Military & Aerospace

AFSPA - A Recommended Solution
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Issue Courtesy: Aakrosh | Date : 20 Feb , 2012

Hereafter, it would be useful to analyse some additional provisions of the UAPA, which undoubtedly reinforce the fight against terrorism and simultaneously strengthen human rights provisions.

The UAPA undertakes to provide powers for “dealing with activities directed against the integrity and sovereignty of India.”44 It defines a “terrorist act” in Section 15 by highlighting the threat to the “unity, integrity, security or sovereignty of India” or an “intent to strike terror in the people or any section of the people in India or in any foreign country” using a variety of terror devices.45 The causes of this threat have also been outlined.46 The act further specifies “terrorist” organisations and groups.47 This enables strict punishment, “which may extend to imprisonment for life.”48

A fundamental and often-overlooked aspect of protection of witnesses has also been incorporated in the act, thereby providing security to those willing to cooperate in the counterterror initiatives as also widen the network of the eyes and ears of government agencies.

Section 1 of the act indicates an all-India jurisdiction, which at the very outset removes the accusations of victimisation that have been levelled against the AFSPA in view of its selective enforcement in areas of the Northeast and J&K. In the long run, it also obviates the problem of duality of application of laws by implementing a single law.49

The UAPA not only facilitates operations by the armed forces, it brings a unifying law for security forces. It also enlarges the canvas of jurisdiction by addressing unlawful associations, 50 terrorist organisations, 51 terrorists52 and forfeiture of proceeds of terrorism.53 While dealing with these, the vital aspect of fund flow for terrorist activities is also addressed.

By establishing the jurisdiction of a tribunal, the UAPA, gives an opportunity to the accused to represent against his or her being declared “unlawful.” This provides the much-needed safety valve to the system.54

A fundamental and often-overlooked aspect of protection of witnesses has also been incorporated in the act, thereby providing security to those willing to cooperate in the counterterror initiatives as also widen the network of the eyes and ears of government agencies.55

The admissibility of electronic evidence has been introduced through Section 45 of the UAPA. It allows the admissibility of “interception of wire, electronic or oral communication” irrespective of other acts, including the Indian Evidence Act, 1872; the Telegraph Act, 1885; or the Information Technology Act, 2000.56

…powers to make a pre-emptive arrest without a warrant have been given vide Section 151 and Section 41. However, given the reality of application of this law, the nature of limitations constrains the task of undertaking counterterrorist operations.

There have been recommendations for the application of the Ranbir Penal Code (RPC) instead of the Criminal Penal Code (CrPC) as it is not applicable to J&K. This would be done after necessary amendments to give protection to the army, as is the case with the CrPC.57 The CrPC gives protection to forces under Sections 45 and 197-A, though the same sections are not available in the RPC. Section 45 states that “no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining consent of the Central Government.”58 Section 197-B(2) further reinforces this provision. Similarly, powers to make a pre-emptive arrest without a warrant have been given vide Section 151 and Section 41. However, given the reality of application of this law, the nature of limitations constrains the task of undertaking counterterrorist operations.

Therefore, it needs to be noted that the CrPC is a law essentially for dealing with criminal activities. It was neither planned nor applied with the primary aim of neutralising terrorism-related acts. It is because of this that it falls short on the following aspects:

  • It does not include major antiterrorism initiatives undertaken by the UN for neutralising the threat.
  • Its procedures are essentially tailored for action by the police and not the armed forces.59 Therefore, while the CrPC would be adequate if existing policing capability could tackle the threat, a worsening situation does require specially tailored laws.
  • Issues that are critical subsidiary components supporting terrorism, including money laundering, funding, supporting, organising and participating in terror activities, are more explicitly and thoroughly covered by the UAPA.
  • The UAPA has been amended as late as in 2008, which makes it most relevant to present and emerging terror threats.

Recommendation

One of the solutions to the application of the AFSPA was put forth by the Justice Jeevan Reddy Committee when it recommended the repeal of the AFSPA as applicable to Northeast India and promulgation of the Unlawful Activities (Prevention) Act 1967, as amended in 2004, along with additional insertions suggested by the committee.

The issue of false complaints and charges has been the strategy of overground workers and terror ideologues to push security forces on the defensive. Strict measures and actions should be taken for any such attempts…

Based on the assessment of the AFSPA and the UAPA in conjunction with additional insertions, the following options are available for implementation in J&K:

  • Status quo is maintained, and the AFSPA is retained in its present form throughout the state.
  • The AFSPA is removed without any additional antiterror law being implemented.
  • The RPC is amended to include provisions of the CrPC in the four districts under discussion.
  • The AFSPA is removed, and the UAPA 2008 is implemented along with Jeevan Reddy Committee suggestions for insertions throughout J&K, though with changes as suggested in succeeding paragraphs (hereafter termed the amended UAPA 2008).
  • Same as the above, though implementation is done initially in four districts only by revoking their disturbed area status even as the AFSPA continues to remain effective in other parts of the state.

