Repealing AFSPA: Political expediency will harm military operations and help militants
It is the season of manifestos but one merits a closer look.
According to the Congress manifesto, the party would "remove immunity for enforced disappearances, sexual violence and torture” from AFSPA. Several Congress leaders have been inclined to review various provisions of AFSPA for quite some time. While the Ministry of Defence (MoD) and Army HQ have been consistently opposed to changes in the basic provisions of the Act, during the tenure of the UPA government, the Ministry of Home Affairs was reported to have recommended a major overhaul of the Act to bring it in line with egalitarian human rights practices.
The Indian army clearly sees AFSPA as a capstone enabling Act that gives the army the powers necessary to conduct counter-insurgency operations efficiently.
The Act provides army personnel with Constitutional safeguards against malicious, vindictive and frivolous prosecution. These powers are available to the police under the CrPC.
If AFSPA is repealed or diluted, it is the considered view of the army leadership that the performance of army battalions in counter-insurgency operations will be adversely affected — and terrorists or insurgents will be able to seize the initiative.
However, certain sections of civil society view AFSPA as a draconian Act — it has been dubbed 'a license to kill' by Syed Ali Shah Geelani, a hard-line separatist Kashmiri leader. The Act has been opposed in the north-eastern states as well. Irom Sharmila, a Manipuri civil rights activist, undertook a long fast over years to force the government to repeal AFSPA from Manipur and other north-eastern states. It has recently been withdrawn from Manipur and Tripura and some parts of Arunachal Pradesh as well.
The Act was first promulgated in 1958 in Assam and Manipur — and in 1990 in J&K. The main criticism of the Act is directed against the provisions of Section 4, which gives the armed forces the power to open fire — and even cause death, if prohibitory orders are violated.
It also confers the power to destroy structures used as hideouts, training camps or places from where attacks against security forces can be launched; the power to arrest without warrant and to use force for the purpose if necessary; and the power to enter and search premises without warrant to make an arrest or recover hostages, arms, ammunition or stolen property.
Human rights activists object on the grounds that these provisions give the security forces unbridled powers to arrest, search, seize — and even shoot to kill. They accuse the security forces of having destroyed homes and entire villages merely on the suspicion that insurgents were hiding there. They point out that Section 4 empowers the armed forces to arrest citizens without warrant and keep them in custody for several days.
They also object to Section 6, which protects security forces personnel from prosecution, except with the prior sanction of the Central government. Critics say this provision has on many occasions led to even non-commissioned officers brazenly opening fire on crowds without having to justify their action.
However, critics forget that Section 5 of the Act already mandates that arrested civilians must be handed over to the nearest police station ‘with the least possible delay’, along with a report of ‘circumstances occasioning the arrest’. Army HQ have laid down that all suspects who are arrested will be handed over to civilian authorities — within 24 hours.
Regarding firing on civilians, the army’s instructions are that fire may be opened in towns and villages only in self-defence — and that too when the source of terrorist or militant fire can be clearly identified. If soldiers had been opening fire indiscriminately, there would have been hundreds of more civilian casualties in J&K since 1989-90 when the insurgency had begun.
A committee headed by Justice Jeevan Reddy was appointed in 2004 to review AFSPA. Though the committee found that the powers conferred under the Act are not absolute, it nevertheless concluded that the Act should be repealed. However, it recommended that essential provisions of the Act be inserted into the Unlawful Activities (Prevention) Act (UAPA) of 1967.
The key recommendations of the Reddy Committee were reportedly as under:
• In case the situation so warrants, the state government may request the Union government to deploy the army for not more than six months.
• The Union government may also deploy the armed forces without a request from the state. However, the situation should be reviewed after six months and Parliament’s approval should be sought for extending the deployment.
• Non-commissioned officers may continue to have the power to fire.
• Arrested persons should be handed over to the civil police.
• The Union government should set up an independent grievances cell in each district where the Act is in force.
The Second Administrative Reforms Commission, headed by Mr Veerappa Moily, former Union Law Minister, also recommended that the AFSPA should be repealed and its essential provisions should be incorporated in the UAPA.
If this course of action is adopted, it would be a retrograde step that will substantially harm the national cause.
Extraordinary situations require special handling — as the army does not have any police powers under the Constitution, it is in national interest to give it special powers for operational purposes when it is called upon to undertake counter-insurgency operations in disturbed areas.
Hence, the promulgation of the AFSPA along with the Disturbed Areas Act is inescapable.
Army personnel must be given immunity but such immunity must not be absolute — and nor is it so under the present AFSPA. The Central government can and has sanctioned prosecution where prima facie cases existed.
Without these powers, commanding officers and young company commanders are likely to follow a wait-and-watch approach rather than actively pursue hard core terrorists with enthusiasm and risk being embroiled in long-drawn litigation, which may be based on false allegations.
On its part, the army must make it mandatory for its battalions to take police personnel and village elders along for operations which involve the search of civilian homes and the seizure of private property. The practical problems encountered in ensuring transparency in counter-insurgency operations must be overcome by innovative measures.
The army must be completely transparent in investigating allegations of violations of human rights and bringing the violators to speedy justice. And exemplary punishment must be meted out where the charges are proved.
The writer is former Director, Centre for Land Warfare Studies (CLAWS), New Delhi.