Old Wine in a New Casket: AFSPA in J&K through the realm of Law.

 By Arpan Chakravarty
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Introduction:

The state is a fragile organisation, and the statesman does not have the moral right to risk its survival on ethical restraint”-Henry Kissinger, World Order.

Each war starts with a propaganda, which usually ends up being the battle for hearts, minds and cyber space. There seems no realization that violent movements begin with the combination of economic, cultural, social fault lines and unless a root causes are dealt with, there can be no solution to such movements. This belies the fact that in each and every case, militancy starts as an indigenous movement and then gets abetted by hostile countries, in our case whether China or Pakistan. Thus, only when a nation develops or combines a coordinated strategy, involving good administration, economic and social upliftment, combined with military forces when required, are likely to have a stable internal security environment[1]. While Mizoram and Punjab, are back in mainstream, the problem still continues in Jammu and Kashmir with it becoming a problem pertaining to the territorial integrity of India.

The troubled state of Jammu and Kashmir has been a major national security issue for India through decades as it has erupted as a volatile region due to unprecedented amount of insurgency and proxy wars wagged by the neighboring countries to create unrest in the region. The Indian Army has the largest presence in terms of operation as it has excelled in the most difficult operational conditions in many wars and conflicts but as the global security challenges keep evolving, so does the Indian Army, various changes have been ushered in the security environment modifying the nature of war. Thus, there is a need for the fourth largest army in the world to take a harder look at the changing scenarios of national security and the means to maintain peace through its unenviable reputation for professionalism, discipline and dedication to duty[2].

Why AFSPA was needed by the Army?

  • To handle and combat insurgency.
  • To protect the borders of the country.
  • In times of Insurgency, security forces cannot operate without a free hand or else getting permission in bureaucratic system would lead to frustration of operation, when a tip or intelligence is received, which ma y in turn used as an advantage by the insurgents.
  • Legal protection to boost the morale of the forces working in highly uncertain and complex situation, in order to maintain the operational efficiency of and protect the rights of the soldiers.[3]

International Humanitarian Law:

The four Geneva Conventions of 1949 along with the three additional protocols constitute the principles of International Humanitarian Law (IHL) principles. These principles have been accepted and been part of our Indian Constitution as India, being a dualist state. The principles are mentioned in as part of our Fundamental Right (Part III), Directive Principles (Part IV) and Fundamental Duties (Part IVA) which does ensure the human rights garnered under the IHL. Furthermore, Article 253 of the Indian Constitution has empowered to give effect to the treaties and conventions to which India is a signatory.

One of the most significant note being that India is not a signatory to Additional Protocol II, which provides fundamental guarantee to the forces deployed in non-international armed conflict, as India does not recognizes that problem of Kashmir, is a matter of internal concern[4]. There has been a rising concern about the militants or non-state actors, who have been active in fighting against the Indian army ranging from stone pelting to usage of women and children as a shield when confronted by the armed forces. The Indian Armed Forces, while engaging with the terrorists, in such conflicts have maintained the principle of ‘minimum force’ and avoidance of collateral damage. Cordon and search operation are conducted according to the guidance and supervision of a set guidelines by the Commanding Officers alongside a District Magistrate on the scene.

Since AFSPA covers the ‘internal disturbances’[5] as the state is in dangerous situation as the law established is being affected and adversely affecting the different sections of the society which is becoming a threat to the sovereignty and territorial integrity of the country. The military bureaucracy is of the view that AFSPA is a necessary means to conduct operations and combat insurgency in the country to protect the borders.  The concept of ‘Internal disturbances’ are usually not been covered by under IHL principles, thus, by contention of the scholars across the world, the conflict in Jammu and Kashmir cannot be confirmed as a non-international armed conflict (NIAC). However, a ‘proxy war’ which has become one of the most important ways of warfare wherein there is an interference by an external forces, which also includes training assistance, providing arms and ammunition to the militants, complicating the issues. It ‘internationalises’ the internal conflict, giving it the nature of the category “Internationalised Non-International Armed Conflict” (INIAC)[6], which has been not been applicable in law but seen in conflicts around the world to name a few as Afghanistan, Kampuchea and Lebanon[7]. INIAC involves state actor interference in an NIAC. In India’s case, it has been a Pakistan, which has waged a proxy war against India through its non-state actors.

