Armed Forces Spe­cial Pow­ers Act in J&K

The AFSPA was care­fully drafted in 1958 to equip the forces with le­gal pow­ers to re­spond swiftly and with­out en­cum­brance in counter-in­sur­gency sit­u­a­tions. The AFSPA was ex­tended to J&K in 1990, where even the CrPC is not ap­pli­ca­ble

SP's LandForces - - FRONT PAGE - Lt Gen­eral V.K. Kapoor (Retd)

The AFSPA was care­fully drafted in 1958 to equip the forces with le­gal pow­ers to re­spond swiftly and with­out en­cum­brance in counter-in­sur­gency sit­u­a­tions. The AFSPA was ex­tended to J&K in 1990, where even the CrPC is not ap­pli­ca­ble.

THE DE­BATE ON THE re­moval/ re­ten­tion of armed Forces Spe­cial Pow­ers Act (AFSPA) from cer­tain dis­tricts of Jammu and Kash­mir (J&K) has once again taken the cen­tre stage. Po­lit­i­cal par­ties in J&K have tra­di­tion­ally come to power on po­si­tions of sym­pa­thy. Both Omar Abdullah’s Na­tional Con­fer­ence and Me­hbooba Mufti’s Peo­ple’s Demo­cratic Party (PDP) have al­ways pro­jected them­selves as rep­re­sent­ing Kash­miri in­ter­ests to the Cen­tre. Both blamed an ob­du­rate Cen­tre for their fail­ure to re­move AFSPA from the state. While Omar Abdullah found him­self back­ing off from his prom­ises, pushed from re­vok­ing AFSPA al­to­gether to re­mov­ing it from a few ar­eas to not at all, the PDP, which had al­ways made the re­peal of AFSPA an ar­ti­cle of faith, found it­self meet­ing the Bharatiya Janata Party (BJP) half­way to form a state govern­ment in 2015. In the “Agenda for Al­liance” signed off by the two par­ties, it cau­tiously agreed to “ex­am­ine the need for de­no­ti­fy­ing dis­turbed ar­eas”.

What is AFSPA and Why was it En­acted

AFSPA was en­acted in 1958 to bring un­der con­trol what the Govern­ment of In­dia con­sid­ered dis­turbed ar­eas. It was first im­ple­mented in Ma­nipur and As­sam in 1958, fol­low­ing the Naga move­ment. The Cen­tral Govern­ment em­pow­ered the Gov­er­nors of the states and ad­min­is­tra­tors of union ter­ri­to­ries to take a call whether the ar­eas of that par­tic­u­lar state or union ter­ri­tory is dis­turbed or not.

The armed forces were meant to fight ex­ter­nal ag­gres­sion. In­ter­nal em­ploy­ment was meant to be only in ex­cep­tional cir­cum­stances. Thus, they were not equipped with any pow­ers — like the po­lice forces are — for in­ter­nal sit­u­a­tions. The AFSPA was care­fully drafted in 1958 to equip the forces with le­gal pow­ers to re­spond swiftly and with­out en­cum­brance in counter-in­sur­gency sit­u­a­tions. The AFSPA was ex­tended to J&K in 1990, where even the CrPC is not ap­pli­ca­ble. J&K has the Ran­bir Pe­nal Code wherein, un­pro­tected by an al­ter­na­tive leg­is­la­tion, Army per­son­nel could be ar­rested for vir­tu­ally any per­ceived ex­cesses. Sol­diers would be lit­er­ally forced to con­fine them­selves to the bar­racks!

In the case of AFSPA (Ma­nipur and As­sam) 1958, the Govern­ment of In­dia used Ar­ti­cle 355 of the Con­sti­tu­tion to con­fer power in the hands of Gov­er­nors. “Keep­ing in view the duty of the Union un­der Ar­ti­cle 355 of the Con­sti­tu­tion, in­ter alia, to pro­tect ev­ery State against in­ter­nal dis­tur­bance, it is con­sid­ered de­sir­able that the Cen­tral Govern­ment should also have power to de­clare ar­eas as ‘dis­turbed’, to en­able its armed forces to ex­er­cise the spe­cial pow­ers”. Later the Armed Forces (As­sam and Ma­nipur) Spe­cial Pow­ers Act, 1958 were sub­sti­tuted by the Armed Forces (Spe­cial Pow­ers) Act, 1958, get­ting the acro­nym of AFSPA, 1958.

