Homeland Security

Reigniting AFSPA
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Issue Net Edition | Date : 10 Apr , 2019

Diwali is once a year but fireworks equivalent to 10 years during Diwali have been fired in run up to general elections 2019 – not actual firecrackers but through verbal abuse. But the Armed Forces Special Powers Act (AFSPA) starts the verbal war anytime, though this time it was ignited with the Congress Manifesto for Lok Sabha Elections 2019 saying, “The Armed Forces (Special Powers) Act and the Disturbed Areas Act in J&K will be reviewed. Suitable changes will be made in the text of the laws to balance the requirements of security and the protection of human rights.”

Worried about retaining their seats and enlarging own vote-banks, they are prepared not only to do down the soldiers but also assist separatists and terrorists both advertently and inadvertently.

Veteran Lt Gen DS Hooda came under blistering attack as the protagonist behind inserting this in the Congress Manifesto since he had prepared the national security strategy vision document for the Congress.

It is quite understandable why media jumps on any uttering by someone who had worn military uniform because one major reason for journos enjoying foreign funding is to keep hitting at the military. But that is not the only reason. Remember how General VK Singh, MoS in ruling government was consistently hounded till northeast was divested from his portfolio. Naturally, it wasn’t connected with the same amount of narcotics entering from our eastern borders as from the west (sic). And, oh sometime you do hear of drugs going in reverse, from India to Myanmar, for ‘refinement’.

But reverting to AFSPA  Hooda has clarified by saying, “There are, in fact shortfalls in the AFSPA in protecting our soldiers, especially after the Supreme Court judgment of July 2016, which basically held military personnel could not escape investigation for excesses during discharge of duty even in disturbed areas. A review is needed, not dilution or removal”.  Draw your own conclusions whether Hooda’s intent is to ensure soldiers continue to get protection under AFSPA, as mandated, or otherwise.

Looking back over the years, it is quite clear that other than terrorists and separatists, it is the politicians not in power who bat for removal or dilution of power. Before becoming Chief Minister of J&K, a radical-terrorist-linked woman like Mehbooba Mufti was actively campaigning for removing AFSPA. But she turned turtle after she became the Chief Minister knowing no bullet-proof padding would save her back, if the Army was removed. That she continued to target the Army including through hordes of stone-pelters is another issue.

But the bottom line is that lives of soldiers don’t mean a thing to politicians. Worried about retaining their seats and enlarging own vote-banks, they are prepared not only to do down the soldiers but also assist separatists and terrorists both advertently and inadvertently.    

Under the Passport Act, a passport cannot be issued to a person involved in any criminal case. However, in case of Yasin Malik… He has been issued with a passport in violation of the Act and Malik has managed to visit many countries.

Recently, there has been media excitement over government security having been withdrawn from separatists. Why did this have to wait till general elections? Next is the hoopla over recent arrest of Yasin Malik who heads the Jammu and Kashmir Liberation Front (JKLF). He is facing trial in the killing of four Indian Air Force (IAF) officers at Rawalpora, Srinagar in October 1990, and for the kidnapping of Rubiyya Sayeed, daughter of former Union Home Minister Mufti Mohd Sayeed and Mehbooba Mufti’s sister. Former militant commander, Hilal Ahmed War, claims the kidnapping of Rubaiya Saeed (Mehbooba’s sister) was stage managed by her father Mufti Mohammad Seed then Union Home Minister, through Yasin Malik (http://www.jammukashmir.com/archives/archives2005/kashmir20051114a.html).

Under the Passport Act, a passport cannot be issued to a person involved in any criminal case. However, in case of Yasin Malik, supposedly facing trial for a heinous crime, it shamefully was not applied, and no one was questioned. He has been issued with a passport in violation of the Act and Malik has managed to visit many countries. He had the temerity to boast to Tim Sebastian on the show Hard Talk on BBC that he killed the four unarmed IAF officers who were waiting for their transport. Not only has he been travelling to Pakistan, he even gets a generous stipend from the Intelligence Bureau’s secret funds.

All Indian government since 1990, including Congress, BJP led and others, are party to this shame; traitors across the board with all the talk of nationalism, Bharat Mata and similar slogans. Little wonder then that terrorists treat the state as a pack of jokers. So, the BJP putting Yasin Malik behind bars once again at a time of upcoming elections is no great shakes, even as Mehbooba Mufti and some other J&K politicians are suffering stomach cramps. Sincerity will only be proved if and when this rat is hanged. The second shameful example is the infamous ‘Shopian Incident’ that happened on   January 27, 2018, and was pre-planned by then J&K State Government.

The Shopian incident saw an army convoy subjected to heavy stone-pelting by a 200-300 strong frenzied mob resulting in grievous injury to a JCO who the mob tried to kill, injured 7-8 soldiers, set fire to and damaged army vehicles that forced the army to open fire resulting in the death of three civilians, evoking a response from the J&K State Government and the Centre that can only be described as a blot on the nation. Centre because of the deafening silence, including by the Defence Minister Nirmala Sitharaman; which amounted to the State directly siding with terrorists-cum-terrorist supporters and the Centre indirectly. In fact, Sithharaman reportedly gave her nod to Mehbooba Mufiti to go ahead and file FIR’s against the soldiers.