IHL and the Customary law entails the usage of the principle of distinction between civilian objects and combatants; moreover, the principle of military necessity[8], which originated from the principle of “Kreigrason” which means necessity knows no law, can be coupled with the distinction principle for the greater good and security of the sovereign from any internal or external factions.

Conclusion:

The main essence of AFSPA being brought into the realm of legal analysis is the nature of the act which gives the state powers to compromise on the human rights aspect for defending the democratic society. The traditional role of the armed forces has been to provide security against the external threats; however, they are called upon to the aid of civil power and help administer the areas under threats[9]. The nature of challenge in J&K is characterized as a proxy war and not merely just an insurgency. Therefore, since the Security forces are practically facing an external adversary rather than an internal one, there need to be an appropriate legal mechanism to deal with the contours and challenges that the armed forces are facing due to which AFSPA has been given for the “Management of Internal Conflicts”. The whole purpose of AFSPA coming into place is because of the conducive threats to terrorism which showcases absence of rule making and implementation by the civil authorities functioning.

Providing security and public order by the fair and just enforcement of extant laws and the maintenance of supplies and services essential to the public is an essential task of the civil administration, which is a combination of bureaucrats, elected representatives and integral police forces. Calling the army for the purpose of natural disasters[10], for providing hospitals, schools, road repairs, regularly organizing health camps, distributing the regular essential supplies[11], showcases the gaps in civil administration and need for a reformation sooner.

References:

[1] Dr. U C Jha, Armed Forces Special Powers Act : A Draconian Law?, ISBN: 978-93-84464-60-8, New Delhi.

[2] Vijay Oberoi, Army 2020: Shape, Size and General Doctrines of Emerging Challenges, ISBN 81-8792, Knowledge World Publishers, 2005.

[3] Swami Praveen, The Army and Special Powers, Frontline, Volume 21 – Issue 18, 28th August, 2004.

[4] Burra Srinivas, India and the Additional Protocols of 1977, India Journal of International Law, Vol 53, No 3, July-Sept 2013, p. 422-450.

[5] Sec 3, AFSPA(Armed Forces Special Powers Act, 1990), declares that it is in the opinion of the state administration when the situation is in such disturbed and dangerous conditions, the administrative head of the district has to give it in writing to the Governor who is the representative of the Central Government to aid the civil power, only then AFSPA can be implemented in any area.

[6] Ali Ahmed, “Reconciling AFSPA with the Legal Spheres”, Journal of Defense Studies, Vol 5, No 2, April 2011.

[7] Gasser, Han-Peter, ‘International Humanitarian Law”, in L. Maybee and B. Chakka (eds.), International Humanitarian Law: A reader for South Asia, New Delhi: ICRC, 2008, p.1.

[8] Klass v. Germany,ECHR App no 5029/71, 6th Sept, 1978 stated that any steps being taken resulting from a contested legislation as being necessary for the democratic society in the interest of national security and for the prevention of disorder or crime, shall be justified.

[9] The Union Government has a duty towards its citizen, the responsibility expressly imposed on it to protect every state against the external aggression and internal disturbances under the Article 355 of the Indian Constitution. In substance, the duty is to maintain the unity and integrity of India. Thus, AFSPA is the usage of armed forces in discharge of this responsibility.

[10]Abhimanyu Kulkarni, Kashmir Floods: Come ‘hell’ or come rain, army won’t stop until the last man is rescued ( https://www.hindustantimes.com/india/kashmir-floods-come-hell-or-rain-army-won-t-stop-until-last-man-is-rescued/story-WwQM3exRCSR8HE6vfVMW7K.html) Last accessed on 11/06/2019, 12: 59 PM.

[11] Arpita Anant, Transformation of Conflict: An analysis of “Op Sadbhavana” in Jammu ad Kashmir, link: (https://idsa.in/event/TransformationofConflictAnAnalysisofOpSadbhavanainJammuandKashmir_aanant)