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.

It is also an established fact that the judiciary is the custodian of the Constitution. An independent judicial system performs better than any other agency to maintain equilibrium between the liberty of the individual and the powers of the State. It is in this context that the Honourable Supreme Court of India has upheld the constitutional validity of the AFSPA. The Court further observed that the instructions issued by military authorities in the form of “Do’s and Dont’s” while acting under the AFSPA are to be treated as binding and are required to be followed by the Armed Forces.

By analysing the issue of safeguard further, it would transpire that the protection envisaged is for only those persons who act in good faith in discharge of their official duties and not otherwise. Acting in good faith would mean to act without any malice.

The protection under Section 7 would not be available to a member of the security forces who commits acts which constitute criminal offences not in the discharge of his official duties even in the areas which have been declared as ‘disturbed’. The sine qua non for the applicability of Section 7 is that the offence charged, be it one of commission or omission, must be one which has been committed by the member of security forces in his official capacity.

Repeal or Retain AFSPA?

Should the Act be repealed based on the supposed ‘normalcy’ in 2011? There is no doubt that 2011 has been a year sans massive protests; it has seen an increased influx of tourists and yatris and by and large, the violence levels have been at an all time low. But so was 2009 relatively peaceful after the Amarnath Shrine Board Agitation in 2008. Similarly, just when normalcy appeared to be returning in 1999, Pakistan hit us with Kargil. Goes to show that one swallow definitely does not make a summer.

We ought to look at the other parameters that continue to indicate that conditions which led to the imposition of the AFSPA and Disturbed Areas Act have still not diminished to a degree that we lower our guard completely. Over 40 terrorist camps exist in Pakistan and PoK, with 600 to 700 terrorists in camps and launch pads that could be utilised for infiltration into J&K. People still fear terrorist strikes both in urban and rural areas. The J&K police continue to be attacked periodically and sentiments of secession and azaadi are relevant. The Kashmiri Pandits remain refugees in their own state. Insult to the National Flag and National Anthem are witnessed regularly. So, have the conditions and sentiments changed, really? This is not to suggest that the situation is grave. Yes, there is a definite improvement on most counts over the years. But the moot point remains, “Is the picture so rosy, so as to throw caution to the winds?”

From the Indian Army’s perspective, there is a strong case for retention of the AFSPA. In Pakistan’s perception, the status of the state of J&K continues to remain disputed. To ward off external as well as externally inspired internal threats, a large presence of troops is required to defend the territory of the nation by securing the LoC. This defence can be organised only by ensuring domination along the LOC by physical and justifiable use of force. Areas in depth frequented by militants similarly need to be dominated, searched and neutralised. The arteries feeding the far-flung areas also need to be kept sanitised for utilisation by the security forces and Government agencies. All this and more is only possible provided the AFSPA, which provides the legal framework for the troops to perform their duties, remains operative and not revoked. Repealing will result in severe limitations to the Army and its impact will be felt in a variety of ways.

• Proactive operations will be severely affected under extant laws for aid to Civil Authority since it has major limitations in this kind of an environment and will result in the initiative being passed on to the militants.
• The Army will not have the powers to arrest or search any individual or premise suspected to be indulging in or being used for anti-national activities.
• The Armed Forces will not be able to use any force to diffuse a situation other than in self defence.
• Powers to destroy ammunition dumps and Improvised Explosive Devices (IEDs) will be curbed.
• Units will not be able to perform their duties in the prevailing environment without proper legal cover. This would be detrimental to morale of the soldiers on the ground.
• It would bolster the will of anti-nationals and provide an opportunity to tanzeems to fuel militancy.

Partial Revocation/Removal

The foremost issue being proposed in the recent months is the ‘Partial Removal of the AFSPA’ from possibly four districts of the state, including Srinagar and Budgam. Conceptually, partial withdrawal from certain areas suffers from the same drawbacks that prevent a total repeal of the Act.