It is understandable that revoking the disturbed area status of certain areas cannot be a knee-jerk reaction. However, it is also felt that there is a need for bold strategic decisions to take the peace dividend to the next level through partial disabling of the AFSPA by removing some areas from the disturbed area status and imposing the amended UAPA 2008.60 In order to justify this argument, a comparative analysis of the two acts has been done in the paper. The analysis clearly makes a case for change. It is noteworthy that a number of provisions were added to the UAPA in 2008, in the immediate aftermath of the Mumbai 26/11 strike, to give additional powers to security forces, which makes the UAPA a potent antiterror law. Besides domestic concerns, UN resolutions and terrorism-related initiatives have also been incorporated through amendments.61 This, therefore, makes the law current and relevant to prevailing international concerns as well.

The life cycle of various violent movements in the country suggests that the periodic review for six months after the implementation of the UAPA may be inadequate and should preferably be increased to one year.

The following is suggested:

  • The shift to the amended UAPA 2008 could be considered either immediately prior to the onset of summers or after it in 2012, based on the prevalent security situation at that time.
  • The UAPA gives substantive powers to security forces functioning under its ambit. This needs to be balanced by preinduction training and long-term education regarding dos and don’ts to ensure respect for human rights and pursuit of best practices related to counter-insurgency/counterterrorism operations. Similarly, the education of human rights activists about operational ground realities is needed to bridge the gap between perception and reality.
  • The status of terror activity in the country must balance the need for application of the law. There is a need to revisit the amended UAPA 2008 provisions both in terms of existing limitations and possible misuse. A joint parliamentary committee must review the law every three years and make an endeavour to include views of people from affected areas, state administration, human rights groups and security forces.
  • The feedback mechanism catering to complaints must become more responsive and effective if credibility of the system has to be maintained. Periodic feedback to complainants must be ensured, including interim replies.
  • The issue of false complaints and charges has been the strategy of overground workers and terror ideologues to push security forces on the defensive. Strict measures and actions should be taken for any such attempts, thereby making it easier to differentiate between the genuinely aggrieved and agents of destabilising forces. A provision for penal action against the filing of false cases should be incorporated to dissuade the guilty.
There has also been a debate recommending the grant of these powers to JCOs to bring in greater responsibility. This aspect can be debated prior to implementation.

The following changes to Justice Jeevan Reddy Committee’s recommended insertions are suggested:

  • Immediate handover of arrested suspects is ideal; however, delay due to their capture and arrest in areas far from police stations in jungles, mountainous areas and high altitude must be taken into account and added to the necessary journey period. This is also in keeping with Clause 2, Article 22, of the Constitution of India.62
  • A number of provisions have been added to Reddy recommendations for insertion, including opening of fire after due warning, drawing of attention with a bugle and the presence of a magistrate.63 These are applicable during aid to civil authorities in order to quell a disturbance or a violent crowd. However, the possibility of the same during high-intensity military operations is impractical—more so in areas along the LoC.
  • Similarly, the possibility of “commanders of units” issuing “personal orders before opening fire” is impractical since most operations are led by NCOs and must have delegated powers to take proactive and reactive measures.64 This can, however, be followed if the commanders of units implies sub unit commanders, including NCOs. There has also been a debate recommending the grant of these powers to JCOs to bring in greater responsibility. This aspect can be debated prior to implementation.
  • The recommendation regarding the establishment of district-level grievance cells also needs reconsideration. While the sentiment behind it is understandable, its practical application could lead to a serious impact on the conduct of operations. In the past, a number of cases of false charges have been reported, both in the Northeast and J&K.65 Filing of frivolous charges has the negative potential of embroiling security forces in motivated enquiries and demoralising them according to a planned strategy of the adversary. On the other hand, even if prima facie guilt is found, can the recommendations have a binding impact? In the absence of the same, its usefulness remains limited.
  • The life cycle of various violent movements in the country suggests that the periodic review for six months after the implementation of the UAPA may be inadequate and should preferably be increased to one year.
It is, therefore, the bounden duty of the government at all levels and its agencies to ensure that any law that provides guidelines for the implementation of a people-centric mandate does not become more powerful than the people it is meant to serve.

Conclusion

The paper gives one amongst a number of solutions possible for meeting the security demands of the army as well as addressing popular sentiments. It is hoped that this additional option can be debated to enable a solution.

However, it needs to be understood that laws are mere frameworks. Ultimately, it is the acceptance, implementation and monitoring of the same that will allow the laws to work both in letter and spirit. It is, therefore, the bounden duty of the government at all levels and its agencies to ensure that any law that provides guidelines for the implementation of a people-centric mandate does not become more powerful than the people it is meant to serve. It is also imperative for an iterative process to keep it ready and relevant with changing times and circumstances.

