The chief minister of J&K, Omar Abdullah, demanded the removal of the AFSPA1 from certain areas of the state. The indication, according to media reports, is the districts of Srinagar, Budgam, Jammu and Samba.2 The army and the Ministry of Defence (MoD) have opposed this stand, citing Pakistan-based proxy war as a credible threat.3 Even as positions have hardened over a period of time, the decision for removing the AFSPA remains fiercely debated.
The act has become “a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.”
The genesis of the act lies in the British Indian Armed Forces (Special Powers) Ordnance, 1942; and after independence, in the Assam Maintenance of Public Order (autonomous districts) Act, 1953; the Assam Disturbed Areas Act, 1955; the Armed Forces (Assam & Manipur) Special Powers Act, 1958; and finally the AFSPA, 1958, with respect to the Northeast. A similar act was enacted for J&K called the AFSPA, 1990.
There have been two serious attempts to challenge the act. On 27 November 1997, the Supreme Court, in the Naga People’s Movement, of Human Rights etc vs Union of India case, upheld the constitutional validity of the act.4 The second was the formation of Justice (Retd.) B. P. Jeevan Reddy Committee to review the AFSPA, 1958, as applicable to the Northeast. The committee recommended the repealing of the AFSPA and its replacement by the Unlawful Activities (Prevention) Act 1967 (as amended in 2004) (UAPA) with the insertion of additional appropriate provisions.5
Arguments against the AFSPA
The arguments in favour of lifting the AFSPA have come from many quarters. Some major objections outlined over a period of time are:
The nature of challenge in J&K is characterised as a proxy war and not merely an insurgency. Therefore, since the security forces are practically facing an external adversary rather than an internal one, there is a need for an appropriate legal mechanism to deal with it.
- The “peace dividends of the summer of 2011 must flow to the people.”6
- The people must get a message that peace is returning to the state, which is evident from lower violent incidents during the recent past.7
- Partial lifting of the act would facilitate opening negotiations with separatists, as they have made a similar demand.8
- It could also test the waters in the troubled state, given low violence levels. This could subsequently facilitate extending the same, if the experiment is successful.9
- The army’s demand for retaining the law in light of it being “detrimental” to security is “theoretical” rather than “practical.”10
- The AFSPA is a relic of the colonial past, with its roots embedded in the 1942 law, which was drafted to suppress the Quit India Movement. This gives it an unsavoury flavour and strengthens the argument against it.11
- The law is out of sync with fundamental values of human rights (HR). This argument is based on cases of HR violations in the past.12
- The very principle of applying the AFSPA is questionable given the opposition of the state government. The withdrawal of the Disturbed Area Act, which is seen as a prerogative of the state, and by correlation the basis for the AFSPA to be applied, has been advocated as the legal measure to abrogate it.13
- There is a vested interest of “security bureaucracies who have gained enormous power and influence” in retaining the AFSPA.14
- Trade cannot improve unless the government lifts the AFSPA.15
In addition to the arguments against the AFSPA, certain generic arguments of the Jeevan Reddy Committee regarding the law are relevant for J&K as well.
- “The act is too sketchy, too bald and quite inadequate in several particulars.”16
- The act has become “a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.”17
Criticism from other analysts also recommends reviewing the act.
- Commenting on the Supreme Court decision to uphold the validity of the AFSPA, 1958, A. G. Noorani called it a statute with “a license to kill” and questioned the judiciousness of not referring to Article 21 of the Constitution, which recognises the right to life.18
- Noorani further refers to Section 4(a) of the act, which states, “. . . after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of death . . . .”19 He calls the section a “statutory obscenity” and goes on to say that it conveys “laxity,” especially given the protection against all legal proceedings without sanction of the central government.20
- He further highlights the inadequacy of the existing law and the judgement in question to reinforce the requirement of “reasonable force” even in insurgencies.21
- The formation of an independent appellate body for looking into complaints against the armed forces operating under the act is also recommended.22
- Highlighting the inadequacies in the law, Charles Chasie and Sanjoy Hazarika felt that the law “legalizes inequality” with an individual forced to prove his or her innocence, failing which, he or she is presumed guilty.23 Taking the example of Nagaland, they stated that the act is the reason for a schism between the people and the government as well as democracy and has “helped to sustain the insurgency by violating people’s human rights.”24
Arguments in favour of the AFSPA
A number of arguments have been made in favour of retaining the AFSPA. Since the act is valid both for the states of J&K and the Northeast, specific aspects related to J&K will be discussed followed by generic issues.
