Indian Defence Review

Under Article 246 of the Constitution, Parliament makes laws concerning the deployment of the Armed Forces “in aid of the civil power”, prescribing the powers, jurisdiction, privileges and liabilities of soldiers during deployment. AFSPA is one such law. Other Acts are the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950, and associated Rules and Regulations, to administer military law to all ranks of the three armed forces. These laws abrogate a soldier’s constitutional rights under Art.19(1)(a), (b) and (c), of freedom of speech and expression to communicate with the media, freedom of assembly, or the right to form or be members of associations or unions for collective bargaining. Thus, because of the nature of duties performed by them and for maintenance of strict discipline among them, soldiers are by law, uniquely disempowered citizens unlike members of the bureaucracy and the central and state police services on whom administrative rules may impose certain restrictions.

When government calls the army for IS duties as for example, to quell rioting, the army may confront a violent crowd. The army officer commanding the sub-unit is obliged to take the written permission of a magistrate who accompanies the sub-unit, before opening fire if the situation so warrants according to the discretion of the magistrate, because the soldier cannot use firearms against civilians without permission from civil authority. But when law and order breaks down in a large area, government cannot provide a magistrate to accompany every army sub-unit day and night, and therefore empowers the army to handle such situations by means of AFSPA.

AFSPA and the armed forces

AFSPA Sec.3 confers upon a state or central government, powers to declare the whole or some part of the state as a “disturbed area” … “in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary”, by issuing a notification to that effect. The assessment of the condition of society and the discretion to notify it as disturbed is the sole prerogative of government; the armed forces have no role in this whatsoever. AFSPA Sec.4 confers special powers upon members of the armed forces in the notified disturbed areas to arrest, enter and search, or open fire.

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AFSPA is applicable only to the armed forces under the Ministry of Defence, and not to central paramilitary or state police forces under central or state Ministry of Home Affairs respectively. The Constitution of India makes a distinction between “the members of the Armed Forces” (Art.33(a)) meaning soldiers, and “members of the Forces charged with the maintenance of public order” (Art.33(b)) meaning police personnel. Thus the term “Armed Forces” (proper noun) or “armed forces” (common noun) should not be applied to just anybody of uniformed armed persons such as police or paramilitary who may be authorized and trained to use firearms, but only to the soldiers of India’s military.⁴ But, unable to distinguish between the armed forces and civilian forces that bear arms, media persons often use the catch-all term “security forces” or “armed forces” to include military, paramilitary and police.

The confusion is exacerbated because often paramilitary and police forces wear camouflage uniforms that are virtually indistinguishable from army uniforms, and in tense situations where the journalist himself takes risks, it can be dangerous to ask an armed man to which force he belongs. Thus often enough, the media and the public straightaway blame the army for incidents involving paramilitary or police, because of AFSPA being in force, and even if subsequent inquiry finds that the army was not involved, the negative “Army-AFSPA” image persists in public opinion.

Repeal or amend AFSPA?

On March 5, 2013, Tahir Ahmad Sofi, 25, died allegedly due to firing by the army’s 46 Rashtriya Rifles Battalion on a group of people in Baramulla. Whatever the provocation for opening fire and the facts of the case, J&K CM Omar Abdullah “pleaded that the civil government was faced with handicaps due to the AFSPA that gave extraordinary powers to the armed forces”. He is quoted as saying, “… I am vehemently raising the issue of partial revocation of AFSPA so that the erring forces personnel do not go scot-free”.⁵

CM Omar Abdullah is surely aware that he can instantly remove AFSPA by withdrawing the notification declaring Baramulla or other areas as disturbed, if it is a handicap for exercising his political skills. But he does not, because de-notifying the area amounts to declaring that there is no disturbance in the area, and his government cannot do without the army deployed in IS duties. Hence he calls for “partial revocation of AFSPA” (for which there is no provision in the Act), and only wants the “erring forces” to be punished. The erring soldier can be identified only after an inquiry into the circumstances that caused the army to open fire, and into the truth of statements and claims from all sides. Because the soldier is on active service under AFSPA which, it cannot be over-emphasized, is not a means to avoid meting out just punishment to soldiers who commit civil offences, the compulsions of AA Sec.70 and due military law process (C-of-I, etc) remain. Of course, delay or prevarication by army authorities in bringing soldiers committing civil offences to justice, remains condemnable.