Merely low levels of violence and fewer Army operations in those specific areas do not justify repealing the Act. It is not as if the terrorists have disappeared from the area or demands of secession have receded or their support structures have simply vanished. The greater problem, however, is in its implementation. One must remember that J&K is not only a state afflicted by terrorism; it is equally important to the defence of the country from the point of view of conventional operations. Vital lines of communication pass through the Valley for operations and logistics in sensitive border regions of Siachen, Kargil and Ladakh. Important defence installations, bases, logistic support areas are located along the National Highway and Army convoys carrying guns, ammunition and equipment have perforce to travel along these. Security of convoys is a primary responsibility of the Army and cannot be completely entrusted to allied agencies.

Then there is the question of conducting Army operations in ‘Non-AFSPA’ areas, necessitated due to operational compulsions. Seeking requisite permission to operate in such areas is bound to be time consuming and tactically inexpedient. There will be no protection either for the Army troops engaging terrorists in such areas. Also, there are tactical difficulties that will arise in marking of boundaries of such ‘Non-AFSPA’ areas and rules of engagement against terrorists across these boundaries. It is inconceivable that we should reach a situation where a sub unit will need to seek permission for hot pursuit within our own territory!

Section 45 of the Criminal Penal Code disallows arrest of public servants and Section 197 provides immunity against prosecution which is similar to Section 7 of the AFSPA. The Supreme Court has mandated Government sanction prior to initiating prosecution against police personnel for excesses or killings committed during the maintenance of law and order. The applicability of Section 45 of the Criminal Penal Code is not allowed in the laws of the State of Jammu & Kashmir where the Ranbir Penal Code is applicable and ipso facto the personnel of Armed Forces can be arrested for any perceived excesses.

From experience, it is known that any area that is declared ‘out of bounds’ for Army operations for whatever reason, gradually becomes a safe haven for terrorists and their supporters. Indirect denial of Army to function in such areas will permit the terrorists to regain hard-earned tactical and psychological space that has been gained over years of concerted efforts. In a similar move in Imphal, about seven years ago, the Government created such a zone within the troubled city of Imphal in Manipur. Within no time, the area becomes a safe haven for terrorists of Naga, Kuki and Meitei groups. Security Forces including the Army, Assam Rifles and Para Military Forces tried to have the order reversed and the provision of the AFSPA re-invoked for years but to no avail. Seeking permission to conduct operations based on very reliable and authentic real time intelligence often proved futile and opportunities went begging. If we do not draw lessons from this, we are likely to revisit history at our peril.

Allegations of Human Rights Violations

Section 7 of the AFSPA states, “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

The general perception is that the Army has been shielding its soldiers even when they have carried out excesses in violation of human rights. Muzamil Jaleel in the Indian Express of November 07, 2011, states that, “The Army has routinely been invoking the immunity clause to shield its men from being prosecuted in civil courts.” It would be worthwhile to look at the record of human rights violations raised against the Indian Army and the action taken by the Army in this regard.

The Indian Army attaches the highest importance to upholding human rights in its counter terrorism operations which are conducted using minimum force, avoiding collateral damage, acting in good faith and maintaining high moral standards. After detailed investigation into the alleged human rights violation cases involving Army personnel, only 54 cases out of 1,517 received since 1994 have been found to be true, amounting to less than four per cent. Of the 129 persons who have been punished, there were 38 officers, 12 JCOs and 79 soldiers. Punishments awarded are severe and exemplary including dismissal from service with rigorous and even life imprisonment.

Consistent efforts to reduce human rights violations have been very successful. In J&K, there were 150 allegations reported in 2002. These have progressively declined to 18 in 2010 and a couple in 2011. Where violations are proved, action against the perpetrators is quick and transparent. Concurrent to speedy dispensation of justice, prompt action is initiated to provide succor and solace to the aggrieved. However, there are many cases projected as human rights violations that are pre-meditated and stem from vested interests to malign the security forces.

