“The proposed amendments to the Armed Forces Special Powers Act (AFSPA) will greatly reduce the effectiveness in counter-insurgency and counter-terrorism operations. If battalion, company and platoon commanders of units engaged, who have been fearlessly leading from the front in such operations, start becoming apprehensive about being legally proceeded against for killing terrorists, mostly externally instigated, then we will lose the valuable cutting edge.” This, in a nutshell, is what emerged from my interaction with a number of serving officers currently engaged in these operations and retired officers with long-standing experience of the same.
In the light of the recent downslide of security and peace in Jammu and Kashmir after many allegations of unprovoked firing by the Central Reserve Police Force (CRPF) at highly motivated mobs, including children, indulging in stone-pelting and attacking police posts, chief minister Omar Abdullah, after initially condemning security forces, made some very significant statements. In an interview published in this daily on June 30, he said: “The perception of the average resident of J&K is that the AFSPA is abused while there is a sense that it is indispensable for the security forces. The need is to address both views.” Reportedly, Mr Abdullah also categorically stated that with anti-national elements and those with vested interests exploiting the situation in the Valley, the security forces cannot be constantly expected to show restraint in view of all the stone-pelting. While the Centre and Mr Abdullah have stressed on restraint by the security forces, they also appealed to parents to keep their children indoors during curfew.
Excerpts of a June 29 editorial in a leading J&K daily, titled “Army Chief opposes repeal or dilution of AFSPA,” is relevant: “Gen. Singh does not seem to be wrong when he blamed politicians for demanding repeal or amendment to the act for their narrow political gains. The PDP has been trying to extend its areas of influence in Jammu and Kashmir, especially in the Muslim-dominated Valley, by demanding withdrawal of troops and the AFSPA… One thing is certain that the Congress-led UPA government cannot sideline the Army authorities while taking a decision on the controversial issue. The Army authorities have to be taken into confidence and their nod was necessary for amending or withdrawing the AFSPA. If the government gives weightage only to Omar Abdullah or Mufti Mohammed Sayeed, it could invite problems for it because there are fears that in the absence of any legal protection the security forces may be forced to be on the defensive which could leave a free space for militants to operate. In recent days, some youths killed in police firing and teargassing raises one question. Would these killings have been avoided if the AFSPA was not in force in Kashmir? Were not protesting youths killed between 1988 and 1989, when militancy raised its head in Kashmir, in police firing and when AFSPA was not in force? Yes, many youths were killed in police firing prior to the enforcement of AFSPA.”
The AFSPA, 1958 was enacted by Parliament on September 11, 1958, to provide necessary powers and legal support/protection to the armed forces for operations against insurgents in a highly hostile environment and it has enabled them to effectively contain insurgency and establish stability in the region. AFSPA, 1958, is currently applicable in Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Tirap and Changlang districts of Arunachal Pradesh. Subsequently, Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, effective since July 5, 1990, initially to areas falling within 20 km of the Line of Control with Rajouri, Poonch, Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar districts declared as disturbed. In August 2001, it was extended to Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda, when these districts were declared disturbed.
(1) The essence of the important sections of AFSPA is:
(a) Section 3 empowers the Central and state governments to declare areas as disturbed.
(b) Section 4 gives the Army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ammunition dumps, fortifications/shelters/hideouts and to stop, search and seize any vehicles.
(c) Section 6 stipulates that arrested persons and seized property is to be made over to the police with least possible delay.
(d) Section 7 offers protection of personnel acting in good faith in their official capacity.
Prosecution is permitted only after sanction of the Central government. This section of the AFSPA is very similar to the Criminal Procedure Code’s (CrPC) Section 45, which disallows arrest of public servants and Section 197 provides impunity against prosecution. While the Supreme Court has mandated a government sanction prior to initiating prosecution against police personnel for excesses or killings committed during the maintenance of law and order, the applicability of Section 45 of the CrPC is not allowed in J&K, where the Ranbir Penal Code is applicable and ipso facto the personnel of the armed forces can be arrested for any perceived excesses.
Following Naga People’s Movement of Human Rights vs Union of India, decided on November 27, 1997, the Supreme Court extended the scope of powers vested vide 4 and 6 of AFSPA, to include by implication, the power to interrogate the person arrested and for the armed forces to retain the weapons seized during the operations in their own custody rather than to hand them over to police authorities.
However, close perusal of the various powers available to the police under the provisions of the CrPC vis-à-vis those available to the armed forces under AFSPA would reveal that the police still enjoys more encompassing and wider powers relating to arrest, search, seizure, summoning of witnesses, preventive detention etc than the armed forces.
Adequate checks and safeguards are built in AFSPA to prevent the armed forces from assuming sweeping powers. Violations of its provisions are liable for legal action/prosecution. The do’s and don’ts issued by the Army, duly approved by the Supreme Court, are binding on all ranks. What needs to be clearly understood is that while internal security is not the Army’s job, whenever a state government requests for its deployment owing to the police not being able to handle the situation and even when the AFSPA is promulgated, the governance of the state yet remains in the hands of civil administration and not taken over by the armed forces, as is wrongly perceived by many. From the bare reading of the act, it appears that the security forces enjoy vast powers, yet, the power to investigate offences remains reserved with the police alone.
The incidents in Dooru and Trehgam in 2009 and the recent incident of alleged killing of three civilians of Nadihal, Rafiabad in Macchil sector by the Army personnel, the Army willingly opened itself to scrutiny meaningfully and with transparency by removing a commanding officer and suspending a company commander.
Since 1990, out of 38 cases where J&K home departments sought sanction from the Central government for prosecution of the Army personnel under AFSPA, 36 have been investigated and two are still in process. No prosecution sanction has been accorded by the Central government so far. Out of 36 cases investigated, sanction was not accorded in 14. Two were settled and one case was referred back to the J&K government. The remaining 19 are currently under process at the Army HQ/defence ministry. Out of 1,511 FIRs concerning human rights allegations filed against the Army in the last 20 years, 1,508 have been investigated, three are under investigation. About 1,473 cases, amounting to 97 per cent, were found to be baseless and 35, amounting to 2.32 per cent, were found true. Out of 104 personnel punished, 39 are officers, 9 are Junior Commissioned Officers and 56 are other ranks.
In the light of all these factors and all that is happening in the Naxal-affected states, where AFSPA may have to be promulgated in the future, the Centre should maintain status quo and deny any more space to anti-national elements than have already been grabbed.
Col Anil Bhat (Retd) is a defence and security analyst based in New Delhi
Courtsey: The Asian Age, 7 July 2010
(Disclaimer: The views expressed in this article are those of the author and do not represent the views either of the Editorial Committee or the Centre for Land Warfare Studies).