utilitarianism was not much discussed until the latter half of the
nineteenth century. His prolific writings were published in part by devoted disciples, but some
were published for the first time in the 1940s and after, and the publication of his complete
works is still in progress. Among these writings is an analysis of the logic of deontic concepts,
and On Laws in General contains a carefully elaborated theory of jurisprudence."

BENTHAMS UTILITARIAN THEORY

For Bentham, utilitarianism was both a descriptive and normative theory it not only described
how human beings act so as to maximise pleasure and minimise pain, but it also prescribed or
advocated such action.
According to the principle of utility, the cause of all human action, that which motivates human
beings to act, is a desire for pleasure. Utility Or happiness is defined in terms of pleasure: a
thing/action is useful if it brings about happiness, that is, pleasure: By utility is meant that
property in any object, whereby it tends to produce benefit, advantage, pleasure, good or
happiness.
A persons interest also has the same content that of pleasure something is in the interest of a
person when it tends to add to the sum total of his pleasures or diminish the sum total of his
pains. In The Principles, Bentham listed fourteen kinds of simple pleasures that move human
beings including the pleasures of sense, wealth, skill, power, benevolence and malevolence.
Diminishing pain also means more pleasure there are twelve kinds of pain which individuals
seek to avoid for instance, the pains of the senses, or of an ill name.
Not only do individuals behave in this manner, but they use the evaluative terms of good and bad
to name those activities which bring them pleasure or pain. Now this is a position as old as
Hobbes. What is new with Bentham and his claim of utilitarianism being a moral theory is the
advocacy of such action.
What brings about pleasure is morally good, that which leads to pain is evil and should be
avoided, (emphasis added). Human welfare can only be furthered if individuals maximise
pleasure and minimise pain.
As early as 1776, in the Preface to the Fragment, Bentham had written: It is the greatest
happiness of the greatest number that is the measure of right and wrong.
What is so moral about an individual seeking his pleasure? Benthams answer to the charge of
utilitarianism being, instead of a theory of morality, a theory actually of selfish psychological
hedonism is that utilitarianism does not propose that one seek only ones own pleasure.
In deciding whether to act in a particular manner, one has to be impartial between ones own
pleasure and that of all those affected to that act. If all happiness is either the happiness of the
agent himself or the happiness of others, then we can clearly show that utilitarianism is
concerned with the happiness of others.
Let us take the example of punishment if punishment is to have some utility, and to have utility
is to generate happiness, then punishment is obviously not going to make the person who is
being punished happy. It will instead make others happy by making it less probable that the
crime is committed again.
It is true that for Bentham the community is a fictitious entity nothing more than individual
members constituting it. The interest of the community then is the sum of the interests of the
several members who compose it. It remains true, however, that the interests (happiness) of
others are to count as much as the interest of oneself.
The context of ones action determines the circle of individuals affected by it. For government
officials, all the members of their state are affected by their action, so the government has to
calculate the balance of pleasure and pain on a country wide scale. A private individual has to
consider only the pleasures and pains of those few directly affected by his action.
Thus the government is concerned about the happiness or welfare of all its citizens, and the
individual is to think of the happiness of other persons apart from himself- that is then, what
makes utilitarianism a moral theory.
Bentham identified four general motives for human action. The purely social motive of
benevolence moves only a few individuals. Such benevolent individuals purse the happiness of
others even at the cost of their own happiness. An individual acting out of the semi-social motive
of love of reputation or praise pursues others happiness only when it promotes his own as well.
The majority of humankind act out of the social motive of self-interest, when ones own
happiness is pursued, taking care not to cause others pain but not pursuing their happiness either.
Finally, there are some individuals moved by dissocial motives, who actually experience
pleasure by harming others.
Bentham also provided a calculus for determining the balance between pleasure and pain from
any action. According to this specific calculus, one must give a numerical value to the intensity,
duration, certainty or uncertainty, and propinquity or remoteness, of the pleasures and pains of
the persons affected by ones actions, and one must undertake the action only if the value of the
pleasure is higher than the value of the pain.
One should also factor in the fecundity of the pleasure producing act, as well as the purity and
extent of the pleasure being produced. In calculating pleasure and pain, one must be careful to
abstract both from the object which is the source of the pleasure/pain, as well as from the person
whose pleasure/pain is being calculated.
This means that the pleasures everyone is to count as one, and the pleasure from a worthwhile
activity like writing a history of Egypt is not by definition of higher value than that from
gambling with a deck of cards.
Human beings seek happiness, their own and that of others. They ought to seek happiness, their
own and of others. To seek, however, is one thing; the question is, how can they attain what they
seek. What is required, in general, for human beings to reach the happiness they are searching
for? Human happiness, for Bentham, depended on the services men rendered to each other.
Government can ensure these services by creating a system of rights and obligations. Political
society exists because government is necessary to compel individuals to render services to each
other to increase their happinessthis then is how Bentham made the transition from his
utilitarianism to his political philosophy.
 ACT AND RULE UTILITARIANISM

Utilitarianism is a normative ethical theory that places the locus of right and wrong solely on the
outcomes (consequences) of choosing one action/policy over other actions/policies. As such, it
moves beyond the scope of one's own interests and takes into account the interests of others.