The fact unknown to the public is that the AFSPA was NOT drafted by the Armed Forces, either for Northeastern States or for J&K.

BJP’s response the Congress Manifesto mentioning review of AFSPA and the  Disturbed Areas Act in J&K plus suitable changes in their text to balance the requirements of security and the protection of human rights, has been voiced by many political leaders.

Union Home Minister Rajnath Singh addressing an election rally recently said, “We have strengthened the hands of our soldiers with AFSPA in disturbed areas where extremists and terrorists run their activities. But Congress wants to weaken our soldiers and security forces. We will not let this happen.” But Rajnath’s claim “we have strengthened the hands of our soldiers with AFSPA in disturbed areas” is baseless. AFSPA was not invoked in J&K by Rajnath Singh or the BJP-led NDA II. The two examples of dealing with Yasin Malik and the Shopan Incident are quite opposite of strengthening the hands of soldiers.  

The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted in September 1990 on the basis that if the Governor J&K or the Central Government is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition that it can be declared ‘Disturbed Area’ and call for deployment of Armed Forces, then this Act can be imposed.

Declaration of ‘Disturbed Area’, if the Governor or Central Government, in its opinion there exists a dangerous situation in the said area which makes it necessary to deploy armed forces in the region to prevent: one, terrorist acts aimed at overthrowing the government, striking terror in the people, or affecting the harmony of different sections of the people, and; two, activities which disrupt the sovereignty of India, or cause insult to the national flag, anthem or India’s Constitution.

AFSPA was enacted for J&K after due deliberations and debate in Parliament.

To put it simply, AFSPA comes into play ‘after’ a state or part of a state is declared “Disturbed Area” and the Armed Forces are called in. Most importantly, an area is declared ‘Disturbed Area’ when the state administration has become defunct and cannot control the situation with police forces. The fact unknown to the public is that the AFSPA was NOT drafted by the Armed Forces, either for Northeastern States or for J&K.

AFSPA was enacted for J&K after due deliberations and debate in Parliament. There is no denying that the situation in J&K is volatile, particularly in the five-six districts of Kashmir Valley, aggravated by the BJP-PDP coalition government while Pakistan continues to fan radicalization and terrorism. Any dilution in AFSPA will assist Pakistan, terrorists and separatist forces.

As mentioned above, Lt Gen DS Hooda has talked of shortfalls in the AFSPA in protecting our soldiers, referring to a particular judgment which held military personnel could not escape investigation for excesses during discharge of duty even in disturbed areas.

The basic question here is what is considered “excesses” and whether the Shopian incident involved excesses that warrants prosecution. But most importantly, can the Supreme Court interfere in the provisions of AFSPA which was passed by the Parliament and is forte of the legislature? How much experience of counterinsurgency experience the judiciary has is questionable too. Yet, they pass judgments related to AFSPA, which wily politicians pick up ‘selectively’ in what suits their political agenda.

AFSPA does not confer arbitrary powers to declare an area as a ‘disturbed area’. It is the other way around. The Supreme Court had upheld the constitutionality of AFSPA in a 1998 judgment (Naga People’s Movement of Human Rights v. Union of India). But the Supreme Court had also ruled that a suo-motto declaration can be made by the Central government, however, it is desirable that the state government should be consulted by the central government before making the declaration, and a ‘disturbed area’declaration has to be for a limited duration and there should be a periodic review of the declaration six months after it has expired.

The Army certainly doesn’t enjoy being used against own citizens but any dilution of AFSPA will imply reducing Army’s effectiveness to that of police.

So now the question is why is J&K continuing as ‘Disturbed Area’ since 1990? Surely we cannot keep blaming Pakistan alone, absolving the Centre and the State Government who have done little to improve administration and are happy with the continuing insurgency since it helps retain power and makes them richer through the militant-industry. 

Closer examination would establish that provisions of the AFSPA are  as humane as it is possible. Yet, time and again, it is the Armed Forces, particularly the Army, are under fire with respect to AFSPA. The Army certainly doesn’t enjoy being used against own citizens but any dilution of AFSPA will imply reducing Army’s effectiveness to that of police. Continued classification of J&K ‘disturbed area’ must be questioned and the state administration needs to be put under the knife, not physically but for the lack of administration. Take away the ‘Disturbed Area’ tag and the problem of AFSPA will be resolved, with the Army reverting to its primary task of defending the borders.

The Army anyway is being forced to shed some 1,00,000 manpower. In contrast, the Central Armed Police Forces have crossed the Army in terms of numbers and are still expanding. During his visit to J&K last year, Rajnath Singh announced establishment of nine additional Central Armed Police Force (CAPF) battalions for J&K. NDA-II has also been working hard on bringing up the CAPF above the Army. So let the J&K State manage the show with their police forces, augmented by CAPF. But stop baiting the Army and insidious attempts to tie their hands in counterinsurgency areas to cover up maladministration of the state government and nonchalance of the union government; even to incidents of security forces killed on account of stone-pelting. 

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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

Lt Gen Prakash Katoch

is a former Lt Gen Special Forces, Indian Army

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