Thursday, 9 July 2020

AFSPA Needless Controversy

Updated: November 19, 2011 1:55 pm

The clamour for the removal of the Armed Forces Special Powers Act (AFSPA) has grown shriller with Chief Minister Omar Abdullah hinting at the possible revocation of the special act from the four districts of J&K. The AFSPA was promulgated in J&K at the outbreak of insurgency in 1990. As it became no longer possible for the state and central police forces to contain the deteriorating security situation, the state was brought under President’s rule and the army called in. The Disturbed Areas Act was made operational in all the districts of the state enabling promulgation of the AFSPA.

The primary role of the armed forces is to defend the country from external aggression. The two acts, therefore, are a pre-requisite for the armed forces of the Union to operate in special internal security situations like the ones being witnessed in J&K and the North-East. The CrPC contains similar provisions for the police and central police forces to operate in such situations. India being a democratic country, the employment of the armed forces in internal security duties was not envisaged by the drafters of the Constitution and it contained no provision for them to operate within the country for a prolonged period of time. The army can only operate at the request of the state governments in aid to civil authority or in internal security duties such as riot-control, etc. The deployment of the army and powers to open fire are strictly implemented at the instructions of the District Magistrate concerned. However, counter-insurgency situations are a completely different ball game. Here, the army has to operate in a vast area where the writ of the civilian administration is virtually non-existent. The anti-national elements or militants operating in greater numbers are widely dispersed and are well trained and equipped, often by an external player. The local population is either subverted or coerced into supporting the militants’ cause. Under these prevailing conditions, the Army deployment is often prolonged and requires special provisions for even its basic functioning such as carrying out routine administrative movements and operations.


 WHY AFSPA SHOULD CONTINUE


The Chief Minister of Jammu & Kashmir, Shri Omar Abdullah has recently suggested that the provisions of the armed forces (Special Powers) Act, 1958 be made inapplicable to some parts of the State of Jammu & Kashmir. This has triggered a controversy since the security forces and the Ministry of Defence have consistently maintained that the enforcement of the provisions of the Act in the State of J&K is necessary. It is therefore necessary to examine the provisions of the law and the need for their enforcement and applicability to the state.

Jammu & Kashmir has been a disturbed area for more than two decades. It has been the victim of cross border terrorism. Certain domestic groups have also disputed the status of the state as an integral part of India. It is an effort of the entire country and the state administration that peace and normalcy in the state should be restored and that the people of the state should be protected from any form of violence or subversion. Terrorism and separatist violence needs both a political and security response. The security response may adversely impact on the day-to-day civilian life. It is harsh but necessary. In case there is laxity in terms of security the inevitable consequences would be that deterrence of those indulging in violence and separatist activities would disappear.

Beside the state police, the ‘armed forces’ of the Union also assist the administration. The ‘armed forces’ are not merely the army and certain other military forces but they also include other armed forces of the Union, namely, Border Security Force, CRPF, Assam Rifles and ITBP. Once the whole state or a part of the state is declared a ‘disturbed area’ the armed forces are called in aid of the civil powers in order to maintain peace and tranquility in the state.

Armed forces do not investigate crime. Their personnel are entitled to take necessary steps for maintenance of public order and use force after giving due warning to those who threaten law and order. They can enter a premises and search them. They can destroy any dumps or fortified shelters from which armed attacks are made. They are entitled to arrest without warrant and even take the arrested person to the nearest police station without delay along with a report of such arrests. Thus, with regard to declaration of an area to be a disturbed area it is an assessment and opinion formed by the government that the civilian administration and local state police are not enough to maintain the law and order in the state. If the local police alone can maintain law and order in the State, the declaration of that area to be a disturbed area would not be necessary. The decision thus to continue the state or a part of the state as a disturbed area or otherwise has to be taken on security considerations and not political considerations. Even in districts where the army is withdrawn, the CRPF and other armed forces are still deployed. The local state police would be inadequate in most of these districts also. The powers given to the armed forces of the Union are not substantially different from the powers which the local police have. The local police can also make arrests, searches for the purpose of maintaining law and order. They can also use reasonable force required to maintain peace and tranquility. They can also destroy any arm dumps or fortified positions or shelters from where armed attacks are made by violent groups.