Notes and References

  1. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, No 21 of 1990. Gazette of India, Extraordinary Part II, Section 1, 11 September 2011. The Ministry of Law and Justice. New Delhi.<http://mha.nic.in/pdfs/Armed%20forces%20_J&K_%20Spl.%20powers%20act,%201990.pdf>.
  2. India Today. “AFSPA Has to Be Withdrawn from Some Areas of J&K: Omar Tells Army.” 9 November 2011. <http://indiatoday.intoday.in/story/afspa-omar-abdullah-indian-army-jammu-and-kashmir/1/159335.html>.
  3. Vinay Kumar. “Omar Places AFSPA Before Delhi Durbar.” Hindu, 14 November 2011. <http://www.thehindu.com/news/national/article2626585.ece>.
  4. Supreme Court of India. “Naga People’s Movement of Human Rights etc vs. Union of India.” 27 November 1997. <http://judis.nic.in/supremecourt/imgs.aspx>.
  5. Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958. 6 June 2005. pp. 74–75. <http://www.hindu.com/nic/afa/>. The findings and recommendation of the committee were not declared formally. However, a copy of the same appeared in the Hindu and has been taken as the basis of this assessment hereafter.
  6. India Today. “Partial Removal of AFSPA Necessary in J&K: Says Omar Abdullah. 9 November 2011. <http://indiatoday.intoday.in/story/omar-abdullah-jammu-and-kashmir-afspa/1/159315.html>.
  7. Shillong Times. “AFSPA Must Be Withdrawn from Some Areas: Omar to Army.” 10 November 2011. <http://theshillongtimes.com/2011/11/10/afspa-must-be-withdrawn-from-some-areas-omar-to-army/.>
  8. India Today. “AFSPA’s Partial Withdrawal a Step Towards Peace in Jammu and Kashmir.” 24 October 2011. <http://indiatoday.intoday.in/story/afspa-withdrawal-army-jammu-and-kashmir-omar-abdullah/1/157342.html>
  9. Ibid.
  10. Op cit, n. 2.
  11. Samanth Subramanian. “The Long View: AFSPA’s Bitter Roots.” New York Times, 21 November 2011. <http://india.blogs.nytimes.com/2011/11/21/the-long-view-afspas-bitter-roots/#more-8705>.
  12. South Asia Human Rights Documentation Centre. “Armed Forces Special Powers Act: A Study in National Security Tyranny.” <http://www.hrdc.net/sahrdc/resources/armed_forces.htm>.
  13. Javaid Malik. “Revoke DAA, AFSPA will go: Experts to Govt.” Greater Kashmir, 28 October 2011. <http://www.greaterkashmir.com/news/2011/Oct/28/revoke-daa-afspa-will-go-experts-to-govt-53.asp>.
  14. Manoj Joshi. “Jammu and Kashmir: AFSPA Rollback Makes Sense.” India Today, 2 November 2011. <http://indiatoday.intoday.in/story/afspa-rollback-jammu-and-kashmir-p.-chidambaram-omar-abdullah/1/158289.html>.
  15. Sajad, Kralyari. “Kashmir Economic Alliance, KEA Demands AFSPA Revocation from Entire J&K.” Rising Kashmir, 15 November 2011. <http://www.risingkashmir.com/news/kea-demands-afspa-revocation-from-entire-jk-18042.aspx>.
  16. Ibid., p. 74.
  17. Ibid., p. 75.
  18. A. G. Noorani. “Armed Forces (Special Powers) Act: Urgency of Review.” Economic and Political Weekly XLIV, no. 34, 22 August 2009. p. 8.
  19. Ibid., p. 9.
  20. Ibid.
  21. Ibid., p. 10.
  22. Ibid., p. 11.
  23. Charles Chasie and Sanjoy Hazarika. The State Strikes Back: India and Naga Insurgency. Washington: East-West Centre, 2009. pp. 14–15. <http://www.eastwestcenter.org/fileadmin/stored/pdfs/ps052.pdf>.
  24. Ibid., p. ix.
  25. HighBeam Research. “AFSPA a Necessary Security Blanket for Armed Forces: MoS Defence.” <http://www.highbeam.com/doc/1G1-237566604.html>.
  26. Pravin Swami. “Army Raises ‘Secession’ Spectre to Counter Clan to Lift AFSPA.” Hindu, 11 November 2011. <http://www.thehindu.com/news/national/article2615878.ece>.
  27. Nitin Gokhale. “AFSPA Meet Inconclusive; Omar, Army Talk Tough.” NDTV.com, 9 November 2011. <http://www.ndtv.com/article/india/afspa-meet-inconclusive-omar-army-talk-tough-148371>.
  28. South Asian Idea. “AFSPA: The Larger Picture.” 16 November 2011. <http://southasianidea.com/internal-security/afspa-the-larger-picture/>.
  29. Times of India. “Omar Meets Central Leaders, Told Not to Push for ‘Immediate’ Withdrawal of AFSPA.” 15 November 2011. <http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401090_1_afspa-samba-and-jammu-partial-withdrawal>.
  30. Op cit, n. 28.
  31. Harinder Singh. “AFSPA: A Soldier’s Perspective.” IDSA Comment, 6 July 2010. <http://www.idsa.in/idsacomments/AFSPAASoldiersPerspective_hsingh_060710>.