Jammu and Kash­mir Dis­turbed Ar­eas Act

The Jammu and Kash­mir Dis­turbed Ar­eas Act, which ex­tended le­gal im­mu­ni­ties to the state po­lice in no­ti­fied ar­eas, had lapsed in 1998. And the last time the J&K Govern­ment had no­ti­fied dis­turbed ar­eas un­der AFSPA was 2005, which meant a six-month re­view was long over­due. But the le­gal­i­ties are blurred in prac­tice any­way. For in­stance, the J&K AFSPA stip­u­lates that the power to de­clare ar­eas dis­turbed lies with the Cen­tre or the State Gov­er­nor. But of­fi­cials in the Union Home Min­istry claim the Cen­tre had only no­ti­fied a few ar­eas and the state govern­ment had spread the scope of the law across J&K. So it was in the state ad­min­is­tra­tion’s power to with­draw it from these dis­tricts, they said.

Win­ning Hearts and Minds

The quib­bling over le­gal­i­ties and the blame games cover up for a wor­ry­ing dis­place­ment. In spite of the govern­ment’s protes­ta­tions, armed forces are no longer used merely in aid of civil power. In many ar­eas of J&K, the army has be­come the face of the state.

Sadb­ha­vana pro­ject of the Army has taken on eco­nomic and de­vel­op­men­tal roles that should have been re­served for gov­ern­ments, lay­ing roads, start­ing schools, dol­ing out schol­ar­ships, pro­vid­ing em­ploy­ment and skills train­ing. Many of these schemes were aimed at “win­ning hearts and minds”, mak­ing the Army more peo­ple friendly. Even se­nior Gen­er­als have protested, how­ever, that the task of reach­ing out to hos­tile groups and dis­af­fected sec­tions of the pop­u­la­tion lies with politi­cians. Yet it is com­mon knowl­edge that the GOC Corps in Sri­na­gar is in touch with the civil­ian govern­ment and its min­is­ters. This be­comes more pro­nounced be­cause the home-grown mil­i­tants are of­ten known to the po­lit­i­cal hi­er­ar­chies of all po­lit­i­cal par­ties and the po­lit­i­cal lead­ers with their lo­cal con­tacts are some of the best sources of in­for­ma­tion.

Over the years, the civil­ian lead­er­ship has ceded space to men in uni­form and slowly lost le­git­i­macy in Kash­mir. It is a tall or­der, then, to ex­pect this lead­er­ship to cut down on pow­ers and im­mu­ni­ties granted to the armed forces. More­over the mil­i­tancy graph has waxed and waned over the years and at no time has the po­lit­i­cal lead­er­ship ex­pressed its de­sire to take over the reins of the govern­ment com­pletely and send the Army back to the bar­racks. The truth is that in the cur­rent sit­u­a­tion nor­mal gov­er­nance is not fea­si­ble and the po­lit­i­cal par­ties are aware of this fact even though from time to time they do make me­dia state­ments re­gard­ing the re­moval of AFSPA. How­ever to ac­quire a proper un­der­stand­ing of the AFSPA, one needs to study the cir­cum­stances pre­vail­ing in J&K and the need for the Act. The AFSPA can be re­voked by the Gov­er­nor of J&K or by the Cen­tral Govern­ment at the rec­om­men­da­tion of the J&K cabi­net. For this to oc­cur the Chief Min­is­ter has to win the con­fi­dence of her en­tire cabi­net.