The nature of challenge in J&K is characterised as a proxy war and not merely an insurgency. Therefore, since the security forces are practically facing an external adversary rather than an internal one, there is a need for an appropriate legal mechanism to deal with it.25
- The lifting of the AFSPA could lead to the secession of J&K from the country.26
- Partial lifting of the AFSPA is not possible as military establishments are located in areas like Srinagar and Jammu and need provisions of the act to ensure an effective security and intelligence grid.27
- The movement of convoys cannot be limited to districts under the AFSPA, given the present alignment of major road axes in the region.28
- There is a distinct possibility of districts where the AFSPA is lifted becoming safe havens for terrorists. These can then be used whenever pressure increases in areas where the army is deployed.29
- All the sacrifices and efforts of security forces could be neutralised, pushing back the fight against proxy war by a number of years.30
The generic arguments in favour of the AFSPA that have been advocated are:
- The armed forces are employed as the last resort by the state when faced with critical national security situations. If protective as well as operational instruments are not provided to them, the possibility of their failure will be a national disaster and could have far-reaching repercussions.31
- Security forces are deployed in a region to bring the situation under control. It is neither their choice to move into an area on their own accord nor their choice to leave without orders.32
- Security forces need basic powers to fire at a terrorist, search a suspected hideout, arrest a terrorist and destroy a hideout to follow its mandate. Without these, such operations against terrorists cannot be carried out.33
- The army cannot fight without basic powers to carry out its mandate. It needs operational flexibility and freedom to achieve its mandate.34
- The army and the government have in-house mechanisms to deal with human rights violations, and swift and just action is taken against the guilty.35
- The army has prepared its own list of dos and don’ts to ensure that the conduct of soldiers remains within the guidelines for operations.36
- Most accusations of human rights violations against the army have been proved to be false, and these are instigated and inspired by sympathisers of terrorists.37
Analysis of the problem
The arguments address the issue of reviewing and lifting the AFSPA at a number of levels. These include the psychological, wherein the disconnect between the people and the state is a direct result of the implementation of the AFSPA. Further, the very moral authority of governance is questioned. It also highlights poor human rights implementation as a result of its provisions. The legal issue highlights lacunae within the law in relation to the provisions of the Constitution. The political argument views it as a reason for failure to arrive at an acceptable settlement. Socially, it is seen as an unbridgeable gap between the regions affected by it and the rest of the country.
On the contrary, advocates of the AFSPA argue based on the army being the instrument of last resort and the need for both protection and operational freedom to achieve the desired mandate. Specific to the case of J&K, the element of proxy war further reinforces the army’s justification.
With these as the fundamental arguments governing the debate, it is evident that beyond a point, the two critical partners—the army and the state government—rather than evolving a coterminous approach in the fight against terrorism, may end up becoming a negative influence against the prevailing winds of change. And even if a solution is enforced, as a result of persuasion by either of the two, the resultant mood of despondency of the other would defeat the very spirit of resolution.
This is not to presuppose any inherent flaws in the arguments of the two sides. In fact, the respective points of view clearly indicate certain realities, which have to remain fundamental guiding principles if an acceptable resolution to the issue has to be found. A summation of these would be:
- The case of J&K is unique, with the proxy war being the principal threat faced by the state.
- This threat can be neutralised by forces only if they have the requisite freedom of action and protection against false charges and baseless accusations at the behest of sympathisers of terrorists operating from Pakistan.