The only protection provided to the armed forces of the Union is that before any prosecution, suit or legal proceeding is initiated against any personnel of the armed forces for acting under this Act, prior sanction of the Central government would be necessary. When I visited the state last year as a part of the all-party delegation I was informed by the officers of the para military forces that more than 2500 applications for prosecuting personnels of armed forces were pending with the Central government. The Act, therefore, gives protection to the personnel of armed forces that they cannot be prosecuted without the sanction of the Central government. In case this protection is withdrawn it would empower various vested interests to prosecute officials of the armed forces and other para-military forces indiscriminately. Obviously, this would dis-incentivise personnel of these forces from taking adequate steps against the separatist groups. When the security forces are in favour of retention of this law, it would be highly imprudent to allow anyone to seriously argue that political considerations require that this law be withdrawn or its enforcement be restricted only to certain areas. We seriously hope that a situation does emerge in future that the applicability of this law is either not necessary or is restricted only to some areas. That situation does not seem to have arrived as yet. The withdrawal of this law would leave the administration of the unprotected districts only in the hands of the local police and thus incentivizing the separatist and violent groups to increase their activities in these areas. It would, therefore, be politically more prudent for the Chief Minister of Jammu & Kashmir not to initiate a debate at a stage when circumstances still warrant the continuation of the operation of the law.

 By Arun Jaitley


The AFSPA is only an enabling provision for the army to operate in extra-ordinary situations prevailing within the country. The act offers basic protection and provision for the army to fire in self-defence, carry out searches and detain suspects. These are essential tactical requirements for troops engaged in counter-insurgency operations. As the Constitution of India provides for fundamental human rights and freedom to every citizen of the country, the army operating without the AFSPA would be in violation of the Constitution. Therefore, the act provides basic safeguards and immunity to troops operating in disturbed areas. In fact, contrary to popular perception, the AFSPA imposes tremendous self-restraint on soldiers. For instance, it provides for opening fire only when fired-upon. In many tactical situations while operating against an often un-known and hidden enemy, this imposes great risks on the personal safety of the soldiers. Be that as it may, a false impression has been created by certain human rights groups and vested interests that the AFSPA is a draconian act which provides immunity to the army in conducting excesses on the population. This is not true as even the AFSPA calls for suspects to be handed over to the civil police within 24 hours (maybe extendable up to 48 hours in remote areas) off and requires the police/CPOs to accompany army troops in conducting cordoning-off and search operations in villages. There are other stringent documentation measures such as apprehension roles, seizure memos, etc which are binding on security forces personnel. So, what needs to be understood is not the problem in AFSPA but in its violation by the security forces personnel. These aberrations are adequately dealt with by the army.


 AFSPA AN INSTRUMENT OF OPPRESSION?


The proposal of Chief Minister of Jammu and Kashmir Omar Abdullah to withdraw the Armed Forces Special Powers Act (AFSPA) from some parts of the Kashmir Valley is a significant step towards making J&K a normal place to live in. The debate on whether AFSPA has fulfilled its purpose can go on. But the Central government data, which show that J&K is more peaceful than many ‘perfectly peaceful’ states suggest that the war to restore peace has been won to some extent. The people of J&K have a right to live in a free environment. For Kashmiris, the withdrawal of AFSPA would be like a dream come true. For, in the garb of AFSPA, a section of the Army has reportedly unleashed a reign of terror in Kashmir.

The armed forces Special Powers Act was passed on September 11, 1958, by the Parliament of India. Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill based on a mere suspicion that it is necessary to do so in order to “maintain the public order”.

The AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of “aiding civil power”. It was first applied to the north-eastern states of Assam and Manipur and was amended in 1972 to extend to all the seven states in the north-eastern region of India. They are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the “seven sisters”. The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. This legislation is sought to be justified by the Government of India, on the plea that it is required to stop the north-eastern states from seceding from the Indian Union.

The Act has been employed in Jammu and Kashmir since 1990. It was withdrawn by the Manipur government in some of the constituencies in August 2004 in spite of the Central government not favouring withdrawal of the act. In December 2006, responding to what he said were ‘legitimate’ grievances of the people of Manipur, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was ‘humane’ on the basis of the Jeevan Reddy Commission’s report, which is believed to have recommended the Act’s repeal (See box for details).

Violence has increased in the past two decades since enforcement of the Act. The state has created a “Gallantry Awards” pool for the arms forces which are awarded for elimination of insurgencies and conduction of operations. The term ‘encounters’ is used by the security forces to describe confrontations where it is deemed appropriate, under the provisions of the act, to employ violence.