Po­lice and the Army

They are si­mul­ta­ne­ously en­gaged in sim­i­lar or re­lated roles. If you compare the pow­ers of the po­lice un­der the CrPC vis-à-vis the Army un­der the AFSPA, it’s ev­i­dent the po­lice en­joys more en­com­pass­ing pow­ers re­lat­ing to ar­rest, search, sum­mon­ing of wit­nesses, and pre­ven­tive de­ten­tion. Sim­i­larly the Cen­tral Po­lice Forces func­tion un­der the State Di­rec­tor Gen­eral of Po­lice and have the same pow­ers and pro­tec­tion as the State Po­lice whereas the Army is in “Aid to Civil Au­thor­i­ties”, in­clud­ing ri­ots and ag­i­ta­tion. They can only act on the writ­ten or­ders of a civil mag­is­trate. In fact, this il­lus­trates the dif­fi­culty in anti-ter­ror­ist op­er­a­tions. Can you imag­ine

sol­diers wait­ing for the mag­is­trate’s writ­ten per­mis­sion to open fire while ter­ror­ists strike and dis­ap­pear?

Ma­jor Gen­eral G.D. Bak­shi (Retd) writes in an ar­ti­cle in the Times of In­dia on Novem­ber 18, 2011: “The scale of mil­i­tari­sa­tion of the cur­rent in­ter­nal con­flicts is not gen­er­ally un­der­stood. In J&K alone, the In­dian Army has since 1990 re­cov­ered over 80,000 AK se­ries ri­fles; over 1,300 ma­chine guns; over 2,000 rocket launch­ers; some 63,000 hand grenades and 7 mil­lion rounds of am­mu­ni­tion.”

Im­pact of With­draw­ing the AFSPA

The sit­u­a­tions in J&K or the North East are in no way a con­se­quence of the AFSPA, which is merely an in­stru­ment that helps the Army keep a lid on con­flicts born from so­cio-po­lit­i­cal and eco­nomic causes. The with­drawal of the Act from Ma­nipur saw the re­turn of ter­ror­ists, and the state has be­come vir­tu­ally un­govern­able. With­drawal of the AFSPA from J&K, as is be­ing de­manded from time to time, will bring all mil­i­tary op­er­a­tions to a dead halt and any hurry on our part to dis­man­tle the ap­pa­ra­tus which has brought near nor­malcy to the state is fraught with dan­ger. More­over if it is with­drawn from cer­tain ar­eas of J&K, those ar­eas will be­come the strong­hold of the ter­ror­ists be­cause the Army will not be able to op­er­ate with­out the pro­tec­tion en­abled by the AFSPA. Some se­nior po­lit­i­cal lead­ers have con­tended that the Army does not op­er­ate in Sri­na­gar but this is incorrect. Each morn­ing the Army and a few com­pa­nies of the Cen­tral Re­serve Po­lice Force (CRPF) sani­tise the strate­gic roads through the city for the lo­gis­tic con­voys of the Army to move to Kargil and Ladakh for the crit­i­cal winter-stock­ing tasks. The road and an area of nearly 3 sq km on ei­ther side has to be sani­tised. The air­field in Sri­na­gar has to be sani­tised to en­sure that no sur­faceto-air mis­siles (SAMs) or re­motely-pro­pelled grenades (RPGs) are fired at the air­craft.

Sri­na­gar is the hub of all po­lit­i­cal ac­tiv­ity in J&K and cru­cial in­tel­li­gence, even about line of con­trol (LoC) cross­ings, is gath­ered in these ur­ban cen­tres. Pre­ma­ture re­moval of the act from these ar­eas would be highly coun­ter­pro­duc­tive. Once re­moved, AFSPA can­not, in prac­tice, be reim­posed in a hurry.

The AFSPA is en­forced only in ex­cep­tional cir­cum­stances. So the only oc­ca­sion to mod­ify, di­lute or with­draw the Army’s pow­ers can be when you agree that such cir­cum­stances have ceased to ex­ist. Wholly or par­tially with­draw­ing AFSPA is rightly a po­lit­i­cal call, but the con­se­quences must be un­der­stood. Like in Ma­nipur, such ar­eas would turn into ter­ror­ist havens and politi­cians, so vo­cif­er­ously call­ing for with­draw­ing the act, would find them­selves to­tally im­po­tent!