Notwithstanding the constitutionally permissible last-resort necessity of using military force for internal security when the political-administrative tools of governance fail, there is no justification for an elected government to use even police force continuously over decades for day-to-day governance. People in our northeastern states and Kashmir, for decades trapped in the crossfire between government police and military forces and the bullets, grenades and IEDs of militants, want nothing more than peace and democratic freedoms.

Irom Sharmila, a national icon of courageous non-violence, who has been on fast for 12 long years demanding repeal of AFSPA, states it unequivocally: “I am against a government that uses violence as a means to govern”. She goes further to say that “the government and the army are colluding to cheat the people”.⁶ While her stating that the people are being cheated of peace, social order and meaningful development is understandable, her accusation of army’s colluding with government, suggesting that the army has an institutional interest and stake in IS deployment, is completely wrong. It bears repetition that the army comes out of barracks at the specific call of government and not of its own accord. Clearly, “cheat the people” refers to government cheating the people through abject failure of the politics of development, and monumental political corruption of ideology and principles. Decades-long continuous violence as an instrument of governance is antithetical to peace and social order essential for development of the sort that people need and crave.

Hearing several petitions challenging the constitutional validity of AFSPA, the Supreme Court ruled in 1997 that the powers given to the army by AFSPA were not arbitrary or unreasonable and did not violate constitutional provisions. However, the Supreme Court went further to rule that (#) declaration of an area as disturbed should be reviewed every six months, (#) central government sanction or refusal to prosecute army personnel should be accompanied by reasons in writing, and (#) safeguards or guidelines providing “DOs and DON’Ts” to army personnel operating under AFSPA would be legally binding.^[c]

The restriction that government should review the declaration every six months is cosmetic, since it merely calls for biannual bureaucratic paperwork. It has not prevented governments from maintaining entire states as disturbed areas continuously for decades. To limit army deployment on IS duties, the continuity of AFSPA needs to be broken. This writer suggests amendment by inserting a final sentence in AFSPA Sec.3 as follows: “Provided that the Governor of the State or the Administrator of the Union Territory or the Central government shall not declare an area as disturbed for more than an aggregate of 90 days in any calendar year.” The period of 90 days suggested can only be finalized after wide public discussion and cross-party consultation.

The way ahead

The use of the military in aid of the civil power is an option that no government, howsoever liberal, will discard especially since it has constitutional sanction. The military on IS duties is to civil society what an ICU is to a critically ill person. A patient cannot remain for years in a hospital ICU, because he/she would be effectively dead. The patient needs treatment for the disease and right nutrition to regain normal health. Likewise, the military remaining deployed on IS duties over decades makes civic and political life in society effectively dead, without assuring peace or security. India’s societies need the “treatment” of honest political effort by transparent dialogue and engagement with people, and the “nutrition” of good governance for their growth. Society does not need the army, except to guard the country’s borders against external aggression.

While no Central government may ever propose to Parliament to repeal AFSPA, it would certainly be open to amending it. An amendment to limit the applicability of AFSPA to an aggregate of, say, 90 days in any calendar year, will allow governments to retain the admittedly coercive option of military deployment when civil administration fails to maintain law and order. This limitation will spur governments to rediscover ways of providing a troubled society with honest politics and good governance. It will also enable the army, one-third of which is deployed for internal security due to governance failure, to revert to its primary external security role on India’s borders.

References

1. Sanjoy Hazarika; “An abomination called AFSPA”; The Hindu, Op-Ed page, February 12, 2013.
2. Walter Fernandes; “AFSPA: Who Rules India?”; Mainstream, Vol LI, No.10; February 23, 2013; pp.11-12.
3. S.G.Vombatkere; “Violating the Vulnerable: Manifestations and Attitudes”; Mainstream, New Delhi, Vol LI No 8; February 9, 2013, pp.9-12.
4. S.G.Vombatkere; “Governance and the Armed Forces”, Mainstream, New Delhi, Vol XLIX No 15; April 2, 2011; p.19-20.
5. “Revoke AFSPA, says Omar, after youth is shot dead in Baramulla”; The Hindu, March 6, 2013; p.12.
6. Jiby Kattakayam; “I am against a government that uses violence to govern”; The Hindu, March 5, 2013; page 12.

