Indian Defence Review

Stone Pelting by the Kashmiris

The Armed Forces Special Powers Act (AFSPA)-1958 was enacted by the Parliament on September 11, 1958, to provide necessary powers and legal protection to the Armed Forces while carrying out proactive operations against the insurgents in a highly hostile environment. Since then, the Armed Forces have been able to effectively contain insurgency and establish stability in the region. With the ongoing insurgency in the North East, the AFSPA-1958, is currently applicable in the States of Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura, as also Tirap and Changlang districts of Arunachal Pradesh. Subsequently, the Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act-1990 for the state of Jammu & Kashmir, which came into effect on July 05, 1990.

In the last quarter of 2011, the Armed Forces Special Powers Act (AFSPA) was much in the news. Not that it has never been up for public debate, this time around the Chief Minister of Jammu & Kashmir (J&K), himself was pushing the proposal for revocation of the AFSPA from the State of J&K or at least lift it partially albeit selectively. Discussion on the AFSPA has been going on sporadically over the last two decades. It raises its pitch especially when an alleged human rights violation comes to the fore either in J&K or in any troubled state in the North East.

The AFSPA-1958 was enacted by the Parliament on September 11, 1958, to provide necessary powers and legal protection to the Armed Forces while to carrying out proactive operations against the insurgents in a highly hostile environment. Since then, the Armed Forces have been able to effectively contain insurgency and establish stability in the region. With the ongoing insurgency in the North East, the AFSPA-1958, is currently applicable in the States of Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura, as also Tirap and Changlang districts of Arunachal Pradesh. Subsequently, the Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act-1990 for the state of J&K, which came into effect on July 05, 1990.

Initially, the Government had declared areas falling within 20 kms of the Line of Control (LoC) in the districts of Rajouri and Poonch as also the districts of Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar as disturbed. Subsequently, in August 2001, the AFSPA was extended to the districts of Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda, when these were also declared ‘disturbed’.

Demand to Repeal/Revoke AFSPA

The longstanding demand of separatists, their supporters and some political parties has been to repeal the AFPSA altogether. However, the Chief Minister of J&K has propounded the idea of a partial revocation from certain areas of the state. Echoing public sentiment, its votaries repeatedly blast the Act as “draconian” in nature and the Army’s misuse of the Act to perpetrate human rights violations and excesses.

Need for Legal Protection

An analysis of ground realities vis-a-vis the situation in early 1950s makes it evident that the fighting capability of the militants in the North East and J&K has improved considerably over the years. They possess sophisticated weapons, modern communication equipment and have moral and financial support from across the borders. Areas close to the international border witness trans-border movement of militants from their camps and hide-outs in neighbouring countries.

The Armed Forces are required to operate in varied terrain such as thick forests, in far flung areas and also in the built up areas ranging from small hutments and villages to towns and cities, where the insurgents have established their training camps and support bases. Not only do the troops operate in hostile terrain, they also work in an unfriendly population environment exposing themselves to grave dangers demanding very high degree of operational effectiveness. At the same time, the Armed Forces are under pressure to be extremely cautious and avoid collateral damage and loss of innocent lives or property. Any violation or perceived violation attracts media attention and provides a opportunity for propaganda to factions with vested interests. On most occasions, allegations have been found to be false and evidence fabricated but nevertheless, have to be answered, rebutted or contended with. Operating under such environment requires a protective law lest the forces get embroiled in legal battles and their effectiveness is reduced in operations for which they have been deployed in the first place.

Is the Act Illegal?

The term ‘draconian’, which implies exceedingly harsh or very severe, normally refers to a legal code or a set of government laws. Public sentiment and those swaying with it, be they NGOs, human rights activists and the like often term the AFSPA as illegal and unconstitutional. Nothing could be further from the truth.

The vires of the said Act in general and of Sections 3, 4 & 6 thereof in particular, came up for scrutiny before a Constitutional Bench of the apex Court in a case titled ‘Naga People’s Movement of Human Rights Vs the Union of India’. The five-judge constitutional bench elaborately dealt with the challenge to the legality of deployment of the Armed Forces in aid to civil power. The Court unambiguously ruled that the AFSPA cannot be regarded as a colourable legislation or a fraud on the Constitution. The Court opined that the conferring of powers vide Section 4 of the AFSPA could not be held arbitrary or violative of Article 14, 19 or 21 of the Constitution. In fact, having considered the role and circumstances under which the Armed Forces have to operate, the honourable Court extended the scope of powers vested vide sections 4 and 6 of AFSPA so as to include, by implication, the power to interrogate persons arrested. It also allowed the Armed Forces to retain the weapons seized during operations instead of handing over to the police authorities.

The mere fact that the provisions of the AFSPA have to be invoked with regard to a particular area ex facie establishes that the law and order situation in the said area had degenerated to such an extent that the State Government with the aid of the police at its disposal was unable to maintain peace and tranquility. A natural corollary to the above would be that if the Armed Forces, who are called upon to assist the State administration in restoring normalcy, have to succeed in their task, they enjoy at least the similar powers, if not wider ones as the police does. A perusal of the various powers available to the police authorities under the provisions of the Criminal Penal Code vis-à-vis those available to the Armed Forces under the AFSPA would reveal that the police authorities still enjoy more encompassing and wider powers relating to arrest, search, seizure, summoning of witnesses and preventive detention than the powers enjoyed by the Armed Forces.

In October 2010, the Chief of the Army Staff, in an interview to the Raj Chengappa, Editor-in-Chief, The Tribune categorically stated that, “The AFSPA is an enabling provision and Act passed by the Parliament. It assists the Armed Forces in dealing with special situations.” According to him, the Act provides protection to the soldiers who are operating under difficult and sensitive circumstances.

One of the most important tasks before the Government is to maintain proper balance between the interest of the individual and those of the democratic society. Individual freedom has to be balanced with the freedom of other individuals and with reasonable demands of the community and the general public. It is the duty of the state to harmonise the rights of the individual with the requirements of the community. The Central Government vide Article 355 of the Constitution of India is duty bound to protect every state not only against external aggression but also internal disturbances and to ensure that every state is governed in accordance with the provisions of the Indian Constitution.