AFSPA: WHY THE ACT IS REQUIRED

If there has been consistency over any one demand made by a section of civil society, academics and certain political parties over the years, it has been the demand to repeal the Armed Forces Special Powers Act (AFSPA). Continuing protests against the provisions of AFSPA are a testimony to the fact that on this issue, the Army has not been able to project its viewpoint in the public domain. Many people across the country now perceive the Act as a draconian piece of legislation. To that extent, social and civil rights activists and a variety of NGOs and militant groups campaigning for its removal have been successful in shaping public opinion on this score. While this betrays a poor understanding of the security environment in which the armed forces operate as also ignorance about internal Army procedures in upholding the rights of individuals in the areas where the Act is operative, the fact remains that the Army has not been able to counter this perception. 

The issue has been debated from the standpoint of human rights with a great deal of emotion, and serious aspersions have been cast on the conduct of the security forces. Over time, the narrative has become one sided as the security forces lack a forum to express their concerns and challenges. Issues thus remain misunderstood, which further vitiates an already charged atmosphere. It is important to understand that in the Indian context, the Armed Forces do not have a say in the imposition of AFSPA. That is a decision that the political leadership has to take. Constitutionally, the Army does not have a mandate to operate in internal security duties. If it is required to do so, special constitutional provisions have to be made to permit such employment. 

The framers of the Indian Constitution, despite their brilliance and acumen, did not foresee an eventuality, where the nation’s armed forces would be used against their own people. This is understandable because in the euphoria of gaining Independence, few in India could have visualised the fissiparous tendencies that led to armed secessionist movements, and which required both force and political acumen to resolve. Many in  the Indian establishment at that time were under a mistaken belief that India had no enemies, so leave aside using the Armed Forces against internal actors, there was no necessity felt by luminaries such as J.L. Nehru, India’s first Prime Minister, for keeping an army at all! The Constitution of India was hence silent on the employment of the Armed Forces in internal security duties, because such a possibility at that time was perhaps too far fetched to fathom. However, such a necessity became painfully obvious when the civil administration expressed its helplessness to deal with the armed insurrection that erupted in Nagaland in 1958. The Centre thereafter acted swiftly, the President of India promulgating on 22 May 1958, the Armed Forces (Assam and Manipur) Special Powers Ordinance, 1958, which gave the Armed Forces the power to operate in the disturbed areas in the State of Assam and Union Territory of Manipur. Later the Ordinance was replaced by the Armed Forces (Special Powers) Bill, which received Presidential assent on 11 September 1958. It came on the Statute Book as THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 (28 of 1958). It was later extended to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, on July 05, 1990. The Act initially covered areas in the Kashmir Division of the state. Subsequently, in August 2001, it was extended to the Jammu Division too.

The Act has six sections, the first giving out the short title and extent of the Act and the second defining various terms as to their meaning. Section 3 empowers the Constitutional head of any state to declare the whole or any part of the state to be a disturbed area. Only after such declaration can the Armed Forces be employed to deal with the situation. Section 4 of the Act grants enabling powers to the military, once an area has been declared as disturbed. This includes the use force if required against a person acting in contravention of the law, even to the extent of killing a person for the commission or suspicion of the commission of offences, the power to destroy any arms dump or fortified position from which armed attacks are being made or likely to be made and the power of search and arrest without a warrant. Section 5 provides for an arrested person to be handed over to the police with the least possible delay. Section 6 provides protection to persons in respect of anything done or purported to be done in exercise of the powers conferred by the Act.

Activists agitate against the provisions of Sections 4 and 6, believing them to be too harsh and open to misuse and demand that the provisions be withdrawn or made less stringent. The Army views the Act as enabling, without which they will be unable to perform in the highly volatile and violence prone situation prevailing in the areas they have been tasked to operate. Evidently, if the situation is so out of control that the local police forces and the Central Armed Police Forces (CAPF) are unable to deal with it, then the situation is an extraordinary one, requiring additional powers. This lies at the heart of the debate. 

In the wake of the intense agitation launched by various civil society groups in Manipur following the death of Kr. Th. Manorama Devi in July 2004 and the earlier indefinite fast undertaken by Ms. Irom Sharmila since November 2000 demanding repeal of the AFSPA, a 5-Member Committee under the Chairmanship of Justice B.P. Jeevan Reddy, former Judge of the Supreme Court was set up to advise the Government whether the Act needed to be amended, to bring its provisions in consonance with the obligations of the Government towards protection of Human Rights or to replace the Act by a more humane Act. The findings of the committee have not been placed in the public domain. The Act has however been subjected to legal scrutiny and has been upheld by a 5-judge constitutional bench of the Supreme Court. The apex court also extended the scope of powers to include the power to interrogate persons arrested and retain custody of weapons seized.

It is important to understand that the Army operates on the direction of the political authority. The onus for deploying the Army hence lies on the Centre and not on the Army. Declaring an area as ‘disturbed’ is also not an arbitrary decision by the state government, but follows from a complete breakdown of the state machinery due to the hostile activities of insurgents, militants or terrorists. The Army is thus called in as the last option and the consequences of failure could well mean the disintegration of the state. If the Army is not enabled to carry out its task, then the result could be failure with serious consequences.