Doubts have been raised that while punishments may have been awarded to over a hundred Army personnel, most of these are minor in nature and that soldiers are generally let off lightly. It is for the information of such doubting Thomases that in over 50 of those cases, officers and men have been dismissed from service with most having been given rigorous imprisonment for offences such as rape, murder, extortion and even molestation.

Suo Moto Action by the Army

Of great significance is the fact that the Army is a unique organisation that does not believe in initiating action only on receipt of a complaint, allegation or media report. In vogue is a system of ‘After Action Reports’ and a robust ‘feedback’ procedure that stimulates introspection. In house, informal or formal investigations are ordered and suo moto action activated. To illustrate, two soldiers of a Rashtriya Rifles unit were tried for rape in 1995 and dismissed from service and awarded ten years’ rigorous imprisonment in civil jail. Almost 11 years later, in 2006, the State Government sought prosecution sanction that was logically denied since action had already been completed.

There have been cases that have been taken over by the Army for trial from civil courts under the Adjustment of Jurisdiction Rules. In one case in 2007, one NCO’s case for alleged molestation under Police Station Bandipur in J&K was taken over from the Judicial Magistrate, Bandipur and the NCO was tried under the Army Act and reduced to the ranks. Another case involving an officer was taken over from the Chief Judicial Magistrate, Handwara, J&K in 2004. The officer was tried by a Court Martial and dismissed from service.

Recently, there has been resentment among a section of people in Kashmir that the Army is delaying the inquiry on the Machil incident that occurred in 2010. Indian Army representatives have amplified quite categorically that their request for handing over the case has been denied by the Chief Judicial Magistrate, Sopore. A Revision Petition filed before the Principal District and Sessions Judge, Baramulla was dismissed. A Writ Petition challenging the denial of concurrent jurisdiction and the challan being without the sanction of the Central Government is pending in the High Court at Srinagar. The delay according to the Army is, therefore, due to the High Court and the State Government.

No commander worth his salt would like to lead an undisciplined force. To him, the larger picture is more important. A disciplined force will deliver results when the chips are down and difficult options have to be adopted. The strength and will of the Indian Army was displayed in Kargil where young officers and soldiers carried out unimaginable tasks with a zeal and commitment only a well-bred and disciplined force can muster. Therefore, every commander wants to bind together a team that follows instructions and has the ‘izzat’ of the Regiment and the Army in its sights at all times. It is in this context that a proactive disciplinary process is followed within the Army. In the last decade, 69 officers and men have been punished in 37 cases in Northern and Eastern Commands, all investigated suo moto, based on internal reporting. These 69 personnel are over and above the 129 punished due to reports emerging from NHRC, SHRC and such agencies.

Emerging Status

The AFSPA debate has been a long sparring bout conducted in the latter half of 2011. The main boxing bout is still to be fought. Shadow boxing matches were carried out between political parties at the state level (NC, PDP and Congress); at the National level (Cong, NC and BJP); the J&K Government and State Administration against the Army within the state; the Chief Minister of J&K discussed the issue with the Army Chief, the National Security Advisor, the Home Minister, the Raksha Mantri and the Prime Minister. The media, both print and electronic, had a field day bringing defence analysts, political luminaries, experts on Kashmir, separatist leaders face to face for debates with no possible conclusion. The Lokpal Bill and related issues overtook the prolonged AFSPA debate and buried it under the welcome snowfall in Kashmir.

One issue on which there was consensus was that the time was not ripe to repeal the AFSPA while the distrust quotient with Pakistan was still high with no forward movement on talks with the separatists. Mainstream political parties have not had any meaningful debate on the AFSPA and national security is too sensitive to pass judgment to repeal, amend or partially revoke the Act on the basis of a public and media debate.

The solution probably lies in the Unified Command deliberations, wherein the Chief Minister as the Chairman should iron out the system of implementation of the AFSPA with the Army Commander and Security Advisors and appreciate the Army’s perspective of national security.