  32. Ibid.
  33. Ibid.
  34. Op cit, n. 31.
  35. Sreenivasan Jain. “Kashmir: The Riddle of AFSPA.” NDTV.com, 21 November 2011. <http://www.ndtv.com/article/india/kashmir-the-riddle-of-afspa-151799>.
  36. A. K. Antony. “Antony Asks Army Top Brass to Ensure Non-Violation of Human Rights at Any Level.” Press Information Bureau, Government of India, 18 December 2009.<http://pib.nic.in/newsite/erelease.aspx?relid=56223>.
  37. General V. K. Singh. “Most Cases of HR Violation Are False.” Daily Bhaskar, 6 January 2012. <http://daily.bhaskar.com/article/most-cases-of-hr-violation-false-1486151.html>.
  38. Op cit, n. 5.
  39. Working Group on Human Rights in India and the UN <http://www.wghr.org/repeal-afspa.html>. For a legal perspective, see Ali Ahmed. “Reconciling AFSPA with the Legal Spheres.” Journal of Defence Studies 5, no. 2, April 2011. <http://www.idsa.in/jds/5_2_2011_ReconcilingAFSPAwiththeLegalSpheres_aahmed>.
  40. Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008), Section 49 (b). Op cit, n. 20. Italics by author.
  41. Op cit, n. 1.
  42. Op cit, n. 1, Section 4 (a) to (e).
  43. Section 15 of the UAPA includes “bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or any other substances (whether biological radioactive, nuclear or otherwise) of hazardous nature.”
  44. Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008). Op cit, n. 20. Statement of Objectives and Reasons.
  45. Ibid., Section 15.
  46. Ibid.
  47. The Jeevan Reddy Committee highlights four key advantages of the UAPA, including defining terrorism, identifying the organisations and giving an all-India outlook to the act, thereby obviating charges of discrimination and its comprehensive character with the ability to deal with unlawful organisations, terrorists and investigation, trial and punishment for terrorist acts. Op cit, n. 5, pp. 75–78.
  48. Ibid., Section 20.
  49. However, this objective will remain limited until the UAPA is applied uniformly after the withdrawal of the AFSPA.
  50. Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008). Op cit, n. 20. Chapter II and III, Sections 3–14.
  51. Ibid., Chapter VI, Sections 35–40.
  52. Ibid., Chapter IV, Sections 15–23.
  53. Ibid., Chapter V, Sections 24–34.
  54. Ibid., Sections 3–9.
  55. Ibid., Section 44.
  56. Ibid., Section 45.
  57. Arjun Sharma. “Omar Abdullah Offers to Amend Ranbir Penal Code for AFSPA Withdrawal. India Today, 25 November 2011. <http://indiatoday.intoday.in/story/afspa-withdrawal-omar-offers-to-amend-ranbir/1/161498.html>.
  58. The Code of Criminal Procedure 1973, Act No 2 of 1974, 25 January 1974, Section 45, <http://mha.nic.in/pdfs/ccp1973.pdf>.
  59. Issues related to mobs, unlawful assemblies, opening fire and presence of magistrate are some aspects that would be unsuitable in scenarios where the army deals with terrorists employed in a proxy war.
  60. Unlawful Activities (Prevention) Act 1967 as amended by Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008), <http://nia.gov.in/acts/The%20Unlawful%20Activities%20(Prevention) %20Act,%201967%20(37%20of%201967).pdf>.
  61. Ibid., p. 2.
  62. Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958, 6 June 2005. Op cit, n. 5, p. 16. The report refers to the constitutional provision by further stating that a period of 24 hours is available for handing over the accused, excluding the journey period.
  63. Draft chapter VI A to be inserted in the Unlawful Activities (Prevention) Act 1967, Section 40 A(5)(b). Op cit, n. 5, p. 89.
  64. Ibid., p. 90.
  65. The author is aware of a number of army personnel who were forced to move on attachment to units for inquiries on false cases filed against them. In some instances, the FIRs were filed against officers who were not even present in the areas indicated
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The views expressed are of the author and do not necessarily represent the opinions or policies of the Indian Defence Review.

About the Author

Col Vivek Chadha (Retd.)

is a Research Fellow at the Institute for Defence Studies and Analyses (IDSA), New Delhi.

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