Friday, 15 November 2019

Three Cheers For AFSPA

Updated: November 19, 2011 1:52 pm

By no stretch of imagination, Jammu and Kashmir Chief Minister Omar Abdullah can be considered a competent administrator. His record in office has been pathetic, to say the least. Yet, he does not deserve flaks for his recent comments to “withdraw” Armed Forces Special Powers Act (AFSPA) from parts of the state. Even Union Home Minister P Chidambaram has backed Omar’s idea, saying that the latter’s statement on AFSPA and that review of AFSPA need to be seen as part of the Cabinet Committee on Security decisions taken in September last year. All told, AFSPA is an abnormal act meant for abnormal situations. If Omar is demanding its withdrawal then that means Jammu and Kashmir is returning to normalcy.

Omar may have a point, if one goes by a recent report of The Hindu newspaper. Based on an analysis of central government data, it has reported that “J&K was more peaceful than many ‘perfectly peaceful’ States—among them, economically vibrant Haryana. In population-adjusted terms, violent deaths in J&K—those of terrorists and security force personnel, as well as murders of civilians, whether terrorism-related or otherwise—were at the same level as in Bihar, and not significantly higher than in Delhi”.

If this is valid, then the critics must revise their harsh views of AFSPA. We all know that Omar, Chidambaram, many Congress leaders and a myriad of Jholawallahs and so-called human rights activists hate AFSPA. They will like the complete “abrogation” (distinct from “withdrawal”) of the AFSPA. Their main argument against the Act was that the AFSPA was worsening the situation in Kashmir (as in Manipur and other north-eastern states). But that has not been the case, if we go by the central government’s latest data and Omar’s demand. In fact, one could legitimately argue that the AFSPA has indeed been able to improve the security situation in Kashmir so much so that it is no longer needed there. In other words, AFSPA deserves three cheers, not condemnations.

The AFSPA is, as has been pointed out, not an ordinary law; it is a special provision envisaged by the country’s Parliament. No international law anywhere allows secession. And under the Indian Constitution, the Article 355 makes the central government duty bound to protect the states from internal disturbance. The AFSPA is meant to be used in these two extraordinary circumstances – secessionist violence and internal disturbance. And that has been the case so far. Right since its inception in 1958, it has been used in the areas that are witnessing secessionist movements – some north-eastern states and Kashmir (since 1990).

Secondly, the Act is applicable to the armed forces (including the paramilitary), not the general police personnel. Only when the latter, working under normal laws, are not able to take control of the situation and armed forces are called into the service, does the AFSPA come into relevance. It provides the armed forces the power to arrest those suspected without warrant, search their places and fire upon, even causing death, those who are acting in contravention of “any law” and those “in assembly of five or more persons” or those who are in possession of deadly weapons.

Obviously, there are conditions attached to the AFSPA and soldiers/officials violating these can always be prosecuted. In fact, available data suggests that since 1990, the security forces have been accused of 1,511 cases of human rights abuse. All of these were thoroughly investigated, including by the National Human Rights Commission. 1,473 cases were found to be completely false and had been possibly instigated by terrorist organisations. Where culpability was established, 104 soldiers, including 40 officers, have been punished in 35 cases so far. But critics question why the armed forces are immune to acting under normal laws such as no searching without warrants and no firing without the magistrarial order. The answer is very simple. If the armed forces cannot do anything on their own and need civilian clearance during their operations, how will be their effectiveness different from that of the normal police and paramilitary forces? And if that is the case, where is the need to call them?

As it is, armed forces have been consistently pointing out that they are not interested in managing internal security. So, those opposing the AFSPA should vent their anger not against the armed forces but the political or civilian leadership, which is summoning them to do the job that is supposed to be done by police and paramilitary forces. If you do not call the army, there is no need for AFSPA.

Thirdly, given the ever-changing nature of violence and the technologies that the secessionist terrorists are using these days, logic demands that instead of surrendering their existing powers as demanded by the so-called civil rights activists, our armed forces need stronger laws to make them more effective.

The extremists, not only operating by stealth and targeting civilian populations but also arming themselves with deadly weapons, raise daunting legal problems. Their conduct is not adequately covered by either a criminal law or the laws of war, though, like national armies, they threaten a state’s territorial integrity and political sovereignty.

It is true that by its very nature, any extraordinary or anti-terrorism law is bound to affect some “individual rights” such as liberty of the individual, privacy, autonomy and freedom among others. But their being invoked is necessitated for “public welfare”. All told, terrorist attacks are, fundamentally, an assault not on individuals or on the liberty of individuals, but on the security and welfare of the people as a whole. And since the fight against secessionism and terrorism is not a normal fight, one has to appreciate the need to transcend the excessive individualism that the blind champions of human rights suggest. It is incumbent on citizens to realise that for the common good, they will not be able to do everything they want to do, whenever and wherever they like and under conditions that only they can dictate. Instead, they will have to think of the good of the community, and, indeed, of the nation, as a whole.

Finally, a word about the armed forces’ role in Kashmir. Contrary to what the habitual army-bashers say, if Kashmir continues to be with India and if any organisation that the ordinary Kashmiri, as distinct from the separatist, is most comfortable with, then it is the Indian Army. In the process, the Army has made tremendous sacrifices, both in terms of men and material. Abrogating the AFSPA or removing some of its key provisions in an attempt to make it ‘humane’ could place the Army (and other security forces) at a great disadvantage in their fight against a vicious insurgency. Any watering down of the Act will result in de-motivating the troops whose lawful actions may expose them to decades of litigation in civil courts.

Let us be proud of our armed forces. They need to be encouraged and strengthened, not maligned.

By Prakash Nanda

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