Bentham's Principle of Utility: (1) Recognizes the fundamental role of pain and pleasure in
human life, (2) approves or disapproves of an action on the basis of the amount of pain or
pleasure brought about i.e, consequences, (3) equates good with pleasure and evil with pain, and
(4) asserts that pleasure and pain are capable of quantification (and hence 'measure').

In measuring pleasure and pain, Bentham introduces the following criteria: INTENSITY,
DURATION, CERTAINTY (or UNCERTAINTY), and its NEARNESS (or FARNESS). He also
includes its "fecundity" (will more of the same follow?) and its "purity" (its pleasure won't be
followed by pain & vice versa). In considering actions that affect numbers of people, we must
also account for its EXTENT.

We can apply the principle of utility to either PARTICULAR ACTIONS or GENERAL RULES.
The former is called "act-utilitarianism" and the latter is called "rule-utilitarianism."

Act-utilitarianism -- The principle of utility is applied directly to each alternative act in a

situation of choice. The right act is then defined as the one which brings about the best results (or
the least amount of bad results).

Criticisms of this view point to the difficulty of attaining a full knowledge and certainly
of the consequences of our actions.
It is possible to justify immoral acts using AU: Suppose you could end a regional war by
torturing children whose fathers are enemy soliders, thus revealing the hide outs of the
fathers.

Rule-utilitarianism -- The principle of utility is used to determine the validity of rules of conduct
(moral principles). A rule like promise-keeping is established by looking at the consequences of
a world in which people broke promises at will and a world in which promises were binding.
Right and wrong are then defined as following or breaking those rules.

Some criticisms of this position point out that if the Rules take into account more and
more exceptions, RU collapses into AU.
More genearl criticisms of this view argue that it is possible to generate "unjust rules"
according to the principle of utility. For example, slavery in Greece might be right if it
led to an overall achievement of cultivated happiness at the expense of some mistreated
individuals.

Utilitarianism is mainly characterized by two elements: happiness and consequentialism.

Utilitarian happiness is the biggest happiness which (supposetly) every human being looks for. In
utilitarianism everything useful to happiness is good. Therefore, the name of the doctrine is
utilitarianism, based on the principle of utility. Utility is found in every thing which contributes
to the happiness of every rational being. The criterion of good and evil is balanced between
individual's happiness and the happiness of the community, "each counting in an equal way"
(Bentham, Introduction in the principles of morality and legislation). Consequentialism in
utilitarianism is in the fact that an action must be judged for its consequences on the happiness of
the largest number. That is: my search for happiness stops when it decreases the happiness of
another individual or the happiness of the largest number, of the society or the community. As
personal freedom is considered in respect of the freedom of other individuals and of the
community, my freedom stops when it diminishes the freedom of another individual or the well-
being of the society. We could say that utilitarianism is the continuation of Roman legislation,
and its modern aspect is shown in the fact that utilitarianism adds an economical, legislative and
political dimension to an ethical concept, that of happiness and well-being. The modern aspect of
the doctrine will evolve throughout the 19th century, with Bentham, Mill and Sidgwick who
succeeds in giving to this doctrine a practical and rational dimension which we can find in our
modern society, in economics, politics and ethics.

"The continuing vitality of the greatest happiness system is not difficult to understand it
embodies a very natural and compelling model of rationality. This model, which dominates
much of contemporary economics (as well as decision theory, "cost-benefit analysis", and
"public choice theory") sees rational action as an attempt to maximise net utility (i.e. the result of
summing the benefits and costs and subtracting the latter from the former). This view, which is
frequently called "means-end" rationality, goes back (at least) to Aristotle. In the Nicomachean
Ethics Aristotle asserts that "we cannot deliberate about ends but only about the means by which
ends can be attained." If we assume, with Aristotle, that happiness is the "highest good attainable
by action," and hence the aim of politics, we get something very like Bentham's view. Indeed it
is tempting, and not implausible, to interpret philosophers as different as Adam Smith and
Chairman Mao as agreeing that the goal of social institutions is the maximization of realizing
that end.

Of course philosophers who share this vision of the proper function of social institutions like law
and morality may differ on more than the best methods to attain it, as Aristotle noted, there is
widespread agreement that happiness is the goal, but considerable disagreement as to what
constitutes happiness. For Bentham the answer is simple: happiness is just pleasure and absence
of pain. The value (or disvalue) of a pleasure (or pain) depends only on its intensity and duration,
and can (at least in principle) be quantified precisely. Given this, we can reconstruct one line of
Bentham's argument for the principle of UTILITY as something like the following:

1. The good of a society is the sum of happiness of the individuals in that society.
2. The purpose of morality is promotion of the good of society.
3. A moral principle is ideal if and only if universal conformity to it would maximize the
good of society.
4. Universal conformity to the principle of UTILITY ("Act always so as to maximize total
net balance of pleasures and pains") would maximize the good of society

Therefore the principle of UTILITY is the ideal moral principle."