State-spon­sored Proxy War by the Neigh­bour

Many ar­gue that de­spite the act be­ing in force for years the sit­u­a­tion re­mains un­changed. To that the Army rightly points out that in J&K, the ji­hadi ter­ror camps are lo­cated in the neigh­bour­hood and a state-spon­sored proxy war is be­ing waged by our neigh­bour. The en­tire ter­ror in­fra­struc­ture is in­tact and this fact drove For­eign Sec­re­tary S. Jais­hankar to say on Fe­bru­ary 14, 2017, that Pak­istan needs to shut down “ter­ror­ism fac­tory” and there is now in­ter­na­tional con­cern about it.

The mil­i­tary can at best pre­vent the sit­u­a­tion from get­ting out of con­trol but has no pow­ers to de­stroy the ter­ror camps deep in­side un­less the na­tion de­cides to strike well beyond the bor­ders and is pre­pared to go to war. Sur­gi­cal strikes in Septem­ber 2016 jolted Pak­istan and their Army as it showed the change strat­egy on part of In­dia. How­ever, nei­ther coun­try wants a war at this time and hence even sur­gi­cal strikes just across the LoC can have limited gains at best. If on the other hand the sit­u­a­tion in Jammu and Kash­mir is seen as an in­ter­nal con­flict then in any case mil­i­tary in­ter­ven­tion can never be the so­lu­tion to in­ter­nal con­flicts. Im­po­si­tion of the AFSPA can only be a means to achiev­ing a mea­sure of sta­bil­ity af­ter which the po­lit­i­cal lead­er­ship needs to get its act to­gether. But sadly, op­por­tu­ni­ties have re­peat­edly been squan­dered. J&K and the North East are essen­tially po­lit­i­cal and bu­reau­cratic fail­ures — the gen­tle­men who sit be­hind desks in pro­tected rooms are the ones to blame. Un­for­tu­nately, they have all be­come con­ve­niently ac­cus­tomed to gov­ern through mil­i­tary force.

Sanc­tions to Pros­e­cute Army Per­son­nel in Hu­man Rights Vi­o­la­tions

In J&K, bar­ring a few, the ma­jor­ity of the com­plaints have been duly dealt with. More­over, in a large num­ber of in­stances the com­plaints were proved to be false and fab­ri­cated. The Army is ob­vi­ously not very good at man­ag­ing pub­lic per­cep­tion. But the one thing they can be proud of is that in the Army never al­lows a rogue to ex­ist amongst their ranks, and act ruth­lessly the mo­ment one is no­ticed. How­ever, one can­not deny that some cases may have gone un­no­ticed or un­proven. The Army will need to be even more vig­i­lant in this re­gard.

Im­pact of Di­lu­tion or Re­moval of AFSPA

The Army is of the opin­ion that they have to act when­ever or­dered. But what this will lead to is ren­der­ing it as in­ef­fec­tive or in­ef­fi­cient as po­lice forces. It is a choice the politi­cians must make be­cause no sol­dier in his right senses would be will­ing to take the nec­es­sary risks un­less he was pro­tected. Af­ter all, these men are called upon to en­gage highly mo­ti­vated, bat­tle-hard­ened ter­ror­ists.

Amend­ments to the Act

The Jus­tice Ji­van Reddy Com­mis­sion has gone into pre­cisely this, and has made its rec­om­men­da­tions. The re­port was sub­mit­ted to the govern­ment in June 2005. But our feel­ing is that this leg­is­la­tion has stood the test of time. We must un­der­stand that things are much worse now than when AFSPA was leg­is­lated. Di­lu­tion is not rec­om­mended, if any­thing, the act must be re­vis­ited to see how it can be strength­ened to meet emerg­ing chal­lenges, per­haps also in­clud­ing means to deal with the rogues. The Army would be only too happy to be kept aloof from these op­er­a­tions which they call “dirty op­er­a­tions”. It is a fact that most state po­lice forces have been lit­er­ally emas­cu­lated by politi­cians, and the na­tion has no other op­tion but to fall back on us­ing the only apo­lit­i­cal force there is.

Con­clu­sion

In­dia has al­ready ex­pe­ri­enced the era of the early 1990s when the Sovi­ets had just left Afghanistan, and a large num­ber of trained and un­em­ployed ter­ror­ists were di­verted to J&K. There is no gain-say­ing that it won’t hap­pen this time due to with­drawal of US /NATO forces from Afghanistan. Con­stant vigil is the need of the hour.

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