The existence of the Act can be traced back to the Jammu and Kashmir Disturbed Areas Act (DAA), 1990. A temporary law, it was supposed to expire on July 18, 1992. It was re-enacted as President’s Act in 1992 under Article 356 of the Constitution which gives the authority of legislating on J&K to the Parliament. The AF(J&K)SPA received the assent of the president of India on September 10, 1990 and was implemented from July 5, 1990. It applies to the areas declared ‘disturbed’ by state or the central government (under its section 3) for “the military forces and the air forces operating as land forces and includes any other armed forces of the Union so operating”.

Just the next day, the Governor’s administration declared all the six districts in Kashmir disturbed under section 3 of the armed forces (Jammu and Kashmir) Special Powers Ordinance, 1990. Thus, both the acts existed at the same time until 1998. The major difference between the DAA and the AFSPA was that DAA applied to the state-controlled security forces as well.

The DAA 1992 was to lapse in 1997. The Farooq Abdullah government replaced DAA 1992 by DAA 1997 for one year. After that the Act lapsed. But the lapsing of the Act did not mean that the districts would cease to be disturbed. In fact government had invoked the armed forces (J&K) Special Powers Act for all these purposes even for declaring the areas disturbed. In 2001, the entire Jammu division including the districts of Jammu, Poonch, Rajouri, Doda, Kathua and Udhampur were brought within the ambit of ‘disturbed’ areas according to the provisions in the AFSPA by the same state government.

The AFSPA gives the powers to the union armed forces to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area” and “arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists” and to “enter and search, without warrant, any premises”.

What sets the law in contravention to the established human rights is the impunity offered to the armed forces. The section 7 of the law which offers impunity to the army personnel states, “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” The same section has been invoked by the army in Pathribal, Haigam as well as Ganderbal killings, to shield the accused. In the Pathribal case the investigation was carried out by the CBI, and it indicted five Army officers including a Brigadier for killing five civilians and dubbing them militants. The CBI presented a challan against them in Court of Chief Judicial Magistrate, Srinagar.

The army, after its appeal on jurisdiction was rejected in the state high court, approached the Supreme Court challenging the jurisdiction of the CBI to file charge sheet against, army without sanction from the central government. Section 7 of the armed forces Special Powers Act, 1990 was invoked again. After the imposition of a stay order, the case is pending before the apex court. The same is done in Haigam and in Ganderbal cases.

Wherever the case has not been taken to court as of now, the state government applies for sanction for prosecution to the central government. The state home department of Jammu and Kashmir, replying to an RTI application by the Jammu Kashmir Coalition of Civil Society (JKCCS) states that till 2011 they have applied for sanctions for prosecution from Ministry of Defence and Ministry of Home Affairs under section 7 of AFSPA in 50 cases. Out of these 50 cases, 31 pertain to Ministry of Defence and 19 others have been sent to Ministry of Home Affairs. According to the state home department, sanction for prosecution is awaited in 16 cases and declined in 26 cases. It claims sanction for prosecution has been “recommended” in eight cases.

No doubt, the Valley is calmer, if not completely peaceful. The statistics of crime-related deaths clearly shows that the state has a better civilian safety record. It would be very appropriate for the Centre to consider the early withdrawal of AFSPA from the state. It will also encourage the people of J&K to join the mainstream of social development and resist the influence of extremist elements.

 By Ashok Kumar


Coming back to the proposal of withdrawing the act from Srinagar, Budgam, Udhampur and Jammu districts of J&K—while militancy is virtually absent from the latter two districts of Jammu division, the levels of violence has come down considerably in Srinagar and Budgam districts of the Kashmir valley. Although sporadic incidents of grenade-lobbing is not infrequent, especially in Srinagar city. But, it is also true that the densely populated parts of downtown Srinagar are often utilised by militants as their hideouts. Abdullah Uni, the North Kashmir divisional commander of the LeT who was finally gunned down in Sopore recently, was known to frequent Batamaloo locality on a motor-bike. Also on March 10, the J&K Police had gunned down two JeM militants including its chief operations commander in Kashmir on the banks of the Dal Lake. In this, a parallel may be drawn to the consequences of removing AFSPA from the municipal limits of Imphal in 2004. The militants simply moved into Imphal and carved safe havens. The levels of violence subsequently increased not only in Imphal but in other parts of the state as well. Although the army does not operate in Srinagar city, it conducts specific intelligence-based operations in support of the police as and when required. For instance, on October 21, 2010, three JeM militants were killed by the army in Maloora locality on the outskirts of the city.