- The AFSPA has become a symbol of oppression. Despite serious attempts at preventing its misuse, it will continue to remain a psychological barrier between the local people and the government in general and the army in particular.
- There is a need for greater accountability of security forces operating in the area.
- The strategic decision to remove the AFSPA is the prerogative of the government—the agency that applied it. Inputs and advice from various agencies at the central and state levels must assist in this process of decision making. The army is one amongst these agencies.
- The right to basic protection for security personnel in the region while they operate at the risk of their lives needs to be protected. This can however be simultaneously ensured through adequate safeguards against misuse of the law.
Based on these ground rules, with protection and operational freedom as the key guarantors of the AFSPA, a comparative analysis with the UAPA as amended in 2008, which is considered the most comprehensive antiterrorism law in the country, will be done. However, since the UAPA is not specifically tailored to the immediate requirements of the operational deployment of the armed forces in J&K, additional recommendations of the Jeevan Reddy Committee for inclusion in the UAPA as amended in 2004 will be included to enable a holistic appraisal.38 There have been recommendations for the revocation of the AFSPA by other groups as well. Some of these include the Veerappa Moily Second Administrative Reforms Committee Report 2007, the Hamid Ansari Working Group 2007, and the UN Human Rights Committee 1997.39 However, given the detailed analysis of the AFSPA and the justification of the Jeevan Reddy Committee, the analysis will remain focused to its report.
One of the critical demands of AFSPA supporters is the inescapable requirement for the protection of the personnel of the armed forces during their operational tasks. This concern is adequately addressed through Section 49 of the UAPA, which states:
“No suit, prosecution or other legal proceedings shall lie against – any serving or retired member of the armed forces or para-military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism.”40
The AFSPA as applicable to J&K also provides protection against prosecution unless sanction is obtained from the Central Government in Section 7 of the act.41 However, the UAPA goes a step further and endorses protection for retired personnel as well.
The second issue of concern relates to the powers granted as part of Section 4 of the AFSPA, to armed forces personnel of the rank of noncommissioned officers (NCOs) and above to include: 42
- “. . . after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, any person who is acting in contravention of any law or order . . .
- “. . . destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made . . . or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs . . .
- “arrest, without warrant any persons who has committed a cognizable offence or against who reasonable suspicion exists that he has committed or is about to commit a cognizable offence . . .
- “enter or search, without warrant, any premises to make any such arrest as aforesaid . . .”
- “stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence . . .”
These clauses are seen as the basis for operational effectiveness and decentralised functioning of the armed forces. Section 4 gives powers right down to NCOs, who, along with junior commissioned officers (JCOs) and young officers, form the cutting edge of the operational army against terrorists. It is argued that these powers are the basis of undertaking proactive operations without losing invaluable time after the receipt of information. Given the fleeting opportunities that are more often than not the norm, these provisions are often the difference between success and failure to neutralise terrorists, stop an infiltration bid, or save a section of population in distress.
An analysis of the UAPA read along with recommendations for insertion of additional provisions by the Jeevan Committee Report, which recommends insertion of Section 41(A)(5)(B)(i-iii) in the existing UAPA, indicates the grant of similar powers to include:
- “use force or fire upon, after giving due warning, an individual or a group of individuals unlawfully carrying or in possession of or is reasonably suspected of being in unlawful possession of any of the articles mentioned in Section 1543 of this act . . .
- “enter and search, without warrant, any premises, in order to arrest and detain any person who has committed a terrorist act or against whom a reasonable suspicion exists that he is likely to commit a terrorist act . . .
- “enter, search and seize, without warrant, any premises, and destroy, if necessary, the firearms or any other articles mentioned in Section 15 from any premises/vehicle, vessel or other means of transport . . .”
It is evident from the recommendation that all provisions have been retained to ensure the operational effectiveness of forces operating in an area. It is also seen that objectionable reference to “even to the causing of death” has been removed, which is justifiable given the purported indication to possible recklessness. Thus, serious concerns cited with reference to Sections 4 and 7 of the AFSPA are suitably addressed through these amendments.