NOTES

[a].  A high-power committee set up in 2006 by the Planning Commission of India, ascribed growing militancy to people’s discontent and failure of governance, and showed a direct relationship between extremism (militancy) and poverty. (S.G.Vombatkere, “An Examination of Conflict – Costs, Benefits and More”, Mainstream, New Delhi, Vol XLVIII No 19, May 1, 2010, p.11-17).

[b].  The C-of-I is convened within 48 hours of the commission of offence and usually completes its investigations and deliberations within 15 days, to establish prima facie commission of the offence. In contrast, the civil administration’s lackadaisical processes take months or even years, during which “smoking gun evidence” is invariably lost, witnesses vanish or are tutored, and political interference is facilitated, and the accused person languishes in prison.

[c].  List of DOs & DON’Ts as directed by the Supreme Court in NPMHR v. India in 1997, that are legally binding

DOs

1. Action before Operation

(a) Act only in the area declared ‘Disturbed Area’ under Section 3 of the Act

(b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO

(c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities

(d) As far as possible coopt representative of local civil administration during the raid.

2. Action during Operation

(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention of law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning

(b) Arrest only those who have committed cognizable offence or who are about to Commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence

(c) Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities

(d) Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only

3. Action after Operation

(a) After arrest prepare a list of the persons so arrested

(b) Hand over the arrested persons to the nearest police station with least possible delay

(c) While handing over to the police a report should accompany with detailed circumstances occasioning the arrest

(d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case

(e) After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession.

(f) All such arms, ammunition, stores etc. should be handed over to the police station along with the seizure memo

(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police

(h) Make record of the area where operation is launched having the date and time and the persons participating in such raid

(i) Make a record of the commander and other officers/JCOs/NCOs forming part of such force

(k) [sic] Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death

4. Dealing with civil court

(a) Directions of the High Court/Supreme Court should be promptly attended to

(b) Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid

(c) Answer questions of the court politely and with dignity

(d) Maintain detailed record of the entire operation correctly and explicitly.

DON’Ts

1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station

2. Do not use any force after having arrested a person except when he is trying to escape

3. Do not use third-degree methods to extract information or to a extract confession or other involvement in unlawful activities

4. After arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force

5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities

6. Do not tamper with official records

7. The armed forces shall not take back a person after he is handed over to civil police.

List of DO’s and DON’Ts while providing aid to civil authority

DOs

1. Act in closest possible communication with civil authorities throughout

2. Maintain inter-communication if possible by telephone/radio

3. Get the permission/requisition from the Magistrate when present

4. Use little force and do as little injury to person and property as may be consistent with attainment of objective in view

5. In case you decide to open fire

(a) Give warning in local language that fire will be effective

(b) Attract attention before firing by bugle or other means

(c) Distribute your men in fire units with specified Commanders

(d) Control fire by issuing personal orders

(e) Note number of rounds fired

(f) Aim at the front of crowd actually rioting or inciting to riot or at conspicuous ringleaders, i.e., do not fire into the thick of the crowd at the back

(g) Aim low and shoot for effect

(h) Keep Light Machine Gun and Medium Gun in reserve

(i) Cease firing immediately once the object has been attained

(j) Take immediate steps to secure wounded

6. Maintain cordial relations with civilian authorities and paramilitary forces

7. Ensure high standard of discipline

DON’Ts

8. Do not use excessive force

9. Do not get involved in hand-to-hand struggle with the mob

10. Do not ill-treat anyone, in particular, women and children

11. No harassment of civilians

12. No torture

13. No communal bias while dealing with civilians

14. No meddling in civilian administration affairs

15. No Military disgrace by loss/surrender of weapons

16. Do not accept presents, donations and rewards

17. Avoid indiscriminate firing.

Source: Naga People’s Movement of Human Rights v Union of India [1997] ICHRL 117 (27.11.1997).