In the light of above, can there be a guarantee that militants would not create a safe haven in Srinagar city or stash arms caches or would they also be governed by a law not to operate in the areas where AFSPA has been revoked? The answer is an unequivocal no. Therefore, even if the CRPF and Police can manage the security situation in Srinagar and Budgam districts, the army can still not operate in case there is a sudden exigency like a fidayeen or suicide attack. Leave alone operating, the army has a substantial presence in and around Srinagar city. Its corps headquarters, the nerve-centre of all counter-insurgency operations in the valley is located at Badami Bagh and there are several other garrisons at Batamaloo (Tattoo Ground), Zakhura, Rangreth, Old Airfield, Srinagar Airport, Sharifabad (Shalateng) and Khrew. A Rashtriya Rifles sector headquarters with at least two battalions are located in Budgam district. Hundreds of army vehicles move every day on National Highway 1 to other parts of the state and between these garrisons. In the eventuality that a convoy is attacked by militants in Srinagar or Budgam and the army retaliates in self-defence, will the soldiers be hauled up in a court of law for violation of human rights or a separate provision of law would govern actions of the army in non-AFSPA areas? Therefore, removal of AFSPA will impose tremendous logistical and administrative challenges on the army for carrying out its operational tasks on the line of control and elsewhere in the state.


 BPJ REDDY COMMITTEE


 In 2004, in the wake of intense agitation that was launched by several civil society groups following the death of Thangjam Manorama, while in the custody of the Assam Rifles , Union Home Minister Shivraj Patil visited Manipur and reviewed the situation with the concerned state authorities. In the same year, Prime Minister, Manmohan Singh assured activists that the central government would consider their demand sympathetically.

The central government accordingly set up a five-member committee under the Chairmanship of Justice BP Jeevan Reddy, former judge of the Supreme Court. The panel was given the mandate of “review[ing] the provisions of AFSPA and advis[ing] the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act.”

The Reddy committee submitted its recommendations on June 6, 2005. However, the government failed to take any concrete action on the recommendations even after almost a year and a half. The then Defence Minister Pranab Mukherjee had rejected the withdrawal or significant dilution of the Act on the grounds that “it is not possible for the armed forces to function” in “disturbed areas” without such powers.

The 147-page report recommends, “The armed forces (Special Powers) Act, 1958, should be repealed.” During the course of its work, the committee members met several individuals, organisations, parties, institutions and NGOs, which resulted in the report stating that “the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness.” The report clearly stated that “It is highly desirable and advisable to repeal the Act altogether, without of course, losing the sight of the overwhelming desire of an overwhelming majority of the [North East] region that the Army should remain (though the Act should go).”

But activists say the Reddy panel despite its recommendation for the ‘repeal of the Act’ has nothing substantial for the people. The report recommends the incorporation of AFSPA in the Unlawful Activities (Prevention) Act, 1967, which will be operable all over India.


The Omar Abdullah government would do well to explore other political, social and economic measures to reap the dividends of the peaceful security environment in the state. The visibility of the army can be reduced further from the urban areas. In addition, measures such as frisking and cordoning and search operations by the CRPF in Srinagar city have been brought down considerably. AFSPA is a technical requirement for the army as long as the proxy-war situation prevails in J&K. Although the level of violence is at an all-time low and tourism is burgeoning, the worsening security environment in Afghanistan and Pakistan can have a bearing on the situation in J&K. While the army is capable of tackling terrorists on the line of control itself, there can be no guarantee of zero-infiltration or terrorists using other routes to enter the state. The Indian army has lost more than 1570 officers and men in maintaining the peace in the state since 1990. It has exercised tremendous restraint in conducting counter-insurgency operations even in the face of grave provocations. Human rights excesses are dealt with severely and every soldier is provided with guidelines in the form of the ‘Ten Commandments’ for conducting operations. The reported incidents of human rights violations have also come down substantially over the years and the issue of AFSPA and rights violations need to be viewed separately. Violations can occur even without AFSPA as these are isolated incidents carried out by an individual soldier who may have gone astray. Unfortunately, removal of AFSPA has become an emotive issue and is seen in some quarters as the panacea for all ills. It should be remembered that the army was not responsible for bringing about insurgency and AFSPA is only an enabling provision for it to battle the insurgents or terrorists. A solution to the problem also has to be found outside the military or legal realms.

 By Rohit Singh

(The author is an Associate Fellow at Centre for Land Warfare Studies, Delhi)

 

 

 

 

 

 

 

 

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