A cursory glance at the violence levels existing in J&K since 1988 is instructive. In just under three decades of violence, over 22,800 terrorists have been killed, with the security forces suffering over 6150 casualties. Civilian deaths due to violence are about 14,700. That the movement has continued for so long points to the devious role played by external actors in giving support to terrorist groups. The roots go back to the policy enunciated by Z.A. Bhutto in the eighties to ‘bleed India with a thousand cuts’. The Pakistani state continues with its rabid support to terror groups such as the Lashkar-e-Taiba (LeT), Hizbul Mujahideen (HM) and the like which they view as their ‘strategic assets’. Such groups are trained, financed and equipped by Pakistan to carry out violent activities to ‘keep the pot boiling’ in J&K. Casualties suffered by such groups are made up by infiltrating the required number of terrorists across the border. While a check has been imposed on infiltration and the strength of resident terrorists has decreased substantially, the problems in the state are by no means over. Violence levels have reduced in the state but the security environment is still not conducive as the casualty figures for the five year period 2010-2014 show:

                                       

A glance at the weapons, ammunition and explosives apprehended since insurgency began in the state in the late eighties, indicates that the environment of operations for the security forces is much akin to war (See Table 1). What the Army is dealing with is state sponsored terrorism, much akin to sub conventional conflict. Let us examine one by one, the angst of activists against AFSPA. These pertain to sections 4,5 and 6 of the Act.     

                                 

Activists state that the power to kill and to search and arrest without a warrant opens up the possibility to their misuse. While the power exists in the statute, in its application there is strict control. No search or arrest is made randomly, each being done based on specific inputs. Just because such powers are available, does not mean that troops can enter any house or arrest any person at will. The fluid nature of operations in terrorist and insurgent infected areas, however, makes it essential for the armed forces to have this power, else the terrorist will get away every time. It must be remembered that the Army is deployed largely in remote areas, many of which have the most rudimentary of amenities if any. Search and Arrest warrants are for normal police time crime control and not for combatting highly organised and trained terrorist groups armed and equipped with the latest weaponry and communication devices.

The power to open fire is also judiciously used, Army troops engaged in operations rarely being the first to open fire. That is the reason why the casualty rate of officers in such operations is exceptionally high as they lead from the front and the terrorist invariably has the first opportunity to fire. Once a fire fight erupts, there could be collateral damage, as terrorists and insurgents deliberately initiate conflict in built up areas or in close proximity to the civil population. While terrorists have no compunctions in killing or injuring innocent civilians, the Indian Army remains very sensitive to such occurrences and seeks to avoid them to the extent possible. Such sensitivity is not displayed by foreign armies, as seen in the brutal handling of such operations by the Pakistan Army in Baluchistan, Khyber Pakhtunkhwa and FATA where air power and artillery has been indiscriminately used to destroy entire villages and townships, leading to heavy loss of civilian life, and millions of internally displaced persons. Even the U.S. and British forces, the pillars of Western democracy, routinely use missiles and air power to destroy what they believe to be terrorist hideouts. The hundreds of women and children killed in such engagements in Afghanistan and the Levant is conveniently put across as collateral damage. The Indian Army on the other hand has kept its operations confined to the use of weapons at the platoon level and has been very sensitive in ensuring that collateral damage either does not occur or is restricted to the bare minimum. Individuals do not flee their homes during Army actions. On the contrary, the presence of the Armed Forces in disturbed areas provides a sense of security to the public at large and not a sense of fear.

Activists also vent their ire on Section 6 of the Act, which grants legal immunity to the forces against prosecution. What is not appreciated is that it is part of the operating methodology of terrorists and insurgents to deluge the security forces with false cases to hinder their ability to operate. Statistics from the National Human Rights Commission (Table 2), clearly indicate that most complaints are motivated and designed to malign the Armed Forces. Troops across the world require legal protection against prosecution for acts done in good faith in such high intensity operations. Without immunity from future prosecution, troops will cease to operate in such areas fearing legal action. This will lead to a resurgence in insurgency, causing the people greater misery and  hardships and could over time lead to the break up of the state.

Today, countries across the globe are going in for more stringent laws in their effort to tackle the cancer of terrorism. AFSPA has to be seen in the light of current day realities and not in an isolated prism. The debate on AFSPA also needs to follow a different narrative. AFSPA can no longer be discussed in terms of the Act being  ‘good’ or ‘bad’. The central issue is whether the Act is essential. In disturbed environments, the issue often gets deflected from real causes to imaginary ones. AFSPA is not the cause of the problem. That lies in the failure of the political and administrative processes to meet the aspirations of the people. A prominent academic gave forth the view that as AFSPA has not succeeded in bringing peace to the Northeast and to J&K, it should be scrapped. That was being too clever by half. On a similar yardstick, we could well ask for the scrapping of the political and administrative machinery of the state for failing to deliver. Be that as it may, the security forces have delivered time and again on stabilising the state to permit other initiatives to flourish and take root. The onus for building peace now lies on other actors.