(See the book: The Classical Utilitarians: Bentham and Mill, author: John Troyer, Professor of
Philosophy at the University of Connecticut)

"The origin of the utilitarian doctrine is in the debate, which brought together, during the largest
part of the 18th century, the philosophers of the "moral sense", Shaftesbury and Hutcheson who
tried to find a natural foundation for the moral motivation of spontaneous benevolence that we
feel for someone else and his happiness, and their criticisms (of those philosophers), which we
describe as followers of Hobbes, who, nevertheless, was not utilitarian.

Utilitarianism joins a very long tradition of thought which goes back, to China, from Mo-Tseu
for example, and in Greek philosophy, from, essentially, Aristotle and Epicurus. Then, it offers
the paradox to be, with Kantianism, his contemporary and rival; always so alive as it was more
than two centuries ago: Bentham's Principles of Morals and Legislation was published, indeed,
in 1789, and Kant's Critic of Practical Reason in 1788. And, more specifically, it dominates the
English-speaking world where, unlike in France, the Kantian philosophy had difficulty in being
adopted. The critics which Mill sent to Kant in Utilitarianism in the name of the
consequentialism still seem as valid as they were." (See, Introduction of Catherine Audard et
Patrick Thierry, of the book: John Stuart Mill, L'utilitarisme Essai sur Bentham, PUF, 1998)

Even if utilitarianism exists since a long time, it seems to take a bigger importance in the 18th
and 19th centuries, with the beginning of modern society and the end of the feudalism. Indeed,
the industrial development which occured in Europe in the 18th century entailed important
changes in the behaviour of individuals within the society. So, industrialization, in which France
was, in the 18th century, the leading country, individualized the people of the society. That is,
this new society (or community) which offered to the poorest, to averagely poor men and to the
averagely rich men, to meet their needs without being obliged to be part of a clan or a family
group. During the Middle Ages, the individual could not survive alone, the group was the only
means of survival, whether it was within the city, the big villages or around a Lord's castle in the
countryside. In the Middle Ages an individual could only survive if he was part of a group. The
technological and scientific development and the discoveries of new lands, in 15th, 16th and 17th
centuries, produced the society of the Enlightenment, society which gave birth to individualism
and to the independence of private economy with regard to the State. It is thus in this context that
the "laissez-faire policy" appeared, which bacame finally the creed of utilitarianism in the sense
that as an individual is free to produce his own happiness, and is most aware to know what is
convenient for him, but it also gave more responsibilities to the individual because the
consequence of the individual's acts became very important and fundamental. Indeed, it is here,
in this aspect of utilitarianism that we can see the french influence of Auguste Comte's altruism,
and a general movement of a "humanization" of the European society. And as this society
became richer and "mastered" a little more the nature in which it evolved, as it had financial and
material means which brought a better material comfort it allowed, in the 18th century, an
individualization of the persons, producing then the consideration of the other one as a unique
individual in the same way as each one considered himself as a unique individual, and not as part
of a group. Our modern society is then born.

The "laissez-faire" takes its origin in France. In 1683, during a meeting between Colbert (1619-
1683) and a group of French traders managed by a certain Legendre, who, when Colbert asked
the traders what the French State could do to help them, he answered this:

Let it be, such should be the motto of every public power, ever since the world is civilized ... A
detestable principle that we want to grow but by the lowering of our neighbours! There is
nothing but mischief and malignity of heart that are satisfied with that principle, and interest is
opposed to it. Let it be (laissez-faire), damn it (morbleu) ! Let it be!! (J. Turgot: Eloge de Vincent
de Gournay, Mercure, 1759)

Vincent de Gournay (1712-1759) popularized this motto which characterized the need of
economic and individual freedom which reflects in the 18th century: "let make (laissez-faire),
allow passing, the world goes by itself ". This need of freedom keeps pace with an increasing
individualism which cannot exist without a certain altruism, which finally Auguste Comte
expressed in the first half of the 19th century. Comte expressed a state mind which existed and
evolved throughout the 18th century but which could not be clearly expressed because people
were too busy freeing themselves, physically, economically and intellectually, that they did not
manage to express this altruism born with individualism. Finally individual happiness lauded by
utilitarianism comes inevitably along with an altruism, given that man can only be happy if the
community is happy itself; it is thus necessary to respect the happiness of others by acting in a
way that the consequences of my acts would produce happiness, or, at least, not cause misfortune
to anyone.

Utilitarianism expressed a desire of freedom; it is then a form of liberalism. Indeed, in England,

it evolved in two currents arisen from the influence of Bentham: an economic liberalism and a
social liberalism. The need of freedom arising from the end of the 17th century and during the
18th century developed and expressesed itself much more clearly in the 19th century. Two
currents appeared then: an economical liberalism which will become the capitalism in the 20th
century, and a social liberalism which will become during the 19th and 20th centuries socialism
and later on communism.

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http://www.pucl.org/Topics/Law/2005/afspa.htm

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www.mod.nic.in/

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http://mhrd.gov.in/

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